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Second time around here with OC. First time the judge dismissed without prejudice at pre-trial . He stated (verbally) that he would not allow the plaintiff to bring this lawsuit again unless they had more evidence or proof.

Now we have a new judge, same case, same exact incomplete evidence against me. We are heading towards pre- trial. I am thinking of filing a motion for summary judgement based on the above. Does this make sense? I am sick of wasting so many hours sitting in a courtroom. If they couldn't prove it a first time how can they now?

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Your counter claim: This action is barred under the equitable estoppel rule where a court will not grant a judgment or other legal relief to a party who has not acted fairly; for example, by having made false representations or concealing material facts from the other party. This illustrates the legal maxim: "he who seeks equity, must do equity."

The Plaintiff failed to show for court and the judge dismissed the case. It is not fair practice for the courts to allow a Plaintiff to refile in another court because a judge in another court rule against them because they did not have proper evidence to prove a claim and they also failed to show up for a court date.

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You also have this option which would be a stronger argument than the former.

RES JUDICATA

The doctrine of res judicata prevents a litigant from getting yet another day in court after the first lawsuit is concluded by giving a different reason than he gave in the first for recovery of damages for the same invasion of his right. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." A final judgment on the merits bars further claims by the same parties based on the same cause of action.

Res judicata prevents a plaintiff from suing on a claim that already has been decided and also prevents a defendant from raising any new defense to defeat the enforcement of an earlier judgment. It also precludes relitigation of any issue, regardless of whether the second action is on the same claim as the first one, if that particular issue actually was contested and decided in the first action. Former adjudication is an analogue of the criminal law concept of double jeopardy.

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My thoughts are that what they have done is a 1692f violation, but I could be wrong there. If you can find evidence of what the judge told them, you may be able to use it to slap them down via a claims against the law firm. Filing another case in the hopes of finding a more friendly (to them) judge after the first judge said that their evidence sucks is unconscionable in my mind.

You may also be able to use it as part of a MTD for failure to state a claim. The first judge thought that they had insufficient evidence. That should count for something, IMO.

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Another thing I've come to realize from all my reading on this forum and other sites is that playing defense is not always enough. Especially dealing against an OC. This is when a good offense is needed, and frankly, that isn't my forte.

I just want this to go away. I likely have a slew of counter claims against these morons but I just don't want to be bothered. Getting back to my previous life is all I want, although believe me, I would be happy to get back some of the money I flushed away in this cause so far.

My debts are all late fees and over the limit fees caused by late fees compounding. I paid many many times over for any amount actually borrowed.

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Another thing I've come to realize from all my reading on this forum and other sites is that playing defense is not always enough. Especially dealing against an OC. This is when a good offense is needed, and frankly, that isn't my forte.

I just want this to go away. I likely have a slew of counter claims against these morons but I just don't want to be bothered. Getting back to my previous life is all I want, although believe me, I would be happy to get back some of the money I flushed away in this cause so far.

My debts are all late fees and over the limit fees caused by late fees compounding. I paid many many times over for any amount actually borrowed.

I understand your sentiments. What you're going through is friggin' stressful and it lasts for a loooooong time. You are being forced to get a couple of years worth of law school education in a few months. It's a trial by fire.

Look at it this way: If you win, you'll come out of this stronger and more confident.

If you don't mind my asking, who is the OC? If you are worried about tipping somebody off, then I won't be offended if you don't answer.

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He stated (verbally) that he would not allow the plaintiff to bring this lawsuit again unless they had more evidence or proof.

Hate to make it look like I'm for the other side, because I am not, for sure!!

However, assuming the judge said it the way you wrote. If they have even one word, document, witness, ect of evidence than before they have more evidence or proof.

Now that evidence or proof might be useless, inadmissible, a crock, perjury, ect, but it is more evidence.

If I want to sell my car for 25,000 and somebody offers me 10,000 and I tell them don't call or contact me until you have a different or better offer than 10,000. They call me and say i'll give you 10,001, they have called me with a different offer.

I know the intent and the spirit of the statement. However, as you are learning, this is the law. Expect the other side to not share in your analysis of their "new or more evidence" as being the same old garbage and losing arguments.

If they are coming at you with anything, no matter how trivial, they have complied with the first judge's order. An FDCPA violation, that might fly, maybe on a good day with the right judge. You get persumed the least sophisicated consumer for FDCPA purposes.

If their new evidence is minimal or inadmissible, I might try an FDCPA violation, but in my opinion still a long shot.

Res Judicta is where you need to be looking. While not near the powerful punch it is somewhat, along with dismissal with prejudice, the civil court's double jeopardy protection.

