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Arguing Unclean Hands Against A Collector, But Not As An Affirmative Defense


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Fresh off the violation I received from an unlicensed agency, and since being made whole (but still an emotional wreck of an egg shell about to crack), a licensed agency this time has now made the very unwise and soon to be costly decision that I am ripe for another violation, and I've been violated, AGAIN.

Now obviously this is going to turn out very badly. However, since the last agency just folded, bent over and grabbed their ankles and said do with us as you please, I've decided to "step my game up" and let's try to send a little clearer message that these violations will not be tolerated. I mean how much dadgum emotional distress is a person supposed to endure.

So, since I will obviously whip the dog out of them and defeat is not even a remote option (if you don't believe me just ask me), it's just a matter of how bad and for how much at this point. :goodluck: I want to maximize the retaliation, do some damage and hopefully goad and/or force them to an actual trial.

The violation?

I had a full C&D against this collection agency. However, the violators of my rights called and left me a voice mail on Saturday. In the message the violator advised me that if I was listening to the message with others present I had three seconds to get to a private area because personal and private information was about to be disclosed by the violator.

Now, of course you calling me illegally and then telling me I have three seconds to "retreat to safety" in my own home is going to go over just wonderfully. I take messages like that extremely well and am very understanding in matters such as this. I simply love a collector telling me I have three seconds to do ANYTHING. ::ImInLove::

So my first cause of action is obviously the violation of the C&D. However, as luck would have it, a friend was in my house and heard this violation and third party disclosure. Now obviously these violators are going to argue they gave me notice and "disclaimed" their violation and the violators are not liable for third party disclosure.

However, my argument is "screw you A Holes (I'll find the legal jargon for that later) you were acting with unclean hands the minute you dialed my number, therefore, anything you did from that point forward you can't disclaim and/or mitigate.

You can't tell me, while you are acting with unclean hands that I must retreat in my own home because in three seconds an illegal violation is coming my way, and now it's my fault if I didn't take cover and mitigate the damages coming from a violator that has penetrated my castle and brought with them their illegal message to poison my message machine and spew their illegality all throughout my castle and home.

In other words you can kiss my rear if you think for one dang second you are going to illegally call me (act with unclean hands) and then boss me around on my own telephone line, and at that, give me only three seconds to "retreat and take cover" before you bombard me with more emotional distress, third party disclosure and humiliation.

Anybody know if the argument I'm going to use against them when they try to claim it is somehow my fault I did not take cover and head their warnings has been used before or any other opinions?

The good news for them is that I'm a reasonable person, very easy to work with on things like this, won't blow this into more than it really is and will look to make a lawsuit a very last resort. I'm a diplomacy first type of person, as opposed to shoot first and ask questions later. Good thing !!

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Maybe they will play nice like last time and decide to negotiate reasonable terms to suit both parties satisfactorily.

Yeah this time there will be some negotiation. Last time the negotiation was confirm your address and we will send you a check, how fast can you have the dismissal papers filed with the court.

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Guest usctrojanalum

You do not have a cause of action for unclean hands. I know a lot of people on this board like to use this doctrine but it is often misunderstood and not interpreted correctly. You definitely have violations without a doubt, but unclean hands is not one of them.

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You do not have a cause of action for unclean hands. I know a lot of people on this board like to use this doctrine but it is often misunderstood and not interpreted correctly. You definitely have violations without a doubt, but unclean hands is not one of them.

Okay, thanks, but I am not using unclean hands as a stand alone cause of action, or how people like do when using it as an affirmative defense.

I just going to argue that any defense they might raise or mitigation they might raise would be cancelled out due to them acting with unclean hands when they left the message.

I'm not arguing the leaving of the message was a violation of the unclean hands doctrine, but a counter reply so to speak when they try to bring up they gave notice the message was getting ready to contain personal, private information.

When you answered, were you basing your reply on me using unclean hands in the way I just described.

Thank you for your reply, I value your opinion as you always seem to give solid information.

