Jump to content

Court date with OC in IL - Need help


RJH
 Share

Recommended Posts

I have a court date coming up very soon. An OC is suing me in Cook County, IL. I've already filed an answer and complaint, but I am unsure of what to do at the hearing.

This was the complaint:

1. The Defendant(s) utilized a charge account and/or line of credit issued by Plaintiff or its assignors whereby Defendant(s) could charge goods and service to their account and/or received cash advances.

2. The Defendant(s) subsequently defaulted by failing to pay for the indebtedness incurred resulting in the balance due Plaintiff of $____.

3. Due demand has been made on Defendant(s) to pay this amount and the Defendant(s) have failed to do so.

Wherefore, Plaintiff prays for judgement against Defendant(s) in the amount of $____ plus court costs.

The complaint had a cover sheet that listed the action as Breach of Contract. There was no contract attached to the complaint as required by IL law. Here was my answer:

ANSWER TO COMPLAINT

1. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in paragraph 1 of the Complaint and denies generally and specifically each and every allegation contained therein.

2. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in paragraph 2 of the Complaint and denies generally and specifically each and every allegation contained therein.

3. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in paragraph 3 of the Complaint and denies generally and specifically each and every allegation contained therein.

AFFIRMATIVE DEFENSES

4. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

5. The Complaint fails to comply with Section 2-606 of the Code of Civil Procedure in that it fails to attach the contract, or, in the alternative, fails to include the affidavit required by that provision of law under certain circumstances (735 ILCS 5/2-606)

6. The failure to comply with Section 2-606 renders the Complaint insufficient as a matter of law.

7. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

My plan so far has been to either have the case dismissed or compel arbitration. I filed a Demand for Arbitration with JAMS and sent a copy to the OC's attorney. Recently, I called JAMS to get a status update on my claim and they said that they have a backlog of cases and haven't been able to get around to mine yet.

Regarding arbitration, I also have a counterclaim which I haven't filed yet. The counterclaim is that the attorney is violating the FDCPA by suing when the contract allows for election of arbitration.

My big problem is that I don't know what to expect or what to say when I appear in court. Should I directly tell the judge that the complaint should be dismissed since it is insufficient, or would that pointless because the judge will give the OC the opportunity to come up with a copy of the contract?

Also, should I also state my counterclaim during the hearing if I don't have time to file an amended answer, and should I directly tell the judge that I will be filing a motion to compel arbitration?

Edited by RJH
Link to comment
Share on other sites

Regarding arbitration, I also have a counterclaim which I haven't filed yet. The counterclaim is that the attorney is violating the FDCPA by suing when the contract allows for election of arbitration.

A counterclaim goes against the plaintiff, not his attorney. Original creditors are exempt from the FDCPA. If you wanted to sue the attorney, you would have to file a separate suit. Then you would have to establish that the majority of his work consists of collections, otherwise he is not subject to the FDCPA either. Finally, If the JAMS claim was filed after the suit was filed against you, the suit can probably progress until they get to your claim.

My big problem is that I don't know what to expect or what to say when I appear in court. Should I directly tell the judge that the complaint should be dismissed since it is insufficient, or would that pointless because the judge will give the OC the opportunity to come up with a copy of the contract?

They will definitely give them time to produce the contract. They won't be able to, because there isn't any. A cardholder agreement isn't a "contract" in the terms the complaint uses. Anybody can go to the internet and print out one of these. In fact, you should do that. What they have to establish is that they sent it to you and that you agreed to the terms. These hearings are usually five minutes, the judge just wants to find out if you admit to the debt or not, and what needs to be done to resolve the case. If you have time, go sit in on a few of these before your date comes up. I posted a LOT of stuff on Citi, I suggest you read it.

Link to comment
Share on other sites

A counterclaim goes against the plaintiff, not his attorney. Original creditors are exempt from the FDCPA. If you wanted to sue the attorney, you would have to file a separate suit. Then you would have to establish that the majority of his work consists of collections, otherwise he is not subject to the FDCPA either.

Thanks for the clarification, legaleagle, I was a bit confused on that point. The attorney is definitely a collection agency (Blitt & Gaines), so my plan is to file a suit for FDCPA violations against them soon.

