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Missouri statutes clarification


cyndi101
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Missouri Statute 509.010 There shall be a petition and an answer; and there shall be a reply if the answer contains a counterclaim denominated as such...and 509.260 The plaintiff shall file his reply to a counterclaim in the answer within twenty days after filing of the answer.

I filed my answer with counterclaims (clearly stated as such with proper sub heading) on 10/31/11. Does this mean the plaintiff has to file an answer to my counterclaims by 11/20/11? (which they haven't). What happens if they don't?

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Missouri Statute 509.010 There shall be a petition and an answer; and there shall be a reply if the answer contains a counterclaim denominated as such...and 509.260 The plaintiff shall file his reply to a counterclaim in the answer within twenty days after filing of the answer.

I filed my answer with counterclaims (clearly stated as such with proper sub heading) on 10/31/11. Does this mean the plaintiff has to file an answer to my counterclaims by 11/20/11? (which they haven't). What happens if they don't?

Technically speaking, they are in default for failure to plead. This is a curable defect. I cannot get into the MO rules for some reason, I get something called "wayback machine" and the pages never load. Anybody have a good source that works? Anywway, in CT (all I have to go by) you file a simple motion for default for failure to plead. They will then have 15 days to "cure" the problem by pleading as required. They will then file a motion to set aside the default, which will be granted by the clerk. Filing these motions on the exact last day is frowned upon. I'd wait a week before filing, it could be in the mail for all you know. If they still don't plead after having the motion filed, then you file a motion to have the case dismissed. Here, it is called nonsuit. That means the case is over and they won't be able to refile.

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It looks like in MO that there is no notice of default required to be sent to counter defendant. MO Rule 74.05 is the rule that applies. It does look like you are going to have to make a prima facie case for damages though.

The interesting thing about these rules is the to vacate a default in MO the defaulting party must show they have a Meritorious Defense AND a very good reason for defaulting. From the bit of case law I saw online, Oh we were busy or did not know we had to answer is not an allowable exuse.

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One other thought is to just let it lie for a while, under the rules since they did not respond, they have admitted. Then you can slam it down on them hard later on when they will not be able to say Oh we were only a few days late. If you had some counter claim in there that really takes the legs out of their case like that they filed a baseless suit, it can torpedo them completely.

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Here's the Counterclaims I filed:

1. Defendant requests that Petitioner's suit be dismissed with prejudice, that EQUABLE ASCENT

FINANCIAL take nothing by way of its Petition, and that a judgment be entered against the Plaintiff for any

counterclaims, court costs, and attorney fees, along with any further relief the court deems just and proper.

2. Defendant seeks injunctive relief restraining EQUABLE ASCENT FINANCIAL, its agents, servants,

employees, successors and assigns, and all others in concert and privity with EQUABLE ASCENT FINANCIAL,

from bringing any lawsuit or threat against Counterclaimant as a result of this action.

3. Plaintiff's Petition contains false and misleading statements designed to coerce and intimidate the Defendant.

These statements have resulted in a violation as described by 15 U.S.C. § 1692e of the Fair Credit Debt Collection

Act (FDCPA),: A debt collector may not use any false, deceptive, or misleading representation or means in connection

with the collection of any debt.

5. Defendant seeks statutory damages in the amount of $1000.00, plus punitive damages to be determined by

the court. By way of this Petition, Plaintiff intentionally or negligently caused, or intended to cause, Defendant severe

emotional distress.

6. Defendant prays this case be dismissed with prejudice along with any further relief the court deems just

and proper and with costs adjudged to the Plaintiff.

7. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a

later time, including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection

Practices Act, and the Fair Credit Reporting Act.

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These are written as prayers for relief other than #3. They would likely get more time to answer. I would give it another few weeks and then seek motion for default on the FDCPA claim.

give them a little more line before you set the hook. If you jump on it they will say was in the mail.

pretty solid footing for you

dead JDB walking:ancient:Game over douchebags

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I don't like the way you wrote this up. A counterclaim should be structured as a complaint. The complaint should set forth facts which put the defendant on notice as to what the plaintiff intends to prove.

