SOL Counter Suit in Federal Court?

[Deagle001]

Hello all, Got a summons. I spoke to a lawyer to defend me.

New to the form and was just wondering if I should have a lawyer I may be retaining on contingency to counter sue a CA and their lawyer who is suing me 5 months beyond the SOL in federal court. My potential lawyer said I had a case because my credit report indicates a date of last payment and account closure is beyond the SOL and the CA suing me violated federal law. The debt is not even mine as I never had an account with the OC.

The lawyer is willing to take my case on contingency and represent me from a lawsuit filed against me by the CA and they will counter sue them back with possibly a class action. It looks like I have a good defense that winnable and the summons only has a unsigned credit card agreement from the OC and just a affidavit from the president of the CA stating that he bought the debt and knows information about the debt.

Should I hire the lawyer on contingency and sit back and let him do his thing?

Edited February 11, 2012 by Deagle001

[Coltfan1972]

Nobody can answer that question for you. The attorney would have to pay me just to let him take a case like this. Get sued on a debt past the statue of limitations is great. I had it happen to me. Nothing better knowing the worst you're walking out of court with is a collecting nothing and paying nothing. Personally, I'm jealous as I'm sure a few others are also.

On the flip side, there are those that could care less about doing it themselves (not a dang thing wrong with that). They would rather sit back, probably pocket a grand and not have to basically do anything. In other words, let the atty run up a few grand in legal fees, while getting you your statutory 1k (up to 1K).

So it's 100% personal preference. Do you know about this stuff? If not, want to learn. You have a good test case if the debt is truly outside the statute of limitations. Ask ten people and five will tell you handle it yourself and have a blast doing it and five will tell you to let somebody else do the work and just cash your check in a few months.

Personally, I find it to be huge adrenaline rush going to court and fighting pro-se. I found every possible reason to get in court, asking for oral arguments for every issue under the sun. The night before I was like a kid on Christmas Eve this is so excited they can't fall asleep.

Others dread it, have anxiety attacks thinking about going to court or would rather be playing golf or spending time with the kids, rather than arguing hearsay and statute of limitations against a junk debt buyer attorney.

If you have to pay nothing up front to an atty to defend you on a debt collection case, you can pretty much book it 100% you are going to win the case and win your counterclaim.

I used to work insurance claims. People that got an attorney when our insured rear ended them did not get the attorney to establish liability, but help with getting a larger check for damages. This is what your case sounds like to me, just basically going to haggle over how much the other side is going to be paying.

[Coltfan1972]

It looks like I have a good defense that winnable and the summons only has a unsigned credit card agreement from the OC and just a affidavit from the president of the CA stating that he bought the debt and knows information about the debt.

If it's past the statute of limitations it does not matter if they have you on video signing the credit card agreement, using the card and they fly in every employee from the original creditor to 100% confirm they bought your account.

[Deagle001]

I think I'm just going to let the lawyer handle it. I really just want this to go away and I can't afford to take many days off of work handling this myself even though it looks like this might be fun. The lawyer said the most I would have to do is show up to a deposition or testify in court in a few months to a year from now. I really hope he takes this CA and their attorney for a ton of money. You would think these people we're smart enough to know the SOL before they sue someone.

Edited February 11, 2012 by Deagle001

[legaleagle]

Just for laughs, who is the OC and what is the date they are alleging as default? Be advised, some lawyers don't exactly have a good track record with credit card cases. Most of them won't even take one. Class action suits raise a red flag. Where is this lawyer going to find a bunch of people who got sued by this creditor past the SOL? It does happen, but not as often as people think. Mostly the argument arises over choice of law and whose SOL applies, not an outright violation.

[Deagle001]

Just for laughs, who is the OC and what is the date they are alleging as default? Be advised, some lawyers don't exactly have a good track record with credit card cases. Most of them won't even take one. Class action suits raise a red flag. Where is this lawyer going to find a bunch of people who got sued by this creditor past the SOL? It does happen, but not as often as people think. Mostly the argument arises over choice of law and whose SOL applies, not an outright violation.

