Jump to content

Need help TODAY in MA re Plaintiff's Motion to Dismiss Defendant's Countercla


Recommended Posts

Please help. I have only today to submit anything, or six day's from now. I received a complaint in MA re alleged credit card debt.

I responded within 20 days (but not before JDB/atty sent in Request for Entry for Default Judgement, doh. It was disregarded.) with my Answer/Affirmative Defenses and Counterclaim. A Case Management Hearing is already set for July.

So I was surprised to receive Plaintiff's Motion to Dismiss Defendant's Counterclaim for a variety of reasons, including that the Defendant/Plaint-in-Counterclaim has not alleged a cause of action upon which relief may be granted, no factual basis, and an alleged missing form. And a court hearing at the end of this month.

I was clear in my Answer/Affirmative Defenses and Counterclaim: "Should the case go to trial, the Defendant in Counterclaim would hereby pray for actual damages under the Fair Debt Collection Practices Act, and for the statutory damages as set forth above for each and every violation of the Fair Debt Collection Practices Act proven at the trial of this case, and reasonable attorneys' fees (if applicable) and costs thereunder.

WHEREFORE, Defendant prays this case be dismissed with prejudice along with any further relief the Court deems just and proper. Further the Defendant sayeth not."

Since receiving the complaint I have uncovered that the account is showing up on my credit reports as re-aged (violations). The plaintiff is a JDB assignee of Cap Uno. The atty/debt collector might also own the account (perjury), and I have no idea if this is my debt and how these numbers originated. Again, early on and no proof at all from Plaintiff. And I believe the atty knows there is no evidence.

Given the holidays here I might still be within the 14 days to file an opposition to motion before the court date. A NACA lawyer I spoke with talked about seeing if I could file a Motion to Amend my initial filing/Counterclaim.

But I am not sure that is the right way to go. First, there has been no proof, no contracts, nothing in the court's files but the atty's affidavit and a statement of claims with no cc number and one big dollar amount. We haven't entered discovery yet. I have won against this atty several years ago (without the supposedly necessary claim paper); they are low and I know they have no proof.

Do I:

1. File a sworn affidavit denying the alleged debt/amount of debt? My understanding is that might render the atty's affidavit null and they would need to bring a live witness to court.

2. Put together an Opposition to Motion and file it today? Only doing so if I can determine I am within and not over the time limit.

3. Submit a Motion to Dismiss Plaintiff's Affidavit of Debt (less severe)?

4. Submit Defendant's First Set of interrogatories, Requests for Admissions and Request for Production of Documents (I have it almost complete)?

5. Something I'm missing or more than one of the above? I only found one link to a Motion to Oppose, but if I missed a link, please provide.

6. And is it important to get Discovery rolling so that by the time I go to court, the plaintiff's atty will have less than a couple weeks to return answers?

This plaintiff JDB/JDB atty is trying to technically not answer my Counterclaim by this Motion.

7. If I cannot Motion to Oppose, what can I do? What are my options now and at the hearing?

Thanks for any help in advance.

Herald

Link to comment
Share on other sites

VI. MOTION PRACTICE

A. General. Pursuant to Mass. R. Civ. P. 6 and 78, all motions shall be accompanied by an affidavit of notice setting forth the date and time of hearing on the motion. All motions shall be scheduled by counsel for the moving party on the court's usual civil motion hearing day as published by the court, or on the date the case is scheduled for Case Management Conference or Pretrial Conference, or as otherwise ordered by the court.

B. Agreed Upon Motions. Motions filed by the parties jointly or where the moving party avers that all other parties agree with the outcome sought by the motion may be submitted for a ruling on the papers without the presence of the parties. Such motions shall be accompanied by an express request that the court rule without a hearing. This procedure shall be available only in cases where all parties are represented by counsel.

C. Discovery and summary judgment motions. All discovery motions filed pursuant to Mass. R. Civ. P. 26 or 37 shall include copies of the discovery requests and responses which are the subject of the motion. Motions for summary judgment which rely on any pleading or discovery shall include copies of such pleadings or discovery with the motion. Any discovery or summary judgment motions which do not include such copies may be denied without prejudice.

D. Opposition procedure. In actions where all parties are represented by counsel, motions may be acted upon by the court without a hearing in the following manner.

1. Designation by moving party. A moving party who chooses to use this procedure shall state on the caption of the motion and on the affidavit of notice, “SUBJECT TO OPPOSITION PROCEDURE,” and file and serve such motion at least 14 days before the motion hearing date. If no other party timely files and serves an “OPPOSITION TO MOTION” as described below, the motion will be considered by the court without a hearing or the attendance of any counsel.

2. Opposition by other party. If any other party opposes the motion or otherwise seeks to be heard, such party shall file and serve a document captioned “OPPOSITION TO MOTION” at least five days before the motion hearing date. If any party timely files and serves such an “OPPOSITION TO MOTION,” all counsel shall be required to attend the scheduled hearing, unless in such “OPPOSITION TO MOTION” the party expressly waives the right to such hearing, in which case the motion will be considered by the court without a hearing or the attendance of any counsel.

