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Will a Judge still apply Sanctions?


Swatch
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Hello, I was wondering if someone might be able to help me. I just received a letter from the Attorney representing BOA stating they are filing a Motion To Dismiss (without) Prejudice. This was a response to my Motion to Dismiss in Lieu of an Answer. The relief I was looking for was for the Motion to be Dismissed (without) Prejudice and for Sanctions against the Plaintiff, and the Counsel representing the Plaintiff. I Motioned for Dismissal (without) Prejudice due to Indiana Trial Rule 17. The reason I asked for Sanctions is because the Plaintiff isn't the current owner of the debt anymore but they still filed suit. I have recorded phone conversations with the Opposing Counsel stating the real party of Interest which is not the Plaintiff that was listed on the Summons/Complaint. I sent these recordings as part of my Motion to Dismiss in Lieu of an Answer and the judge gave the Plaintiff 15 days to respond. They responded with the aforementioned Motion to Dismiss.

My question is can/will the judge still apply Sanctions even thought the Plaintiff filed for the case to be Dismissed?

I'm in Indiana.

Edited by Swatch
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Thanks for your reply Nascar; I agree!!

With them filing a Motion to Dismiss just seems like a way for them to get out of having to answer to what they have done. This just doesn't sit well with me, and I feel as if they are going to get away with it.

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To be awarded costs for an FDCPA claim, the other side would have to show the claim was frivilous and only with the intention to harass. While the claim might lose, I don't see it rising to the level of frivilous and harassing.

That's a huge advantage a lot don't take into account when deciding to file or not for an FDCPA violation. I'm sure it's out there, but I've read some cases that I don't see how they could not be deemed frivilous and the court won't.

A consumer suing, even the atty in error, due to being sued by the wrong party, has the party on tape stating so, and then losing on a procedural rule or some type of immunity, I can't even see in the very worst case being deemed frivilous.

The least sophisicated consumer is not going to know immunity laws.

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Neither do most people.

Exactly, and why I would not worry about any type of sanctions or fees being awarded. Especially, if it is an FDCPA suit. On the flip side, if you won't win, I don't want to try it. They make plenty of mistakes that they can't wiggle out of. I'd just use those.

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How far does this particular immunity extend. For example, would an admission of a serious (i.e. felony) crime be covered?

When you say "admission of a serious crime," I think you may be referring to a different subject, something along the lines of confessing to a crime during the course of litigation, perhaps? That is actually a different subject area.

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I had them try immunity from FDCPA liability since they violated in a letter, but it was a settlement offer letter. They argued since it was a settlement offer it was not admissible and if not admissible of course would leave me no evidence.

I argued you can't shield FDCPA liability just be dressing it up as a settlement offer. I just argued the letter could not be used to establish any FDCPA liability, as far as using the amount in the settlement offer or the alleged details of the contract. However, I dang sure could point out the FDCPA violations in the letter.

You can't threaten me with a lawsuit on an out of statute debt inside a settlement offer and then get the luxury of not having that letter admitted when I counter sue you after you do make good on your threat.

I sued them both. The law firm and their client. The law firm under strict liability for an FDCPA violation and their client for authorizing the lawsuit on an out of statute debt.

The Judge agreed and ruled it was admissible for the limited purposes of me arguing FDCPA violations and not admissible to argue anything else. So they were basically using the same argument as we're discussing here, only they were claiming immunity in written form and we're discussing verbal.

Regardless, no chance (well always a chance for anything, legit chance I mean) you would get slapped with fees or costs arguing it under an FDCPA violation.

Same thing as double jeopardy immunity. If you take the stand and lie about the crime and then are found not guilty. If later the prosecutor has slam dunk evidence, like a video or you admit in an interview, you can still be tried for perjury. The double jeopardy protection (immunity) won't extend to perjury you committed. So you can get nailed for perjury while still having your double jeopardy rights protected.

So I can't see an atty getting blanket immunity just because they are acting in their normal course of being an atty arguing a lawsuit. More on the specific subject, I would defiantly argue immunity does not carry over to pleadings, for the same reason I argued it does not carry over to written settlement offers. If that was the case all an atty would have to do before any written or verbal communication was say I'm offering a settlement. Then state the offer as one cent less than what they are suing for. Then they would have free run to violate and claim immunity under acting as an atty or making an inadmissible settlement offer.

Edited by Coltfan1972
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**UPDATE**

Well after looking at the Case Summary, the case was Dismissed without Prejudice today. No mention of sanctions or anything else, so I guess the sanctions were a no. I'll know for sure when I get the notice from the court.

From the looks of it, it looks as if a comment was going to be made but none was??? It just shows Comment: () Probably just an error.

Thanks everyone for you help, I really appreciate it!!:BigDance:

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