gwheelock915 Posted December 5, 2011 Report Share Posted December 5, 2011 In a nutshell, a suit was filed in IL against wife by JDB. Read the rules and applicable laws and filed a nice MTD. Went to the motion hearing and the judge entered the motion, on the following basis: that the plaintiffs current complaint is stricken, they have 30 days to resubmit, and the trial date for next month stands. The 30 day period passed last week, and am considering a DWP motion, however, I am looking for the judge to just toss the case with prejudice. Any ideas on the best way to proceed? Thanks in advance. Link to comment Share on other sites More sharing options...
Coltfan1972 Posted December 5, 2011 Report Share Posted December 5, 2011 Not to sound too obvious, but a motion to dismiss and you argue the other side did not resubmit (amend) so the suit should now be dismissed and trial data cancelled. However, I don't see you getting with prejudice. The other side was probably not compelled to resubmit, they were probably told to resubmit per some instruction from the court. Then if they did not it is in effect like they are throwing in the towel. Go for it, but just don't think you'll get it. Link to comment Share on other sites More sharing options...
legaleagle Posted December 6, 2011 Report Share Posted December 6, 2011 This may be a curable defect. They may allow the other side a certain amount of time to file an amended complaint to cure what sounds like a default for failure to plead. Here, they give you an opportunity to request this, usually within two weeks. See what your rules say. Should be under "time to plead" or something similar. Link to comment Share on other sites More sharing options...
gwheelock915 Posted December 9, 2011 Author Report Share Posted December 9, 2011 they beat me to the punch and filed a motion to dismiss. we are planning on objecting to their motion, since there is another dispositive motion pending, and they have not paid our costs are required by statute. Will let you know how court goes on the 16th! Link to comment Share on other sites More sharing options...
gwheelock915 Posted December 16, 2011 Author Report Share Posted December 16, 2011 Judge denied their motion to voluntarily dismiss w/o prejudice and entered our motion to dismiss WITH prejudice. Sadly, he denied our request for sanctions. Happy days are here again! Link to comment Share on other sites More sharing options...
Patz Posted December 16, 2011 Report Share Posted December 16, 2011 Well done. Congrats !!! Link to comment Share on other sites More sharing options...
legaleagle Posted December 16, 2011 Report Share Posted December 16, 2011 Sanctions or costs? If the costs were denied by the judge, that may be that. If sanctions were denied but not costs, file agaisnt them in small claims for the costs and cite the statute. Bet they won't fight. Link to comment Share on other sites More sharing options...
MamaCaldo Posted December 17, 2011 Report Share Posted December 17, 2011 Mio DIOS!! You had me holding my breath and biting my nails!!!You have some big kahones amico!! Thank you for sharing!! And congratulazioni!!! Link to comment Share on other sites More sharing options...
gwheelock915 Posted December 17, 2011 Author Report Share Posted December 17, 2011 Thanks everyone for the support! It is appreciated. Now I just need to deflate my ego!LegalEagle, The judge said he didn't think we had any recoverable costs off the top of his head, but here in IL there are a lot of statutes and case law as to what constitutes "costs," but he told me to file for them if I were so inclined. Regardless of the amount, I will file as long as I reasonably know I will get them. As far as the sanctions, he told me to file a motion specifically citing the reasons and case law, but said that my request was for another day.But perhaps the best part of today's proceeding is when the judge asked in astonishment "they want to dismiss the case against you, why are you objecting to that?" To which I calmly replied, "because I want the case dismissed on my terms, not theirs." He heard a few moments of arguments, then sided with me. I only wish more people would stand up for their rights. Illinois is very friendly for debtors rights and it is frustrating to hear 100 cases called and no one stand up. Link to comment Share on other sites More sharing options...
legaleagle Posted December 17, 2011 Report Share Posted December 17, 2011 Here your costs are limited to filing fees, postage, paper and ink, and atty fees if any. Sanctions are for frivolous or improper conduct, wasting the court's time, etc. A little harder to get, it's almost like starting another trial. Link to comment Share on other sites More sharing options...
Coltfan1972 Posted December 17, 2011 Report Share Posted December 17, 2011 But perhaps the best part of today's proceeding is when the judge asked in astonishment "they want to dismiss the case against you, why are you objecting to that?" To which I calmly replied, "because I want the case dismissed on my terms, not theirs."YES !!!!!!!! I love it !!!! Let me translate, If I may. Your Honor, I called their bluff and now they want to fold their hand and take the chips they have already put in the pot out. Not going to happen, no safety net here. You want to fight, let's get it on !!! Link to comment Share on other sites More sharing options...
gwheelock915 Posted January 16, 2012 Author Report Share Posted January 16, 2012 Ok guys, what to do, what to do. Slimy EAF sold the account to ARC, and they had the gall to tell my wife that if she doesn't pay they will get a judgment against her. Verbally told ARC not to contact wife at work anymore. How far would you go with c &d? Any other ideas? Link to comment Share on other sites More sharing options...
bmc100 Posted January 16, 2012 Report Share Posted January 16, 2012 Now that is a FDCPA violation...If you have it tape recorded or if someone else heard the statement, then get a consumer lawyer to file that case...you will get $1,000 and the attorney will negotiate to have the debt eliminated..that way you never have to worry about it again.. Link to comment Share on other sites More sharing options...
legaleagle Posted January 16, 2012 Report Share Posted January 16, 2012 Cease and desist has to be in writing. A second JDB should have even less chance than the first. You know, at some point this has to stop. Theoretically, they can keep selling this debt and keep this guy in court for the rest of his life. Link to comment Share on other sites More sharing options...
Rivertime Posted January 16, 2012 Report Share Posted January 16, 2012 Cease and desist has to be in writing. A second JDB should have even less chance than the first. You know, at some point this has to stop. Theoretically, they can keep selling this debt and keep this guy in court for the rest of his life.Question from a newbie!!!If his case was dismissed WITH prejudice, then how can another JDB file it again???Is it that just the JDB lost, not the claim that lost???Thanks, just wanting to understand,rt Link to comment Share on other sites More sharing options...
gwheelock915 Posted January 17, 2012 Author Report Share Posted January 17, 2012 I checked ARC in my court system, and they have never filed suit against anyone. They called today, asked me if i was mr. (wifes maiden name). Im going to send out a c and d and will ask for dv for giggles. they are putting our account on hold, thank god because these vultures are ruthless. Link to comment Share on other sites More sharing options...
KentWA Posted January 17, 2012 Report Share Posted January 17, 2012 Cease and desist has to be in writing. A second JDB should have even less chance than the first. You know, at some point this has to stop. Theoretically, they can keep selling this debt and keep this guy in court for the rest of his life.This is the very reason I have taken to the "Sue, then ask questions later" or respond to the dunning notice with Summons frame of mind. Link to comment Share on other sites More sharing options...
gwheelock915 Posted January 18, 2012 Author Report Share Posted January 18, 2012 This is the very reason I have taken to the "Sue, then ask questions later" or respond to the dunning notice with Summons frame of mind.Kent, could you expand on that please? Thanks! Link to comment Share on other sites More sharing options...
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