3. Exempted motions. This opposition procedure shall not apply to the following motions: motions to continue Case Management Conference, Pretrial Conference or trial; ex parte motions; petitions for approval of settlement by a minor; motions seeking sanctions of any kind; motions for preliminary and permanent injunction; motions for a receiver; motions to vacate a default judgment; motions for relief from judgment; motions for a new trial; motions for reconsideration; and any motion ordered by a Judge to be decided after hearing.

4. Notice of decision. When a motion is considered under the opposition procedure, the court shall act upon, and send written notice of such action to all parties, within 14 days after the hearing date.

Link to comment
Share on other sites

1. Who is the named plaintiff in the suit?

LVNV Funding, assignee

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

Capital One

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door)

Mail

7. Was the service legal as required by your state?

I believe so, yes.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None.

9. What state and county do you live in?

MA Middlesex

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

I am not sure this alleged account is mine.

11. What is the SOL on the debt? To find out:

Again, not sure this account is mine.

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Filed Answer Affirmative Defenses and Counterclaim to initial Complaint. Plaintiff filed Motion to Dismiss Defendant's Counterclaim with hearing end of month.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

20 days. Responded in time.

Complaint

1. The Plaintiff, LVNV Funding LLC assignee of Capital One is a duly organized corporation with its usual place of business at

15 South Main Street

Greenville, SC 29601

2. Defendant, ME

residing...

3. The Defendant (s) owe (s) the Plaintiff the sum of $25,000+ for the unpaid balance due for money loaned to the defendant by the plaintiff's assignor on a Credit Card Account.

WHEREFORE, the plaintiff demands judgement against the Defendant (s) in the sum of $25,000+ plus interest thereon from 11/09/11, date of demand and the costs of this action.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Atty affidavit, a statement of damages (no credit card number or information, just a total), a Uniform Counsel Certification for Civil Cases, and a Corporate Disclosure Statement on Possible Judicial Conflict of Interest (Supreme Judicial Court Rule 1:21):

Parent Corporation of Plaintiff: None.

Link to comment
Share on other sites

"Should the case go to trial, the Defendant in Counterclaim would hereby pray for actual damages under the Fair Debt Collection Practices Act, and for the statutory damages as set forth above for each and every violation of the Fair Debt Collection Practices Act proven at the trial of this case, and reasonable attorneys' fees (if applicable) and costs thereunder.

WHEREFORE, Defendant prays this case be dismissed with prejudice along with any further relief the Court deems just and proper. Further the Defendant sayeth not."

This will most likely be thrown out. You have not filed a proper counterclaim if this is all you did. A counterclaim is a separate pleading, it is a cross-complaint against the plaintiff. This does not qualify.

Link to comment
Share on other sites

I included a counterclaim with points based on FDCPA violations. I don't feel comfortable sharing all of them here. I did not attach a Statement of Damages page, which I know is required when creating a complaint, but wasn't sure about a cross-complaint/counterclaim. If the paper is all that is required I can motion to amend.

Also since this will be the first appearance and I have received no validation and proof, I feel like providing an exact dollar damages amount is premature.

Do you have any other guidance, based on my questions for next steps?

If it does get kicked out, and let's assume it does, what do I do next?

Thank you.

Link to comment
Share on other sites

I don't feel comfortable sharing all of them here.

Fair enough, but it's a debt collection message board and you're talking about FDCPA violations. It's what we do and discuss on here.

No need to PM them. They have been argued and gone over in great detail a thousand times on this board.

If you want help and want to know what you should do next, we at least have to know what type of hand your holding. In other words there are a lot of different things you could or might need to do next.

It's hard to help and be specific if all you say is you have FDCPA violations against them. LVNV is one of the worst of the worst, ties Midland for top spot in my book. So FDCPA violations, I would expect their to be many with these clowns.

However, can't help you much if we don't have all the facts.

Link to comment
Share on other sites

I am in a credit card lawsuit now with Midland. The only provided an affidavit with the complaint and no contract or any other information. I filed a sworn denial against their affidavit. I then filed a motion to dismiss pursuant to IL Trial Rule 282 because they did not attach a contract to the complaint. I stated in my Affirmative defenses:

1. Lack of legal standing to file lawsuit, no contract or proof of ownership

2. Barred by Statute of Frauds, no contract.

3. Failure of consideration. No exchange of money or goods between plaintiff and defendant.

4. Lack of privity. No contract, account statements, or proof of valid debt.

Midland's Attorney filed a motion to stricken my Affirmative Defenses from the record because I did not prove any facts to support my conclusion. The said that being that Illinois pleading requirements mandate facts to be plead, my affirmative defenses must be stricken from record. Also that non of my affirmative defenses raise any new affirmative matters giving color to plaintiffs claim. They defend every affirmative defense based on the contract that exists and pursuant to the contract, but I have never received any proof of the contract. They never state in their defenses that they have the contract, they just say basically that because of the contract that exists, and well pleaded facts they provided, they have a legal right to sue. I have also filed a motion for discovery 14 days ago at the same time of the motion to dismiss, asking for proof of contract, proof of ownership and the purchase receipt, etc. They sent me a copy of their motion to stricken affirmative defenses but still did not send me any proof of a contract.

How should I answer their motion to stricken my affirmative defenses from the record? Should I respond by stating they still have not provided any contract that they are basing their conclusions on?

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.