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Being sued by new attorney on a case that was dismissed also SOL questions


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I had won a MTC for arbitration Nov 2011, and Jan 2011, the case was dismissed (general dismissal) because Discover banks attorneys at that time did not file a ARB case.

About 2 weeks ago I come home after being out of town to a summons taped to my gate filed by a new attorney with a new case# for the same account. I need to answer with in the next day or two.

My thoughts are to file a motion to dismiss with prejudice Res judicata.

"Res judicata bars relitigation of 'an issue that has been

definitively settled by judicial decision,' or can be 'an affirmative

defense barring the same parties from litigating a second lawsuit

on the same claim, or any other claim arising from the same

transaction or series of transactions and that could have been — but

was not — raised in the first suit.' Adams Bldg. Corp. v. Cadle

Co., 2008 WL 384230 (Mass. Land Ct. 2008) citing BLACK'S LAW

DICTIONARY (3 1d ed. 1996).

And to state that this case has already been heard under case # XXXXX has been compled to ARB and was dismissed January 2011 due to the fact that no sufficient showing has been made to continue the case.

My next question is about SOL. The Discover card agreement states it is governed by Delaware law the complaint

filed with the local court 2009 states governed by Delaware law. Delaware's SOL is 3

years. My state's SOL is 5 years, since they stated they are governed by

Delaware law in the complaint wouldn't my local court have to go with the 3 year

SOL.

My last payment was made December 08 and reflected on January 09 statement,

February 09 shows no payment, with no payments made since then. But they do show

purchases up until August 09, which are late fees and overdraft fees. I did not

use the card to make any purchases.

So in this case does the SOL start the end of the January statement or the end

of the August statement period? And does the filling of this new lawsuit stop the SOL clock.

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I would motion for dismissal based on both arguments. They have already been told that they must arbitrate rather than go to court once. By raising both arguments you double your chance to get the dismissal.

The late fees are not purchases and do not effect the SOL. If they state in the complaint it is governed by DE law, then they have already conceded that the DE SOL applies. The SOL stops running at the time they filed. However in some states SOL stops for the period of time that litigation is ongoing (i.e. you must subtract the time from filing to dismissal of the first suit). You would need to do some case law research to find out if it is that way in Oregon.

You did not state if this was a JDB or OC. What is the arbitration forum?

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Both cases where and are attorneys for discover bank I do not know if either of them had bought the debt.

The agreement I had at the time of the first trial where I won the MTC and was dismissed, stated NAF and AAA as forums. If this does go to ARB I was going to push for JAMS which their agreement now has listed.

As for as the SOL are you saying that the year the spent during the first litigation would not be included in the count down. I was hoping if this was dismissed that next week Delaware's 3 year SOL would be up.

Edited by oregonpilot
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If the first set of attorneys failed to move forward with arbitration, they could now be in contempt of court - depending on what the court's ruling said.

Also, the second set of attorneys could be in violation of the FDCPA with respect to arbitration...and they could even be subject to the court's ruling in the first ruling.

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The SOL starts when the account went into default. Dismissal without prejudice usually leaves you vulnerable to a future suit. Res Judicata means that the court made a final ruling in the case. Cases dismissed voluntarily without prejudice do not qualify as far as I have seen. You must argue for the case to be dismissed with prejudice. If you did not do that, which most people do not do because they do not understand dismissal, they leave themselves open to another suit.

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The order states it is a "General Judgement of Dismissal", a term I have not heard disscussed on these boards. "It is hereby ordered and adjudged that the above entitled case is dismissed".

Is that not adjudicated. Not having a law backround I find I interpit these thing in the wrong way.

Also, The reason for the dissmisal was that I elected ARB and it was ignore by Discovers prior counsel. I filed a MTC ARB and it was granted, This agreement states “IF EITHER YOU OR WE ELECT ARBITRATION, NEITHER YOU OR WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM.”

During the hearing they argued that I never filed a ARB claim I replied that it was their claim to file and that I was not a attorney and could not file a claim against myself on their behalf, but when they do file I have counter claims to file against them. One being that we are here today in this court after I had elected ARB.

After about 2 months of no action or contact from Discover or their prior attorneys the judge ordered a General Dismissal January 2011.

Edited by oregonpilot
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I have to file my answer today.

Here is my #1 defense, I wanted to kmow if it looks OK.