It was Capitol One and the info in the summons did not have a default date. Only my credit report indicates when the last payment and date of account closure. Both are past the SOL from the date they filed suit.

I also notice on the unsigned CC agreement, the Bank was based in Nevada and the Nevada SOL is 4 years. The unsigned CC agreement also says all laws in Nevada govern. Should I mention this to my attorney or would IL law govern with its 5 years SOL. I am being sued in IL. Regardless of governing state, its still out of SOL but using Nevada law would give me a year and 5 months SOL instead of just 5 months.

All this trouble for a debt that's not even mine.

Edited February 12, 2012 by Deagle001

[BV80]

Here's some Illinois case law for you. Herkert v. MRC Receivables Corp., 655 F. Supp. 2d 870 - Dist. Court, ND Illinois 2009

"Numerous courts, both inside and outside this District, have held that filing or threatening to file suit to collect a time-barred debt violates the FDCPA."

"As our esteemed colleague Judge Suzanne B. Conlon reasoned, bringing or threatening to bring a lawsuit 'which the debt collector knows or should know is unavailable or unwinnable by reason of a legal bar such as the statute of limitations is the kind of abusive practice the FDCPA was intended to eliminate.'"(citing Ramirez v. Palisades Collection LLC, No. 07-3840, 2008 WL 2512679 (N.D.Ill. Jun. 23, 2008))

[Deagle001]

Here's some Illinois case law for you. Herkert v. MRC Receivables Corp., 655 F. Supp. 2d 870 - Dist. Court, ND Illinois 2009

"Numerous courts, both inside and outside this District, have held that filing or threatening to file suit to collect a time-barred debt violates the FDCPA."

"As our esteemed colleague Judge Suzanne B. Conlon reasoned, bringing or threatening to bring a lawsuit 'which the debt collector knows or should know is unavailable or unwinnable by reason of a legal bar such as the statute of limitations is the kind of abusive practice the FDCPA was intended to eliminate.'"(citing Ramirez v. Palisades Collection LLC, No. 07-3840, 2008 WL 2512679 (N.D.Ill. Jun. 23, 2008))

This makes me feel better. I lost a nights sleep when I got served, now I sleep better at night knowing I have a winning defense. I wish I could see the look on the plaintiffs and his lawyers face when their hit with a counter-suit in federal court.

[Coltfan1972]

You would think these people we're smart enough to know the SOL before they sue someone.

They are, it's just a cost of doing business when they run into somebody that knows their rights and will assert those rights.

I worked insurance claims for years. I paid off bogus and fraudulent claims all the time. Was I smart enough to know it was a scam or the person was faking their injury? Sure I did, it was just a cost of doing business.

My goal was to keep those type of claims under 25% of the settled claims. If I did that we made tons of money and a fat bonus. We just raised the rates on everybody else and depended on all the honest people to offset the 25% by not inflating their claims.

Of those 25% I paid, we could have probably won close to 90% of them if we would have fought hard and forced a trial. However, we were not going to spend 20K and a year in litigation with a 25K reserve set aside drawing no interest, to get out of paying a $3000.00 claim.

Same thing here. Just cut you a check for 1K and the atty one for 3K and get back to screwing over the 99% that don't even know what a statute of limitations is. They are not going to give up collecting or at least having judgements on the 99 that won't fight, just to do the right thing for the 1% that will fight.

Your claim is a nuisance claim and will be met with a very quick nuisance offer. I did it all the time. I'd write $200.00 checks to people that were not even in the car during an accident but presented claims as guest passengers once they found out insurance was involved.

Punitive damages is the way you put a stop to this, but punitive damages are hard to be awarded and even harder to stand up on appeal. Again, the other side knows that also.

[legaleagle]

Cap 1 is in Virginia, they specify a 3 year SOL or yours, whichever is longer. Not sure when they started that. What bank is this in Nevada that you mentioned?

