Two dismissal rule/Res Judicata

[befranktome]

Citibank sued me twice, filed voluntary dismissals on both. Now they have filed a third time. I'm not positive but I also think it is out of statute by 30 days.

I haven't been served yet, I just saw the suit filed with the local clerk of court. I have MS and problems retaining information, but I think I can be clear headed enough to file what ever I need to file if I could get some help with where to start.

Should I answer the complaint with an affirmative defense of Res Judicata?

Or should I petition the court for some sort of estoppel?

In some of my research I saw where some people had gotten Attorneys fees awarded for having to defend against a third suit. Should I just try and find an attorney to handle it and collect his fees from them? I couldn't even come up with a retainer because I am on SSI.

Suggestions on a head start before I get served would be appreciated.

So much for a stress free Christmas.

[nascar]

Citibank sued me twice, filed voluntary dismissals on both. Now they have filed a third time.

If both dismissals were voluntary, the following should apply:

RULE 1.420. DISMISSAL OF ACTIONS

(a) Voluntary Dismissal.

(1) By Parties. Except in actions in which property has been seized or is in the custody of the court, an action, a claim, or any part of an action or claim may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or ( by filing a stipulation of dismissal signed by all current parties to the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim. Fl. R. Civ. P. 1.420(a)(1)

[befranktome]

What do I file in response to the new suit? Just an answer siting this? Or should I call the attorney and point it out to them?

[1stStep]

Your chances are better if you file it with the court...this is your first (and hopefully only) affirmative defense - res judicata.

[KentWA]

Here is the tactic I would take, but I enjoy making things painful for the other side.

Find the FL equivalent of Federal Rule 11. It usually has a time line on it of about 20 days. Draft a motion for sanctions against client and counsel for filing improper pleadings and mail it to the other side so it starts the 20 day (or what ever the time is in Florida) clock running. That way you can file it with your answer if they do not pull the case. Also file a motion for dismissal with the answer and get it calendared. You might also file counter claim for harassment. I would be bold enough to ask that sanctions include reimbursement of expenses for travel to any hearing, lost wages, etc due to the egregious nature of the violation.

This should make the lawyer sit up and pay a lot of attention to you.

[Guest usctrojanalum]

Res Judicata does not apply. Res Judicata is Latin meaning "a matter already judged." It's an affirmative defense where there has been a final judgment (meaning a case was decided on the merits by a judge or his designee) and it is no longer subject to an appeal.

[befranktome]

except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim. Fl. R. Civ. P. 1.420(a)(1)

I believe that this qualifies it as having been adjudicated on the merits. If I'm wrong, could you tell me what this means? I really don't want to file something if it doesn't apply.

[Guest usctrojanalum]

My bad, did not even read nascars post. That rule should definitely apply.

[KentWA]

Here is some case law to back it up:

- Google Scholar

There is more in Google Scholar

[legaleagle]

What about vexatious litigation or some sort of abuse of process, Nascar? I know courts prefer that you counter motion them with sanctions during the actual case, but sometimes enough is enough. If a major bank and law firm can't get their stuff together in three tries, it just gets to the point where it is harrassment.

[nascar]

What about vexatious litigation or some sort of abuse of process.

Most vexatious litigant rules I am aware of require the particular litigant to actually lose a certain number of cases within a certain period of time.

As for abuse of process, an abuse of process claim arises when a party attempts to use the court in a way it was not intended to be used.

I personally haven't seen the two dismissal rule satisfy the criteria for either one.

[befranktome]

They keep filing suit at the wrong address. Even after being informed of such and even sending me a copy of the voluntary dismissal to the correct address. They actually have two separate citi accounts and have sued me a total of 5 times on them with voluntary dismissals. They were informed that my son who lives at the address they keep sending process servers to has cancer and that it really upsets him. Yet they continue to do it. Process servers have shown up at his house on behalf of citi a total of 14 times in two years. They know that I'm on SSI and they could never collect a dime from me, so they keep filing these over and over.

When they file and can't serve me because I don't live there, then they file for alias summons then second alias summons then file dismissal and refile the case again and start all over again, alternating between the two cases.

Edited December 16, 2011 by befranktome

[Informed]

Citibank sued me twice, filed voluntary dismissals on both. Now they have filed a third time. I'm not positive but I also think it is out of statute by 30 days.

I haven't been served yet, I just saw the suit filed with the local clerk of court. I have MS and problems retaining information, but I think I can be clear headed enough to file what ever I need to file if I could get some help with where to start.

Should I answer the complaint with an affirmative defense of Res Judicata?

Or should I petition the court for some sort of estoppel?

In some of my research I saw where some people had gotten Attorneys fees awarded for having to defend against a third suit. Should I just try and find an attorney to handle it and collect his fees from them? I couldn't even come up with a retainer because I am on SSI.

Suggestions on a head start before I get served would be appreciated.

So much for a stress free Christmas.

SSI, Social security and veteran's benefits are 100% judgement proof...in other words...no one can attach that income except for back taxes,etc. Citibank sure as heck can't attach it. Now look at your assets...and research Florida debtor exemption law. You may find that you are judgement proof !

