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Does "Dismissed With Prejudice" only apply to the plaintiff or the actual debt?


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I was sued by Midland who apparently had purchased the debt from CitiBank (the original creditor).

I contested the lawsuit in court using numerous constitutional issues and a copy of a cashed check that had "depositing this check constitutes payment in full "written on both sides of it, etc.

After I sent a huge list of interrogatories to Midlands attorneys, I never heard back from them. I am not sure why of all the issues I used, they lost interest in pursuing the debt.

After about five months I made a motion to Dismiss With Prejudice for failure to prosecute.

A hearing was set up and the court told me that they were not getting a response from the plaintiff... the judge decided on his own to postpone and reschedule the hearing date.

I got served a week later by CitiBank for the same debt. (apparently Midland sent the purchased debt back to Citi bank so they could sue me directly)

Now, a few days before the Midland hearing, I got notified by Midland that they have motioned for a Dismissal With Prejudice with the "subject of the dispute being original debt".

It now occurs to me that the Judge delayed the hearing on behalf of Midland to give them time to notify Citi so that Citi would have enough time to begin a law suit against me for the same debt before the dismissal could take place.

The court has not made a formal decision yet but it seems that with both the plaintiff and defendant motioning for dismissal that, that will be the outcome-

I have several questions.

Is it appropriate for the Judge to have rescheduled the hearing date without any formal request from Midland for the obvious reason of giving Citi enough time to enter their own suit against me?

Is there a significant difference between the Judge granting the Plaintiffs motion to dismiss vs my motion to dismiss?

Does the Dismissal Without Prejudice only pertain to the Plaintiff of that case or does it pertain to that debt regardless of who the next plaintiff is?

Is there anyway I can use the Dismissal With Prejudice against Midland to get the new Citi case dismissed?

Doesn't Citi have to show proof that they have purchased back the debt from Midland?

Does anyone know what I should do?

Help!

Edited by watcher7
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In my opinion, your post is filled with way too many assumptions, speculation, and conspiracy theories. I'm not saying you're wrong, but I don't think the judge was conspiring with Midland. Even if he was, you can't prove it. The judge in my case against a junk debt buyer threw out my emotional distress claim, partially granting the junk debt buyer's motion for summary judgment on the emotional distress.

A few days later I get a letter in the mail from the court and a revised order. The judge, on his own motion to reconsider, overruled himself and changed his ruling and reinstated my emotional distress claim. I did nothing, other than at the hearing just putting my objections and arguments on the record and advised him I was giving notice I would appeal when the proper time to appeal was ripe.

So, it can work both ways. The judge, in a perfect world, tries to do what is fair to both sides. A lot of times their hands are completely tied by the rules of evidence and the law.

The judge in my case, at the next hearing, when the other side started in on the revised ruling, just shruged his shoulders and said, "he was right, emotional distress is an actual damage in an FDCPA case. He can submit it to the jury. His hands were tied. Obviously he did not think I had emotional distress claim, that was obvious, he threw out the claim. However, as a matter of law he was wrong, so his hands were tied.

However, when their hands are not tied, they have a ton of discretion. It takes a pretty bad blunder for a ruling or action by a judge to be deemed abuse of judicial discretion. It's a pretty normal feeling, anytime you lose or a ruling or decision goes against you, to feel the judge abused their discretion.

In addition, five months is not a long time for a case to stall. In my state it takes a year of not activity to get a dismissal for lack of prosecution. There was a recent thread where a poster I believe from Missouri (not sure) posted it was two years in their state.

What is odd to me is the alleged buying back of the debt. I have not heard of a case where Citibank bought the purchased account back from the junk debt buyer.

Anyway, does not really matter, as there was never a signed order from the judge dismissing the case. The whole time line and facts make no sense.

Edited by Coltfan1972
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I contested the lawsuit in court using numerous constitutional issues and a copy of a cashed check that had "depositing this check constitutes payment in full "written on both sides of it, etc.

This is worthless, sorry. The cardholder agreement cancels stuff like this, and so do courts. Unless you have a signed agreement in full settlement of the account with a covenanat not to sue, all you did was make a payment.

The rest of this needs clarification. If Midland indeed gave this back to Citibank, it would be a first. If the case was dismissed with prejudice, you might be able to float an argument under res judicata.