However, regarding the current case, would it still be possible to argue for dismissal based on the fact that Blitt sued after I sent them a letter electing arbitration? I remember reading something about this possibility once, in a thread on this site or another one, but I haven't been able to find the thread again. I believe that the idea was that the suit was brought improperly, or perhaps constituted a breach of contract because arbitration was elected per the OC's cardmember agreement.

Link to comment
Share on other sites

They have failed to attach a copy of the agreement or terms and conditions. They have not given you any information to go on and you move for a more definite statement. the complaint is too generalized to allow you to adequately plead and therefore should be stricken.

The court would have to say something about it, prep a motion for more definite statement and a motion to strike the complaint have them ready for the hearing. Announce that research on the alleged agreement at the FTC website has shown an arbitration clause with JAMS as arbitrator and because of that you have elected arbitration.

The plaintiffs have not shown any prima facie EVIDENCE of any claim and the complaint is unverified.

That should be quite enough for the hearing

Link to comment
Share on other sites

Seadragon, that sounds like the best way to proceed, but I might not be able to go that route anymore. In the letter I sent to the law firm a few weeks ago notifying them that I was filing a demand for arbitration with JAMS, I wrote:

"I am initiating private binding arbitration through JAMS per the credit card agreement I have with your client."

The law firm didn't respond to the notice, but they probably have it on file. Couldn't they use this to as evidence of admission to a contract with the OC?

Link to comment
Share on other sites

Arbitration cancels any litigation. This all comes down to dates. If you filed ARB substantially before suit was filed and can prove it, you have an FDCPA claim. If not, no claim. The date overlap ususally works in favor of the law firm. Also, they can remove this to federal court. Can you argue a case in front of a federal judge? The standard is much higher. What Seadragon said requires a motion. I agree with him, these generic complaints state no cause of action. How do you know what defense to mount? Problem is, most judges rule against you because they are sick and tired of credit card cases with internet and amnesia defenses. That's just the way it is. You may have to go to appeals court as Seadragon did. That is a tough way to go, you have to have your game together. And a nice suit like he wore.

Link to comment
Share on other sites

I sent a letter electing arbitration about three months before the suit was filed, but I did not file the claim with JAMS until after the suit was filed. My plan right now is to move for a more definite statement or strike the complaint.

Link to comment
Share on other sites

Regarding arbitration, I also have a counterclaim which I haven't filed yet. The counterclaim is that the attorney is violating the FDCPA by suing when the contract allows for election of arbitration.

A counterclaim goes against the plaintiff, not his attorney. Original creditors are exempt from the FDCPA. If you wanted to sue the attorney, you would have to file a separate suit. Then you would have to establish that the majority of his work consists of collections, otherwise he is not subject to the FDCPA either. Finally, If the JAMS claim was filed after the suit was filed against you, the suit can probably progress until they get to your claim.

My big problem is that I don't know what to expect or what to say when I appear in court. Should I directly tell the judge that the complaint should be dismissed since it is insufficient, or would that pointless because the judge will give the OC the opportunity to come up with a copy of the contract?

They will definitely give them time to produce the contract. They won't be able to, because there isn't any. A cardholder agreement isn't a "contract" in the terms the complaint uses. Anybody can go to the internet and print out one of these. In fact, you should do that. What they have to establish is that they sent it to you and that you agreed to the terms. These hearings are usually five minutes, the judge just wants to find out if you admit to the debt or not, and what needs to be done to resolve the case. If you have time, go sit in on a few of these before your date comes up. I posted a LOT of stuff on Citi, I suggest you read it.

You don't have to prove that a majority of his work consists of collections. You just have to prove that he regularly collects debts. An attorney can be considered a debt collector even if only 25% of his business is debt collection. One debt collection case per week is still regularly collecting debts.

Link to comment
Share on other sites

Works for me, thanks for the clarification. Case law I've seen usually mentions that it is a majority. Most of the time it is anyway, as we all know, we see the same names over and over here. I posted some good questions for a Citibank custodian of records who is being flown in. You'll like them. Different thread.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.