RULE 55.05 PLEADING SETTING FORTH CLAIMS FOR RELIEF SHALL CONTAIN WHAT

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A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader claims to be entitled.

I didn't see yours as mailed, but if what you posted here is what you sent, the form is defective.

RULE 55.02 CAPTION OF PLEADING WHAT SET FORTH

--------------------------------------------------------------------------------

Every pleading shall contain a caption setting forth the name of the court, the title of the civil action, the file number and a designation as in Rule 55.01. In the petition, the title of the civil action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

There is some repitition of matters in your counterclaim as well. Rather than show you how to write one at this time, I will put on my "mean rotten nasty opposing counsel" hat and give you a sample of how they may answer this, if they even feel that they have to. Some lawyers, upon receipt of a fatally defective pleading, won't answer it. They will let you file another motion and eventually, they will get you in front of a judge and drop a 5000 lb bomb on you. You'll be left standing in front of a judge with the dubious job of having to explainto him why you don't know the rules of his court. Not a pleasant experience. See next post.

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You may get something like this, or more likely, it will be in the form of a motion to strike your counterclaim.

1. Defendant requests that Petitioner's suit be dismissed with prejudice, that EQUABLE ASCENT FINANCIAL take nothing by way of its Petition, and that a judgment be entered against the Plaintiff for any counterclaims, court costs, and attorney fees, along with any further relief the court deems just and proper.

Equable moves this Court to strike the defendant's counterclaim in its entirety, as it is fatally defective for the reasons stated herein. Paragraph one is improper to the extent that it is nothing more than a thinly disguised motion for summary judgment.

2. Defendant seeks injunctive relief restraining EQUABLE ASCENT FINANCIAL, its agents, servants, employees, successors and assigns, and all others in concert and privity with EQUABLE ASCENT FINANCIAL, from bringing any lawsuit or threat against Counterclaimant as a result of this action.

Defendant's pleading format is improper. Additionally, defendant seems not to know the difference between a counterclaim and a plea for injunctive relief, which is improperly contained herein.

3. Plaintiff's Petition contains false and misleading statements designed to coerce and intimidate the Defendant. These statements have resulted in a violation as described by 15 U.S.C. § 1692e of the Fair Credit Debt Collection Act (FDCPA),: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt.

Defendant sets forth no facts in support of this allegation, therefore the paragraph is fatally defective

5. Defendant seeks statutory damages in the amount of $1000.00, plus punitive damages to be determined by the court. By way of this Petition, Plaintiff intentionally or negligently caused, or intended to cause, Defendant severe

emotional distress.

Defendant has improperly mixed a prayer for relief with an improper plea for punitive damages, which are not provided for in the statute under which defendant seeks relief, and two other factually unsupported causes of action: negligence and emotional distress. Therefore, the paragraph is fatally defective.

6. Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper and with costs adjudged to the Plaintiff.

This paragraph improperly repeats paragraph one.

7. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

This statement is unnecessary and improper in a civil complaint. If defendant has such claims, defendant should incorporate them into a properly drafted coounterclaim that conforms to the rules of civil procedure.

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If they do this, can I file an amended counterclaim?

The problem here is that I see no real basis for the counterclaim in what you wrote. In any complaint, you have to give some facts that tell the defendant what you intend to prove. Simply accusing them of making misrepresentations isn't enough, you have to give some details, and those details should conform to the statute under which you seek relief. A lot of blanket accusations followed by a request to dismiss the case doesn't strike me as something a judge would want to grant.

You are also mixing in the theory of injunctive relief, which requires that some imminent harm or injury be plead. Usually that is a separate motion, and they are rather difficult to win. What you are asking for sounds more like a request for a dismissal with prejudice. It may be premature for that, judges like to give people a chance to prove their case.