I got served a week later by CitiBank for the same debt.

This is what you have to work on. Is this really the same debt? I have never heard of a JDB selling a debt back to the OC. Post the complaint here from Citi, type it as written.

I contested the lawsuit in court

Did you appear in front of a judge, or was this your answer to the complaint? Constitutional issues are very difficult to apply to a credit card case, unless you want to take on an extremely difficult argument under the 14th amendment against account stated.

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From what I have read and observed, many of the same judges who would award a default judgement in favor of the JDB if the defendant (consumer) failed to show are the same ones that are willing to give the JDB another chance if they fail to show for a hearing. I don't think your situation is a case of a specific conspiracy, just a symptom of another problem, the lack of respect some judges have for the time and lives of citizens who are targeted by these JDB's.

There are judges out there who also hold the JDB's to account for any fumbles they may make as well and who demand that they thoroughly prove their case, if there weren't then no one who goes to trial to defend themselves would win.

My take through personal experiance (not a trial but a couple of hearings I had for motions I made) is that the price of admission (filing fees) get the JDB or any other plaintiff a free pass at least once if they miss a hearing or foul up something deemed as minor. Of course in doing this they effectively disrespect the time and trouble a defendant is subjected to and further the defendant is more than likely not afforded the same luxury, just chalk it up as another symptom of the overall corrpt system.

I am not sure if Midland does any debt collection for CC companies, I haven't read much of anything on that, they ususally buy the debts outright and don't act as a gopher for the CC companies but maybe they do. You need to verify who owns the debt.

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Citibank always tries to impose South Dakota law in their cardholder agreements. If you use Idaho's accord and satisfaction, they will probably argue that the agreement states that such payments and attempts at paying off the account are mere trickery and do not constitute a release. After all, most of the check processing is done by machine. I don't think anybody even physically handles these. Even if they do, the workers would be in Citi's Ohio check processing center and would have absolutely no authority to bind Citi to any such notations on your check. If this worked, everybody would send a check for a dollar with this notation and wipe their balance clean. For this to even have half a chance, I would think the check would have to be accompanied by an agreement and sent to Sioux Falls.

I've read a few cases where consumers tried this against them and it failed. They will also argue that as a national bank, Idaho statutes do not apply to them. There may be something in the Idaho banking laws that backs this up. I've seen several state statutes that exempt national banks from any and all state banking regulations. Here's one case where this trick failed:

Eaton v. Citibank

Document 57 :: Eaton v. Citibank (South Dakota), N.A. :: 3:2009cv00414 :: Pennsylvania Middle District Court :: US Federal District Courts Cases :: Justia

Conversely, the Ohio court reversed one of these decisions because of some glitch where Citi did not authenticate the documents. Rather lengthy decision here:

Citibank (South Dakota), N.A. v. Perz, 2010-Ohio-5890.]

Citibank (South Dakota), N.A. v. Perz, (Ohio 2010) - Ohio Supreme Court - Status: 2010-Ohio-5890 - Docket Number: L-10-1033 - December 04, 2010 - December 03, 2010 - Partes: Cosme - vLex

I guess it all depends on who has their paperwork in order and can convince the court that there was actually an offer made and accepted. I doubt a cryptic note on a check will be viewed as such, but what the heck, it's worth a shot. Worst they can do is say no.

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You guys were right.

The sequence of events did not make sense and Citi probably doesn't buy back bad debt after they sell it.

I am incredibly embarrassed to admit this, but the suit from Citi is an all together different matter than the one from Midland.. not the same one.

I am very new to all of this legal stuff and I tend to be conceptual and not detailed oriented. When I saw the law suit from Citi, I simply assumed it was the same one that Midland had sent back to them.. I didn't read the details.

Here is what happened intiallly.

In October of 2010 I notified Citi that I was disputing all charges on all cards that I an my wife had with them and I sent them a Request for Validation demanding numerous items and information.

They failed to respond to my notice and demands.

Midland was the first legal action that was taken against me regarding the Citi cards. I didn't even think about the other accounts because I had grouped them all together in my mind and assumed they were going to group them all together when they filed suit.

I guess the good news is that the Midland suit will be dismissed.