AFFIRMATIVE DEFENSES

1. Court has already decided on this claim (res judicata).

Case No: 955XXXX was filed by Discover Banks prior counsel, Bishop,White & Marshall, P.S. for the same balance of XXXXXXX.

A Motion to Compel Arbitration was filed by the Defendant as per, Discover Banks account agreement.

This agreement states “IF EITHER YOU OR WE ELECT ARBITRATION, NEITHER YOU OR WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM.”

The agreement also contains outlines for the procedure for initiating arbitration as follows.

Governing Law and Rules. Your Account involves interstate commerce and this provision shall be governed by the Federal Arbitration Act (FAA). The arbitration shall be conducted, by either the American Arbitration Association (AAA) or the National Arbitration Forum (NAF) in accordance with their procedures in effect when the claim is filed.

During the hearing on this motion the defendant presented proof of election and the Motion was granted. (SHOULD i ADD "and so ordered " HERE)

Due to the fact that Discover Banks prior counsel failed to proceed with their claim in the arbitration forum, the Honorable Daniel ANY NAME

Ordered and Adjudged this case Dismissed, On January 05 2011.

Edited by oregonpilot
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Don't get all wordy, just uses state:

1. Res Judicata, this court has previously adjudicated this claim.

Then right away file a motion to dismiss with sanctions. In that motion simply state that the court has previously compelled arbitration and dismissed the action. The Plaintiff is now in contempt of this court by bringing this action again when they clearly have no right to bring such action. Their refiling is not only in contempt of previous court orders, but also a form of harassment and abuse of process. Then attach the previous rulings as exhibits. They likely are going to run real fast. If you want to really hang them up, counter claim them.

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Thank you KentWA

I thought the same thing about being to wordy and simply put,

Court has already decided on this claim (res judicata). With the case #

I plan to file a motion next week to dismiss with prejudice. And get a little more wordy.

Here is what I found in Oregon Statutes chapter 18.

How do you guys interpret this. As I have said before not having a back ground in law I often interpret things the wrong way.

(2) A general judgment incorporates a previous written decision of the court that decides one or more requests for relief in the case and that:

(a) Is not a judgment;

(B) Is consistent with the terms of the general judgment and any limited judgments in the case; and

© Reflects an express determination by the court that the decision be conclusive as to the requests for relief that are resolved.

(3) Upon entry of a general judgment, any request for relief in the action that is not decided by the general judgment or by a previous limited judgment, that has not been incorporated into the general judgment under subsection (2) of this section, or that cannot be decided by a supplemental judgment, is dismissed with prejudice unless the judgment provides that the dismissal is without prejudice.

(4) Subsection (3) of this section does not affect the right of any party to assign error on appeal to any decision of a court made by order during an action.

(5) Subsection (3) of this section does not apply to a general judgment of dismissal. Except as otherwise provided by law, by the Oregon Rules of Civil Procedure or by the terms of the judgment, a general judgment of dismissal is without prejudice as to any request for relief in the action.

To me this says that a general judgement of dismissal is dismissed with prejudice unless otherwise stated

Edited by oregonpilot
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I guess I am DUMBER than a 5th grader.

I was so focused on subsection 3 (because it said what I wanted to hear) I now see that subsection 5 cancels out subsection 3 as for as dismissal goes.

I am still hoping I have a good chance of haveing a motion to dismiss with prejudice ruled in my favor. Simply because I have elected arbitration and it is on record with the court that I have. This is the second time they have tried to have this case heard in court , and the second time they are in breach of their own agreement.

The agreement clearly states, “IF EITHER YOU OR WE ELECT ARBITRATION, NEITHER YOU OR WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM.”

One thing I am wondering about, is if I would have a better chance of getting that ruling if I did not add counter claims now. If so could I go back after the ruling and sue for violations.

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Here, the advantage to attaching a counterclaim is that it doesn't cost you any filing fee. You wait until later, and it will. Not sure about your state, the clerk can tell you. I sort of doubt there is a fee for a counterclaim. Did you get a reason for the dismissal? Maybe the court did this and saw the arbitration thing you mentioned.

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In the hearing of the prior case with the prior attorneys. I filed a motion to compel for the above reasons. It was granted with a stay. It did not stated who had to initiate.

At the hearing they tried to argue that I had not filed in any ARB forum. I answered that it was their claim, and that I would have to be a attorney to file a claim against myself on their behalf.

Anyway the reason for dismissal was, that they did not proceed with ARB. I think they gave up.

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