[KentWA]

Ok, now that the rest of the story is out, I change my thinking. Are all these suits by the same lawyer as well? If it was me I would counter claim for harassment, intentional infliction of emotional distress, vexatious litigation and stupidity (yeah I know, to bad we can't sue for that one). I would also ask that an injunction against Citi and the Lawyer to not sell asign, transfer for seek any form litigation of the debt, that also bars those parties from ever seeking litigation of any form against you. It is time to use the nuclear option and shut them down for good.

Immediately after filing an answer I would then throw together a press release and fax it to every TV station and newspaper in the state.

[KentWA]

Also if they want to settle, it would be through payment of a whole lot of cash and way more cash in liquidated damages.

[calawyer]

They keep filing suit at the wrong address. Even after being informed of such and even sending me a copy of the voluntary dismissal to the correct address. They actually have two separate citi accounts and have sued me a total of 5 times on them with voluntary dismissals. They were informed that my son who lives at the address they keep sending process servers to has cancer and that it really upsets him. Yet they continue to do it. Process servers have shown up at his house on behalf of citi a total of 14 times in two years. They know that I'm on SSI and they could never collect a dime from me, so they keep filing these over and over.

When they file and can't serve me because I don't live there, then they file for alias summons then second alias summons then file dismissal and refile the case again and start all over again, alternating between the two cases.

I think you could find a lawyer to take this case. They have put you through the wringer and are now filing the second inappropriate case. I bet they are reporting to the CRAs too which they should not if there has been an adjudication on the merits against them by operation of law.

Check the NACA website for a lawyer near you. I think someone will take this case on contingency.

[befranktome]

Two different attorneys keep passing both accounts between them. One is Rubin and Debski, who currently has both accounts with an open suit on them and the other attorney was Patrick Casey who just dismissed the latest one on 6/30/11, who also had both accounts. I'm sure both will claim that they didn't know what the other one had already done.

I'm doing a little bit more research, it appears that I may not be the only person they have tag teamed. They seem to switch lawsuits on anyone who gets non-suited.

Anyway, I am going to see if I can get an attorney. Is this something that legal aid would consider helping me with, or should I just stick to trying to find a consumer attorney?

I did try calling their office and asked for the attorney that filed the latest one to call me back. Seems they don't want to talk to me. Maybe if I could get enough evidence together, a class action could be filed. That would surely make it worth an attorneys while.

Thanks guys, I don't feel so lost any more. I'll keep you posted on what happens.

[calawyer]

Anyway, I am going to see if I can get an attorney. Is this something that legal aid would consider helping me with, or should I just stick to trying to find a consumer attorney?

Try here: Find an Attorney | National Association of Consumer Advocates

[befranktome]

I kind of dropped the ball. I never did find an attorney. As usual, citibank dismissed the 5th lawsuit...again without prejudice.

I've been overwhelmed with my sons radiation, my partners renal failure and my own health taking a nose dive. So I sent a nasty e-mail to citi. I detailed what had transpired and noted that I understood that I may have recourse against them but that all I wanted was for it to stop and be removed from my credit. I pointed out that both cases were considered adjudicated on the merits.

I received a phone call within a few days, letting me know they were sending it to legal and would resolve it as soon as possible. This after I had requested everything be in writing and no phone calls.

Then I received the second phone call, same lady as the first time. She informed me that they had "taken back" the two accounts, that they were sorry it had all happened but that they had no control over the attorney that owned it. Oops, stop! Wait a second. Are you telling me that these attorneys that sued me actually owned those accounts? Long pause, then she avoided the question. Said it didn't matter at this point, that they had taken them back and they were reducing the amount to 0. That no further action would be taken on them ever. But they refused to remove them from the credit report.

I wasn't even going to argue with her. I just very nicely asked her if she could put that in writing for me. Her response was that she thinks she can do that.

So, I'm not sure it would be worth the stress of trying to get it removed from my credit. It drops off in about a year any way. I am concerned about the slip up she made about the attorneys who did this owning the account. I suspect that all these law suits filed by citibank aren't even owned by them. I think they have some scam going on so that JDB's file lawsuits as OC's. I always wondered why citibank never sold the accounts after 5 years.

Anyway, after I receive their letter outlining what they plan on doing, I'll probably start harassing them until they remove it from my credit.

So many times I read peoples stories and never find out what happened. So I thought I would update you all.

Thank you for your help. Just your input helped calm my nerves. Your help made me prepared if they had backed me in a corner. It made me ready to fight. What you do here is amazing.

[legaleagle]

Just curious as to why an OC would sue and dismiss this many times. Do you know why?

[BTO429]

Res Judicata does not apply. Res Judicata is Latin meaning "a matter already judged." It's an affirmative defense where there has been a final judgment (meaning a case was decided on the merits by a judge or his designee) and it is no longer subject to an appeal.

sustained......just what I was gonna say.

At this point you could file an order to show cause and have them explain why so many different suits need to be filed to get a final adjudication of this matter.

Or if you are sure SOL is affect then use it and kill there suit once and for all.

You could even do both.

The fact that they keep dismissing and refiling tells me, and should also tell the court, that they are not prepared for the case and are hoping for a simple default judgment because you didnt show up.