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Isn't it true that the Buttsniffer can contact you one last time after your C&D demand ? If this is outside of that, you may need to go to Walmart and get more Ammo for your machine gun.... that big gun is getting plenty of work these days..

nice... !! :D:D:D:D

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‘‘The doctrine of unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue. ’’Bauer v. Waste Management of Connecticut, Inc., 239Conn. 515, 525, 686 A.2d 481 (1996). ‘‘[F]or a complainant to show that he is entitled to the benefit of equity he must establish that he comes into court with clean hands. . . . The clean hands doctrine is applied not for the protection of the parties but for the protection of the court. . . . It is applied . . . for the advancement of right and justice.’’ (Internal quotation marks omitted.) McCarthy v. McCarthy, 55 Conn. App. 326,335,A.2d(1999), cert. denied, 252 Conn. 923,A.2d(2000). ‘‘One who seeks to prove that he is entitled to the benefit of equity must first come before the court with clean hands. . . . The party seeking to invoke the clean hands doctrine to bar equitable relief must show that his opponent engaged in willful misconduct with regard to the matter in litigation. . . . The trial court enjoys broad discretion in determining whether the promotion of public policy and the preservation of the courts’ integrity dictate that the clean hands doctrine be invoked.’’ (Citations omitted; internal quotation marks omitted.) Polverari v. Peatt, 29 Conn.App. 191, 202, 614 A.2d 484, cert. denied, 224 Conn. 913,617 A.2d 166 (1992). (italics added)

As trojan said, this is commonly used as a special defense, not a cause of action. I prefer "Unclean Underwear," which is what we want them to have after they read the complaint you send them. The goal is to cause them to discharge a voluminous quantity of a Dinty Moore stew-like substance into their BVDs when they see what is about to happen to them.

I prefer either intentional or negligent infliction of emotional distress. Negligent is easier, because it doesn't have the same level of proof required. All you have to establish is that they "knew or should have known" that there would be consequences to the action they were about to take. Intentional is a higher standard, you have to prove they did it with malice aforethought.

MAYBE Invasion of privacy:

The category invasion of privacy contains a number of different torts. One is called false light-- it is considered false light when someone publicly gives a false impression of another person which "any reasonable person" would consider grossly offensive. Intrusion is comprised of the elements of intruding into a person's private and/or personal life. Public disclosure of a private fact is, as it sounds-- for someone to disclose highly-personal facts of another person's personal life. This tort differs from defamation, for the element is not whether the information is true or not; it constitutes a civil tort because it violates the person's right to privacy.

While most people are aware that they have the right to be free of bodily harm, damage to property, and countless other such factors, fewer realize that their rights include being protected from such things as undue damage to their reputations and intrusions into their personal lives; and that the justice system is in place to safeguard these rights.

TYPES:

1. False light- This type of tort occurs when news or publicity about an individual publicizes a private fact that is not true. For example if John releases information in the local newspaper to the public that his wife is having an affair with another man he has committed the "false light" tort unless he can prove that it is true.

2. Public disclosure of private facts about a person- This tort occurs when an individual releases a private fact about another individual that a normal and reasonable person would find offensive. For example if John's wife in retaliation publicizes information about his sex life or the fact that he cannot pay off his debts she has just committed the "public disclosure of private facts" tort.

3. Appropriation for commercial gain- This tort occurs when a company or individual uses another person's name, voice, looks, or any other characteristics of a person to sell or market products for financial gain without the consent of that person. This type of tort normally only effects celebrities and athletes when companies take identifying traits of them and use it to sell or market products.

4. Intrusion on an individual's affairs or seclusion- This tort occurs when an individual invades another person's personal affairs and private matters when that individual has the right to expect privacy. Going back to John in the first scenario. If John hears through a mutual friend that his wife's friend Sue is having an affair and he decides to hide outside of her house to see who arrives and leaves from the house he has committed the "intrusion on an individual's affairs or seclusion" tort.

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OOPS just found this:

On December 2, 2010, the Supreme Court of Arkansas held, yet again, that the tort of negligent infliction of emotional distress is not recognized as a cause of action in the state of Arkansas. Although the controversial cause of action is accepted in the majority of jurisdictions, the court decided the facts in Dowty v. Riggs did not warrant a reversal of common law. They did, however, leave the possibility open that facts in a future case could justify the creation of the new tort.

Don't know if this is a cause of action in federal cases tho.

The Invasion of privacy is a 4th amendment thing, usually criminal, but you may be able to make it work.

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OOPS just found this:

On December 2, 2010, the Supreme Court of Arkansas held, yet again, that the tort of negligent infliction of emotional distress is not recognized as a cause of action in the state of Arkansas. Although the controversial cause of action is accepted in the majority of jurisdictions, the court decided the facts in Dowty v. Riggs did not warrant a reversal of common law. They did, however, leave the possibility open that facts in a future case could justify the creation of the new tort.

Don't know if this is a cause of action in federal cases tho.

The Invasion of privacy is a 4th amendment thing, usually criminal, but you may be able to make it work.

IIRC, you don't have to prove malice under the FDCPA.

Colt, I know exactly what you're getting at. I think there is another name for it though. Sort of like a civil version of felony murder.

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