Do I have a counterclaim?

[notgoingdown1]

Recieved a summons & petition recently from a JDB attorney. They had put the 30-day mini miranda information in the actual complaint. This was the first contact I had thought I recieved from them.

Going through file cabinet, and I found the first (and only ) dunning letter I recieved from them before the complaint was filed.

This letter is titled SETTLEMENT OPPORTUNITY. RE: GACC/My name. A file number and the balance they are asking in the petition.

"our clients often are willing to accept offers of settlements on their accounts. If you would like the opportunity to make an offer, please complete the bottom of this letter and return the same to our office, all reasonable offers will be considered.

SETTLEMENT AMOUNT OFFEREING: $______

DATE FUNDS CAN BE PAID:______

TELEPHONE NUMBER:________

Sincerely, JDB attorney.

THIS IS A COMMUNICATION FROM A DEBT COLLECTOR. THIS IS A COMMUNICATION TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

there is no 30-day validation notice etc. back then, when I recieved this I did not know about the 30 day validation rights and I just stuck this in the file cabinet and then my head back into the sand.

Do I have a counterclaim here? I basically only want a counterclaim for leverage.

[1stStep]

You could counterclaim, but it won't get too far. They will claim they sent an initial letter with the mini-miranda.

If I were you, I'd attack the JDBs standing to sue.

[Coltfan1972]

They will just say they sent you another letter with the required working on it. They will even back date such letter if necessary. The court will accept due to the old we have regular business procedures in place to mail letters and here is the letter we mailed with those business procedures.

Counter if you want. It's more leverage than if you did not counter, just don't expect anything much to come from your claim.

[notgoingdown1]

They will just say they sent you another letter with the required working on it. They will even back date such letter if necessary. The court will accept due to the old we have regular business procedures in place to mail letters and here is the letter we mailed with those business procedures.

Counter if you want. It's more leverage than if you did not counter, just don't expect anything much to come from your claim.

Coltfan, I am not looking to get any money out of the counterclaim, I really just don't want them to be able to dismiss without prejudice super easily.

but I don't want to throw in a counterclaim that would make me look like a TOTAL jerk to the judge. Would this one be okay just to get a little leverage?

[Coltfan1972]

It won't make you look like a jerk. It's not some way out there legal theory. You will raise the issue and force them to prove they did send you a first notice. It just won't go far, but no, It's not some crazy claim that will make the Judge roll their eyes.

Personally, I would ask for all letters or documents sent to you. Ask in Discovery. Then if they don't provide a first notice, file a counterclaim. Then they would be stuck. They can just wiggle out of this so easy is the only reason I don't think there is much to it.

[KentWA]

Since it is a JDB, you know they are likely to dismiss, your counter claim has very little chance of seeing the inside of a court room. They will likely offer a settlement of dismissal shortly after your answer w/counter claim. I would put it in there since it is a colorable claim and they would have to cough up the letter and of course one of those fancy ROBO-SIGNED affidavits.

[1stStep]

Kent's right...if you do counterclaim, the settlement offer will come rolling in.

[notgoingdown1]

Thank you for your responses!

So any ideas on the wording, I do have the FDCPA regulations bookmarked just not sure the best way to word the counter-claim so as to "encourage" the JDB to dismiss?

[notgoingdown1]

DEFENDANT’S ANSWER TO PETITION OF INDEBTEDNESS

COMES NOW the Defendant, me acting in pro se and for her Answer to Plaintiff’s Petition of Indebtedness as follows:

1. Paragraph 1 is not an allegation; therefore, Defendant does not answer.

2. Denied: Defendant denies ever being provided credit by xxx BANK USA, N.A. Defendant does not have access to the records of xxxx, so Defendant is unable to verify any alleged assignment, which is a matter for the Plaintiff to prove, therefore Defendant denies this allegation. Defendant denies any default to the extent that no “contract” was appended hereto.

3. Denied: Defendant denies any indebtedness to the Plaintiff. Plaintiff’s affidavit is fatally defective and will be so treated in further motions and papers.

AFFIRMATIVE DEFENSES

Defendant reserves the right to incorporate any and all Counterclaims and Affirmative defenses at such time as they become known through the course of Discovery and Litigation.

COUNTERCLAIMS

FIRST CAUSE OF ACTION

Statement of Facts

1. On or about April 8, 2011, Defendant received a telephone call at Defendant’s place of employment

from “JOHN” stating he was a debt collector for Plaintiff. Defendant verbally requested validation of the

alleged debt and also clearly stated that calls to Defendant’s place of employment were not allowed

(See Defendants Affidavit #2).

2. On or about March h, 2011, Defendant received yet another telephone call at Defendant’s place

of employment from another representative stating they were a debt collector for the Plaintiff.