The bad news is that Citi is a new problem to be addressed and I don't think they will back down as easily as Midland did... Midland indicated in their motion to dismiss that the issue was "original debt". I think they saw some issues that I was bringing up that had directly to do with the original lender which they could not address and perhaps Citi would not help them with.

I wish I could use the Midland Dismissal to get the Citi one dismissed since the original dispute was the same and it involved all of the accounts. If anyone has any ideas how I might accomplish that... I am all ears.

I find it curious that Citi sat on the other account for so long before doing anything with it.

Also, why didn't they sell it to Midland like they did the other account?

It was a larger amount, maybe that is why they did not sell it.

Anyway, I apologize for making some false assumptions.

Any suggestions on how to proceed will be welcomed

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I don't think they will back down as easily as Midland did

A pretty good assumption to make. A JDB, when challenged, has a ton more issues proving their case than an OC. An OC is beatable some of the time with an agressive defense. A JDB usually can't even get past standing so the issue of liability for the debt a lot of the time never even comes into play.

I find it curious that Citi sat on the other account for so long before doing anything with it.

40.00 a month late fee, 40.00 over the limit fee, and a default rate of interest in the range of 30% compounding monthly? Citi might be not be doing anything, but the balance is doing something, skyrocketing.

Also, why didn't they sell it to Midland like they did the other account?

It's just all business, start trying to predict what they will do and it's like trying to guess the weather for two months from now. The bottom line is they are going to do whatever they think will make them the most money or help them get as much out of the account before it goes pretty much uncollectable.

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You can fight Citi, but it involves a lot of work and a pretty good understanding of how they operate and what you can do about it. Their main weakness is the same as the JDB's weakness...... they hire the same grade law firms to pursue consumers. This is like taking an apprentice jockey right out of school and putting him in the Kentucky Derby. Collections is apparently the entry level job for law firms; I've seen the work of several Citi firms, and it is utter garbage. They have no clue as to what they are doing. They use regional firms that operate in several states, and apparently they have no expertise in any of them. I can't believe the appalling work they produce. The only advantage they have is that MAYBE Citi has more records and a stronger document case, but from what I've seen, don't count on it. The fact of the matter is that NONE of these banks keep pristine, complete records. How could they? They'd need a computer the size of the Empire State Building going back to 1981. It just isn't feasible. The odd thing is that occasionally they do come up with a day one accounting of the account. I have several cases where they did so. That works to your advantage if they can't produce a day one record for YOUR account.

I stress production of documents first, other types of discovery later as needed. A bunch of internet copy and paste questions will get you nothing. Ask for the application, written agreement, (use that EXACT term) charge slips, complete history of the account, proof of mailing of statements, and any document "setting forth a choice of law provision upon which Citibank relies." See what you get. Probably nothing but a bunch of BS answers and objections, which is EXACTLY what you want. There are a couple of things I hope they tell you, that will form the basis of your defense and counterclaim. I can't say anything else until you do discovery and see what they say. Also, go read up on "South Dakota law." You'll be surprised what you find in sections 53 and 54. You'll need to know this stuff if you want to mount a good defense grounded in law. You may also want to take a look at 12 USC 85, the National Bank Act of 1864, and a very interesting interview with former Gov. Bill Janklow. Google Frontline Interview Bill Janklow Citibank. It's a real eye opener as to how they pulled this scam on the public. Only thing is, they didn't read all the statutes before they moved to beautiful minus forty degree SD. They should have. Amazing what greed and stupid lawyers can do for your company. Too bad for them.

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You can fight Citi, but it involves a lot of work and a pretty good understanding of how they operate and what you can do about it. Their main weakness is the same as the JDB's weakness...... they hire the same grade law firms to pursue consumers. This is like taking an apprentice jockey right out of school and putting him in the Kentucky Derby. Collections is apparently the entry level job for law firms; I've seen the work of several Citi firms, and it is utter garbage. They have no clue as to what they are doing. They use regional firms that operate in several states, and apparently they have no expertise in any of them. I can't believe the appalling work they produce.

This is spot on in my experience as well. The same firm that Midland exclusively uses in my state is the same firm that Citi exclusively uses. Crap1 too. They were utterly incompetent at everything but default judgments and intimidation.