Coercion, intimidation, emotional distress, and negligence are a stretch in my opinion. Those are serious charges and require proof. They would have had to really violate the FDCPA in a way that you could prove, like a recorded phone call or a letter they sent you. Also, punitive damages are not provided in the FDCPA beyond attorney's fees as I read it. In my state, the court can award costs as most do, but punitive damages beyond any statutory damages can only be awarded if you sue under the unfair trade practices act.

Again, you have to back up the claim with facts. Otherwise, you can file an amended answer (if the rules allow) without the counterclaim or with a new one if you think you can prove it.

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Recall, the FDCPA does not provide for injunctive relief. It affords a legal remedy, not an equitable one. See, e.g., Bradshaw v. Hilco Receivables, LLC, 765 F. Supp. 2d 719 (D. Md. 2011) (injunctive relief is not available under the Fair Debt Collection Practices Act).

Injuctive relief is an equitable remedy. An equitable remedy is available only when no legal remedy is available.

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Recall, the FDCPA does not provide for injunctive relief. It affords a legal remedy, not an equitable one. See, e.g., Bradshaw v. Hilco Receivables, LLC, 765 F. Supp. 2d 719 (D. Md. 2011) (injunctive relief is not available under the Fair Debt Collection Practices Act).

Injuctive relief is an equitable remedy. An equitable remedy is available only when no legal remedy is available.

You see attacking the plaintiffs laterally is also allowed. Kinda like tagging up in wrestling.

Of course you can also call a couple of the class action attorneys who are kicking the plaintiff's asses and get another case going.

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You see attacking the plaintiffs laterally is also allowed. Kinda like tagging up in wrestling.

Of course you can also call a couple of the class action attorneys who are kicking the plaintiff's asses and get another case going.

being a class representative could be easy based on the violations that are committed every single day. such as using an affiant with no personal knowledge, inflating the debt, trying to collect lawyer fees when they are not authorized(failure to send pre complaint letter), charging interest in excess of the amount allowed by law).

so calling an attorney who is already conversant with the violations could be a good move.

Not saying filing class claims on her own. just advocating perhaps a flanking maneuver.

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So, after the hearing Tuesday, would you recommend me talking to one of the attorneys that have contacted me?

may not have been contacted by the plaintiff's. It may also be that the case was listed in the local paper and they saw it so if you do contact them ask them how they came upon the case.

and to show the outcomes from recent cases for them.

Caution in this regard may be highly warranted as they contacted you out of the blue. That raises all kinds of warning flags for me.

Anybody else creeped out by the attorneys contacting the OP before service was completed?

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being a class representative could be easy based on the violations that are committed every single day. such as using an affiant with no personal knowledge, inflating the debt, trying to collect lawyer fees when they are not authorized(failure to send pre complaint letter), charging interest in excess of the amount allowed by law).

But, what are the duties and responsibilities of the class representative?

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Seadragon, I received letters from three different attorneys in the area, and they all said they saw the case on CaseNet (Missouri courts' database). Contact from the first one is how I found out about the case. I told my husband then that I wasn't sure I wanted an attorney who trolls CaseNet for clients. But after I received two more offers for consultation, I started to think they all did it. I really want to see how it goes Tuesday, and then depending on what happens, I may need an attorney. I have never had a credit card with the bank they say is the original creditor, so I intend to do everything in my power to win this case. If I lose, I will at least know I gave it my best shot.

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In case you were thinking about decptive trade practices, MO has not adopted the law per se. This only covers advertising and consumer merchandise.

§ 407.025 R.S.Mo.

Civil action to recover damages — class actions authorized, when — procedure

1. Any person who purchases or leases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 407.020, may bring a private civil action in either the circuit court of the county in which the seller or lessor resides or in which the transaction complained of took place, to recover actual damages. The court may, in its discretion, award punitive damages and may award to the prevailing party attorney’s fees, based on the amount of time reasonably expended, and may provide such equitable relief as it deems necessary or proper.

Edited by legaleagle
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