[Deagle001]

Cap 1 is in Virginia, they specify a 3 year SOL or yours, whichever is longer. Not sure when they started that. What bank is this in Nevada that you mentioned?

Oh my mistake. Thought it was in Nevada.

[antiquedave]

The vast majority of these FDCPA suits get settled before ever getting into court very far at all, as far as class action goes finding the other injured parties is what discovery is all about and your collector is not going to want to even get into that at all

Can you imagine getting a list of every suit for the last year and finding everyone that was sued and did not respond? about 95% of them, no way do they want to deal with that, I'd let the attorney file the class action, sit back have a beer and enjoy the show, plus on a class action settlement if your attorney is fair you should reap more than the

1K............

[Deagle001]

The vast majority of these FDCPA suits get settled before ever getting into court very far at all, as far as class action goes finding the other injured parties is what discovery is all about and your collector is not going to want to even get into that at all

Can you imagine getting a list of every suit for the last year and finding everyone that was sued and did not respond? about 95% of them, no way do they want to deal with that, I'd let the attorney file the class action, sit back have a beer and enjoy the show, plus on a class action settlement if your attorney is fair you should reap more than the

1K............

I think my lawyer seems like a shark and may just ask for that list during discovery. Don't know if the CA will comply but this may just be entertaining at least. Even if I get nothing out of it monetarily, I'll just be happy to make their suit against me go away since my credit is improving and I don't want anything to mess it up again. But I do get some enjoyment the CA may squirm when my lawyer hits them with a counter suit. LOL

[antiquedave]

I think my lawyer seems like a shark and may just ask for that list during discovery. Don't know if the CA will comply but this may just be entertaining at least. Even if I get nothing out of it monetarily, I'll just be happy to make their suit against me go away since my credit is improving and I don't want anything to mess it up again. But I do get some enjoyment the CA may squirm when my lawyer hits them with a counter suit. LOL

My last Class Action netted me a 2K check, we didn't get through the certification, like I said most of these get settled before trial and most class actions filed get settled before certification. Once certified you're in for the long haul, maybe 2 years.

If a class action plays out the whole process and you win class representatives will get between 2,000 and 6,000 the class gets about 10.00 each times maybe 5 or 10,000 people and the lawyer? well probably tens of thousands. Often the class rep gets the underlying debt extinguished.

So you can see the collectors best option is to do what they can to keep this from going too far into the process.

[Deagle001]

Well, answer submitted and a counterclaim as well. My attorney is going after them for big bucks for not only violating federal consumer laws but the state of IL has one as well and he getting them for that one too.

I wonder how fast it will take them to want to settle.

[legaleagle]

Can you imagine getting a list of every suit for the last year and finding everyone that was sued and did not respond?

You can imagine it, but you'll never get them to produce it. If I was the JDB lawyer that got this, I would object.

The request is completely irrelevant to the instant action and / or the underlying matter, the purpose of which is to establish whether or not the defendant is liable for a credit card debt. The information sought is a matter of public record and is equally available to the defendant. Additionally, the information is a fishing expedition designed to produce a list of potential "victims." Certainly the defendant and his counsel can do their own research.

[Deagle001]

Can you imagine getting a list of every suit for the last year and finding everyone that was sued and did not respond?

You can imagine it, but you'll never get them to produce it. If I was the JDB lawyer that got this, I would object.

The request is completely irrelevant to the instant action and / or the underlying matter, the purpose of which is to establish whether or not the defendant is liable for a credit card debt. The information sought is a matter of public record and is equally available to the defendant. Additionally, the information is a fishing expedition designed to produce a list of potential "victims." Certainly the defendant and his counsel can do their own research.

Yep my attorney did a search of the court records of lawsuit by the CA and his lawyer for 2011. They have found thousands of suit by the same group so I am sure my attorney may be contacting each defendant of those suits as well. My attorney is going for blood.

Edited February 17, 2012 by Deagle001