The only advantage they have is that MAYBE Citi has more records and a stronger document case, but from what I've seen, don't count on it. The fact of the matter is that NONE of these banks keep pristine, complete records. How could they? They'd need a computer the size of the Empire State Building going back to 1981. It just isn't feasible. The odd thing is that occasionally they do come up with a day one accounting of the account. I have several cases where they did so. That works to your advantage if they can't produce a day one record for YOUR account.

This is also my experience. I've talked to people who had Citi produce 10 years worth of billing statements and a signed application. On the flip side, the records for my case were so bad that it was unbelievable. An example of how bad was the single billing statement attached to the complaint. The credit limit + the amount over the credit limit did not equal the balance.

I stress production of documents first, other types of discovery later as needed. A bunch of internet copy and paste questions will get you nothing. Ask for the application, written agreement, (use that EXACT term) charge slips, complete history of the account, proof of mailing of statements, and any document "setting forth a choice of law provision upon which Citibank relies." See what you get. Probably nothing but a bunch of BS answers and objections, which is EXACTLY what you want.

I never even received a response to the request for docs, and I asked for most of that. They never pulled the choice of law stuff on me, however, so I sent no discovery requests regarding that. Their answers to my rogs were a bunch of BS objections, and the few that they did answer were evasive. The worst that will happen if you ask for it is that you'll know what they would bring to trial anyway. The best that could happen is that they can be precluded from bringing it to trial, even if they have it.

There are a couple of things I hope they tell you, that will form the basis of your defense and counterclaim. I can't say anything else until you do discovery and see what they say. Also, go read up on "South Dakota law." You'll be surprised what you find in sections 53 and 54. You'll need to know this stuff if you want to mount a good defense grounded in law. You may also want to take a look at 12 USC 85, the National Bank Act of 1864, and a very interesting interview with former Gov. Bill Janklow. Google Frontline Interview Bill Janklow Citibank. It's a real eye opener as to how they pulled this scam on the public. Only thing is, they didn't read all the statutes before they moved to beautiful minus forty degree SD. They should have. Amazing what greed and stupid lawyers can do for your company. Too bad for them.

Yes, the counterclaims. I had them setup for some nasty ones. Their lack of evidence and my bringing evidence in to shoot their claims down probably would have netted me a dismissal without prejudice. The complete clownmanship of their attorneys (in my case, plus another one where they were sued and lost, taking the bank with them) plus the potential counterclaims along with the turned that into a voluntary dismissal with prejudice.

IMO, it's good to pay attention and to document every little thing that they and their attorneys do. You'll probably end up with something that you can use to go on the offensive.

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They never pulled the choice of law stuff on me

No? Pull it on them. When you study SD law, you'll find all the holes they never counted on. Read sections 53 and 54. Then you send your discovery in which they will give the standard answers. You'll see how fast they try to disavow SD law when they realize what they did. Too bad, they are stuck with SD interest rate law, so sayeth the Comptroller of the Currency. I can give you the opinion letter that says so. Don't like SD law all of a sudden because it doesn't fit your case? Gee, what law would you like to use? Hawaii? How about Cuba? I know, let's use Saudi Arabia where interest is illegal. Make them eat their own words. I can just picture Allen Shore from Boston Legal taking these people on. Wanna see how they set up this scam? Google Frontline Interview Bill Janklow Citibank. That tells it all.

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They never pulled the choice of law stuff on me

No? Pull it on them. When you study SD law, you'll find all the holes they never counted on. Read sections 53 and 54. Then you send your discovery in which they will give the standard answers. You'll see how fast they try to disavow SD law when they realize what they did. Too bad, they are stuck with SD interest rate law, so sayeth the Comptroller of the Currency. I can give you the opinion letter that says so. Don't like SD law all of a sudden because it doesn't fit your case? Gee, what law would you like to use? Hawaii? How about Cuba? I know, let's use Saudi Arabia where interest is illegal. Make them eat their own words. I can just picture Allen Shore from Boston Legal taking these people on. Wanna see how they set up this scam? Google Frontline Interview Bill Janklow Citibank. That tells it all.

I was going to use NM consumer law against them and their subsidiary, CCSI. CCSI would have been fun to win against because they have property not more than 5 or 6 miles away from where I am currently sitting. I was getting very close to enough for a state IIED claim against them. I not only would get little ulcers on my skin from the stress, I would have been marching a psychiatrist in to testify. The quota system stuff that I was asking in discovery is what I would have needed.

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