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Can My Counterclaim Backfire and Cost Me $$$ ?

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:mrgreen:

(ColtFan -- if you are out there, I was told you might have 2 cents to add to this, if you wouldn't mind?)

And to the Forum as well:

In a counterclaim I would like to bind the OC to the CA's conduct and misdeeds :evil: (Vic. Liab.). [i should add -- the CA has had some serious chutzpah; and when I've called CA out on some things in court, the judge has ruled in my favor..... so my complaints have merit, and this concept of binding isn't imaginary... just maybe New Territory for this forum?]

With your blessing xangelx , rather than focus on whether it is/not possible to bind, in this thread what I really wanted to explore is --- how could a pursuit like this affect me or my case -- both in court or in arb?

In choosing whether to go this OC-binding route, what is best-case-scenario if I win? (Court and/or arb) :IThankYou:

-Awarded Damages (Actual, punitive or statutory)?

-Case dismissed in my favor? (with/out prejudice)?

In choosing whether to go this route, what is worst-case-scenario if I lose? xshotx

Overruled?

Claim Stricken?

Claim Dismissed?

Declared frivolous?

Anger the Judge/Neutral?

...........................OR WOR$E?.............. :shock:

Your turn now:

Questions? Comments? Complaints? :?::!::idea:

(All are welcome: But be nice --- we are all Comrades here) :)++

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The binding thing (joining) is not new territory. It's discussed a lot and it's not something that is done, not all that often, but done.

Worse case, you lose unless it's deemed frivolous and then if that is the case you could be hit with their fees for defending your counterclaim. Per the rules and any court order or rule, do you still have time to join another party to the current suit via a counterclaim?

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:mrgreen:

(ColtFan -- if you are out there, I was told you might have 2 cents to add to this, if you wouldn't mind?)

And to the Forum as well:

In a counterclaim I would like to bind the OC to the CA's conduct and misdeeds :evil: (Vic. Liab.). [i should add -- the CA has had some serious chutzpah; and when I've called CA out on some things in court, the judge has ruled in my favor..... so my complaints have merit, and this concept of binding isn't imaginary... just maybe New Territory for this forum?]

With your blessing xangelx , rather than focus on whether it is/not possible to bind, in this thread what I really wanted to explore is --- how could a pursuit like this affect me or my case -- both in court or in arb?

In choosing whether to go this OC-binding route, what is best-case-scenario if I win? (Court and/or arb) :IThankYou:

-Awarded Damages (Actual, punitive or statutory)?

-Case dismissed in my favor? (with/out prejudice)?

In choosing whether to go this route, what is worst-case-scenario if I lose? xshotx

Overruled?

Claim Stricken?

Claim Dismissed?

Declared frivolous?

Anger the Judge/Neutral?

...........................OR WOR$E?.............. :shock:

Your turn now:

Questions? Comments? Complaints? :?::!::idea:

(All are welcome: But be nice --- we are all Comrades here) :)++

I wpuld have to say it is a bad Idea because:

1. The OC lawyers are better and more expensive than the JDB attorneys so the JDB will piggyback their work.

2. An self represented litigant has enough problems against 1 attorney and you want more?

3. Vicarious liabilty will be demuurred very quickly as they sold the account "as-is" and therefore are not responsible.

4. you have this backwards as the JDB's are guilty of taking a different position than the OC had ie "sold without warranty as to accuracy or collectability" vs. "fully authenticated by our employee".

5. You would do better with a violation of FDCPA or anything else.

Just sayin' draw more troops into battle is not smart unless you have lots of ammo.

Try estoppel for them claiming rights they do not have. and for misrepresenting the character or nature of an alleged debt(the amount). also any other violations before the trial.

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I wpuld have to say it is a bad Idea because:

1. The OC lawyers are better and more expensive than the JDB attorneys so the JDB will piggyback their work.

2. An self represented litigant has enough problems against 1 attorney and you want more?

3. Vicarious liabilty will be demuurred very quickly as they sold the account "as-is" and therefore are not responsible.

4. you have this backwards as the JDB's are guilty of taking a different position than the OC had ie "sold without warranty as to accuracy or collectability" vs. "fully authenticated by our employee".

