Motion to dismiss counterclaim

[teresminor]

Hi,

State: NY

An OC lawyer sent a Motion to Dismiss my Counterclaims. Their argument was that based on CPLR 3013 that my counterclaim of “State and Federal" violations was too vague.

Now, the answer form they give you in the courthouse to answer a summons is a template and I checked off the defenses, one of which was state and federal violations.

And below a separate area for counterclaims where I just wrote in state and federal violations.

Now, There was no room to list all of them and the judge can say--So why didn't you ask for some paper and write them?

OK, but I had intended to argue the violations at the court hearing after All discovery was done.

So, a couple of questions:

The judge said I must send in my motion of opposition stating why they should not be able to dismiss my counterclaims but I am not sure what to say as we never even got to the point of discussing discovery rules etc. I am planning to say I was going to address each claim at court and after discovery was completed. My thinkin was to use what I have and the answers I get from discovery to argue my case.

The items checked as defenses ARE State and Federal violations and was going to cite what each defense and counterclaim was at trial.

Also, since no discussion, when the trial date was set, was made as to the limits of discovery (no mention of discovery came up) was made by the judge, should I MTC discovery?

Or did I just do myself self in by not listing each counterclaim at the time of answering the summons and that is that??

Thanks as always,

Teres

[Coltfan1972]

Violation of state and federal law? Yeah, that is just a tad too vague. Try to at least narrow it down to about 10,000 possible violations or less.

How are their violations of state and federal laws, defenses to their claim against you? Are you arguing an affirmative defense(s)?

When you file a counterclaim, you file basically a new lawsuit against them. You just get to do it all at once.

Court is not like a blind date where you just show up and hope for the best, but concede you have no idea what to expect. You've got to at least tell them what they did. You can't expect them to show up ready to argue against ever state and federal law on the books.

Look at it this way. You get pulled over by a state trooper. He walks to your window, hands you a ticket and says, I got you for numerous moving violations, here is your court date, see you there. Then you try to find out what you did, and the trooper says, you just be ready for court, I'll let you know then.

See if you can amend your counterclaim. Generally speaking, it's not a problem to amend or "cure" defects.

Edited March 21, 2012 by Coltfan1972

[teresminor]

Hello Coltfan,

Yes, I know. A major blunder. It’s just when you are answering the summons one doesn‘t, or I didn’t, think to have typed up list of counterclaims.

So, my dilemma is answering their motion with a reasonable argument, but I like the idea of amending the counterclaims.

I am not sure if I should quickly motion to amend the claims or answer their attempt to dismiss the counterclaims first.

And when I do argue to not have my counterclaims dismissed I have no idea if the judge will be compassionate, so to speak, over my ignorance that I thought I could be more specific once all the evidence is in.

As far as their violations, they contacted me after DV, called on cell. Not many, but it is a low amount, just over $1200, enough maybe to offset what is due.

They were careful.

Also, we never went through or discussed discovery. I thought the judges sets up those rules prior to the court date, so don’t know about that.

Thanks,

Teres

[Coltfan1972]

You need to read the rules of procedure. Generally speaking, you don't have to get leave to amend your complaint. If you go with what you got right now, honestly, you stand no chance. The judge on their best day will order you to amend within a time period or be dismissed.

Keep in mind their violations against you are not a defense, but like you stated basically you can offset their award. For that low of an amount if you can get a good sounding counterclaim, they will probably go away.

Assuming you can amend-

Spell out exactly what they did, note the statute, and then tell the court how much you want. You have to state a claim.

In other words, I'm a citizen of this state, this court has jurisdiction, they are a debt collector, they sent me a letter, I responded with DV, they did not DV, they continued collection and called my cell phone, this call violated my rights under the FDCPA XXXXX, I demand 1K from them.

Again generally speaking, you just start discovery, you don't have to wait on the court to lay out an order for that, the rules will tell you about discovery. You should just be able to start firing off discovery, but get that counterclaim fixed before you do any of that.

Send me a PM with your email and I'll email you an example as an attachment.