On the flip side, if you beat em once and they are coming at you with the same old garbage, beat em again, but counterclaim.

If Larry Flynt can countersue Jerry Falwell for copyright infringment for copying the Hustler article, where Larry accused Jerry of his first time being with his mom in an outhouse, and win, surly you can come up with something.

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You also have this option which would be a stronger argument than the former.

RES JUDICATA

The doctrine of res judicata prevents a litigant from getting yet another day in court after the first lawsuit is concluded by giving a different reason than he gave in the first for recovery of damages for the same invasion of his right. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action, the parties to the suit and their privies are bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." A final judgment on the merits bars further claims by the same parties based on the same cause of action.

Res judicata prevents a plaintiff from suing on a claim that already has been decided and also prevents a defendant from raising any new defense to defeat the enforcement of an earlier judgment. It also precludes relitigation of any issue, regardless of whether the second action is on the same claim as the first one, if that particular issue actually was contested and decided in the first action. Former adjudication is an analogue of the criminal law concept of double jeopardy.

If the judge dismissed the case without prejudice, it is not considered a final ruling for the application of Res Judicata, is it? The merits of the case have not been ruled upon by a judge or jury.

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I do not think an FDCPA violation will apply against an OC. You may have violations in the Truth in Lending Act though. Especially, with Cap1 who likes to use the perpetual over the limit fee caused by interest. Look at your statements carefully, my guess, they set you up every month to get an over the limit fee even if you made the minimum payment.

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First of all I want to say I appreciate all the replies to my post.

It is not Cap 1. Not many OC's go after charged off accounts so anyone wondering can probably make a reasonable guess.

I lost count of the otherwise out of work cheap lawyers that show up in the name of the sleazy law firm handling this account.

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I do not think an FDCPA violation will apply against an OC. You may have violations in the Truth in Lending Act though. Especially, with Cap1 who likes to use the perpetual over the limit fee caused by interest. Look at your statements carefully, my guess, they set you up every month to get an over the limit fee even if you made the minimum payment.

I agree a long shot at an FDCPA violation, but if one was to be had it would be against the attorney, assuming it is the same attorney. If not the same, then maybe a state law violation.

A lot of long shots in my opinion. However, I once hit a 103-1 at the horse track. It sure is fun when a long shot, you have money on, wins. :mrgreen:

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I am sorry I was half asleep when I posted yesterday

If it was dismissed without prejudice they can refile.

With prejudice is a final decision and comes under res judicata.

Normally, at least where I live when a case is dismissed without prejudice the Judge will stipulate in writing, according to rules of trail procedure just how long the Plaintiff has to refile before the decision becomes final.

Read you rules of trial procedure in your state and see exactly how long they have to refile.

How many times have they refiled?

Edited by BTO429
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The way I see it, The original judge still has jurisdiction.

I say this because the statutes for motion to vacate are 6 months, the right to appeal is 6 months if no judgment is rendered. So you can argue improper venue with new judge and Motion for change of venue to the original judge.

also The whole reason they dismissed is because they had no open book records or any of those things necessary for an account. They cannot come now and say we got it now.

They are estopped from claiming anything now because the original judge hasn't lost jurisdiction. They could have filed a motion for new trial but they failed to do that. They could of file for Judment notwithstanding the verdict but they failed to do that. So they are estopped from filing a new case. When the judge dismissed without prejudice that started a clock for post-trial motions.

If I remember correctly venue is tied to the judge not the courtroom. Judge-shopping is not allowed. So a motion for change of venue for the original judge would be proper. also res judica would figure into it.

It sounds like the gamed the system to get this judge(can happen). You can get a recusal to the original judge or any other to level the field.

Make a counter claim for improper venue under FDCPA also.

You can also motion for dismissal with prejudice to the original judge for their failure to appeal or post trial motions and sanctions. I believe you are still in the window for a motion to vacate that would tie the cases together. I don't know what the call it It is the opposite of bifurcating a case. then you would have the old judge again.

Does anyone think this is a bad idea. it might work for alot of people.

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Thank you SeaDragon, for shedding the light I was hoping to find on this site, which never fails me!

The original judge said he would not allow these clowns to bring this back to HIS COURT, that is not without a good reason ( meaning further evidence, of which they have NONE).

So, thanks to you, now I am thinking this case belongs in HIS court , and now I will follow your advice.

Think I could write a book on this experience, in which I have so far prevailed, but the last chapter is not ready to be recorded.

I will be back! By the way its about eight grand, and the bank is owned by Morgan Stanley, for anyone interested. It starts with a D.

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