Defendant again verbally requested validation of the alleged debt and again clearly stated that calls to

Defendant’s place of employment were not allowed.

3. On or about March h,2011, Defendant received yet another telephone call at Defendant’s place

of employment from another representative stating they were a debt collector for the Plaintiff.

Defendant yet again verbally requested validation of the alleged debt and again clearly stated that calls

to Defendant’s place of employment were not allowed.

4. On or about March , 2011, Defendant received a telephone message from a co-worker who had

intercepted a call from a representative stating they were a debt collector for the Plaintiff, “for an

urgent matter to be discussed please call back at 1-866-881-2590”. Defendant then faxed a letter(attached as Exhibit A)

to the Plaintiff stating that the alleged debt was in dispute and that all calls to Defendant’s place of

employment were not allowed.

5. On or about April h, 2011, Defendant received a first written communication letter from Plaintiff’s

counsel RE: The Plaintiff, (attached as exhibit where there was no FDCPA 30-written validation

period notice included.

Statement of Claim #1

4. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA

in the following respects:

(a) by failing to send a written debt validation notice within five days of the collector’s initial communication, and notice of Defendant’s right to dispute the debt within 30 days thereby violating 15 USC §1692g( §809(a).

( by failing to cease collection of an alleged debt after the Defendant notified Plaintiff both

verbally and in writing that the alleged debt was disputed, thereby violating 15 USC §1692g(

§809(.

© by continuing to call Defendants place of employment after being notified verbally and in writing

that such communication was not allowed, thereby violating 15 USC §1692g( §805 (a)(3).

(d) by failing to cease collection of an alleged debt and by continuing work-place phone contact, the

Plaintiff used unfair and unconscionable means to collect or attempt to collect a debt, thereby violating

15 USC § 1692f.

(e) by violating the continuing communication, the Plaintiff engaged in conduct the natural

consequence of which is to harass, oppress or abuse any person in connection with the collect of the

alleged debt, thereby violating 15 USC § 1692d(preface).

WHEREFORE, as the Plaintiff falls under the FDCPA definition of a “debt collector” and the Defendant falls under

the FDCPA definition of a “consumer” and according to the FDCPA any debt collector who fails to comply with any

provision of this title(15 USC § 1692 §813 (a) with respect to any person is liable to such person in an amount equal

to the sum of—

(1) any actual damage sustained by such person as a result of such failure;

(2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000.

WHEREFORE, as the Plaintiff has provided no evidence that a debt exists, or that the debt is the responsibility of the Defendant, or that the Plaintiff has standing to pursue this debt, the Defendant prays that this Honorable Court dismiss this suit with prejudice.

Dated this 7th day of December, 2011

Respectfully,

okay, not sure how the counterclaims look, is this the right way to present them along with the answer?

also if someone could help me with the wording at the very end....stuck here

[notgoingdown1]

this is the affidavit I've created to file with the answer and counterclaims.

question, do I need to have a seperate affidavit with the counterclaims?

Do I need to submit exhibit A and B with them as well (the letter I faxed to the Plaintiff and the dunning letter that is missing the 30 day validation notice?

AFFIDAVIT

I, me, BEING DULY CAUTIONED AND SWORN THAT ANY STATEMENTS MADE HEREIN IS SUBJECT TO PERJURY, STATES THE FOLLOWING IS BASED UPON PERSONAL KNOWLEDGE AND BELIEF:

1. I am over xxx) years of age and competent to give this affidavit. I have personal knowledge of the facts

set forth herein, all of which are true to the best of my belief.

2. I am acting pro se in the above named action.

3. Plaintiff's AFFIDAVIT OF ACCOUNT is without merit and has no factual basis under the rules of evidence. It

does not set forth a factual basis to support a claim of personal knowledge of the matter at issue and failed to make

assertions based on personal knowledge as per Oklahoma Statute §12-2056 (E).

4. Defendant avers that she never entered into an agreement with xxx

5. Defendant has no recollection or records of the alleged agreement or the alleged debt within the Plaintiff’s Petition

and disputes the validity of any alleged agreement, any alleged debt, the alleged amount owed, and the manner in

which it was allegedly calculated.

6. Defendant never received or agreed to the terms of any alleged agreement with the Plaintiff and the alleged

agreement, that was referenced by the Plaintiff’s Affiant, was not attached to the Plaintiff’s Affidavit of Account

as per Oklahoma Statute§12-2056 (E).

7. Plaintiff has not provided admissible evidence of indebtedness on behalf of the Defendant, therefore upon

information and belief Defendant denies the allegations set forth in the Plaintiff’s Petition and Affidavit of

Account.

.

8. Defendant disputes and challenges the Plaintiff’s standing to bring suit on the alleged debt that is the basis of the

Petition.

Edited December 8, 2011 by notgoingdown1
brain malfunction