5. You would do better with a violation of FDCPA or anything else.

Just sayin' draw more troops into battle is not smart unless you have lots of ammo.

Try estoppel for them claiming rights they do not have. and for misrepresenting the character or nature of an alleged debt(the amount). also any other violations before the trial.

Wait a sec, OP never stated that the CA was a JDB. The CA could be a law office/collection agency working for the OC.

That being said, the don't bite off more than you can chew idea is something worth considering, and it is something that only the OP can determine. OCs do hire better attorneys when defending themselves than when trying to get default judgments against alleged debtors. Despite this, if you are able to kick their asses, those better attorneys may not take you seriously until you actually start kicking their asses. And yes, collection attorney's will piggyback the better attorney's work. However, that better attorney may not be nearly as familiar with the FDCPA, so if you have state claims against the CA and OC that also share the same set of operative facts as FDCPA claims against the CA, you may have a real advantage there.

Assuming the CA is a law firm representing the OC, and assuming that you have some state claims for which the OC would be vicariously liable, here's how it would work in my state:

I would file counterclaims against the OC. These would most likely be permissible, not compulsory counter claims. Since the operative facts of my counterclaims would involve acts taken by the OC's agents, I would file third party claims against them. After all, it would waste less of the court's time to lump them both in together rather than having counterclaims in one case, and a totally different case based on the same set of operative facts.

Of course, that is all knowing what I know now. It would all be with my initial answer to their complaint. Whether or not you can pull something similar now depends on your state's rules.

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You have to consider also the litigation priviledge and how the attorneys can fall on their sword to protect the client.

The tough part for you will be getting the authentication and foundation of evidence to prove the Vicarious liability correct.

They can group a bunch of stuff under attorney/client priviledge and that they can basically explain away why they did that.

I think that if your are going to hang your whole counter claim on it it will fail. OC banks are not covered under the FDCPA even vicariously so. the court are prevented from allowing an attorneys bad actions prejudicing their client and may recieve sanctions from the court(usually a small amount).

Better for you to use the unclean hands defense.

The litigation priviledge protects a lot of conduct, better you shut them the H E double hockey sticks up with something they would really hate like ESI discovery and some admissions they wouldn't like such as:

Admit that your electronic records have been breached by unathorized persons.

Admit that employess responsible for data entry have made errors on account data.

Admit that Employees of plaintiffs or agents of plaintiff have accessed account data outside of authorized access procedures.

Admit that data integration errors have changed account data between different accounts(Common relational database problem)

That kinda stuff. If you want to make some money off of them then hit em where it hurts(public confidence in banks) as for collection practices you will need some good evidence for that. I have noticed that the courts demand even more stringent evidence from pro pers.

As in all things these are my thoughts on the matter but I urge you to check your righteous indignation at the door, you are in a battle and there is no time outs. You have to know the courts see attorneys do this to each other all the time and that is part of litigation. You want to win this not get even for the conduct during the battle.

Think Bugs Bunny in this it is better to better to drop an anvil than step on a rake. Try some funny things like bringing up senate hearings and stuff.

also for the people who just lurk the board it is better to sign up and log on so we can all benifit from discussions like this.

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Wait a sec, OP never stated that the CA was a JDB. The CA could be a law office/collection agency working for the OC.

That being said, the don't bite off more than you can chew idea is something worth considering, and it is something that only the OP can determine. OCs do hire better attorneys when defending themselves than when trying to get default judgments against alleged debtors. Despite this, if you are able to kick their asses, those better attorneys may not take you seriously until you actually start kicking their asses. And yes, collection attorney's will piggyback the better attorney's work. However, that better attorney may not be nearly as familiar with the FDCPA, so if you have state claims against the CA and OC that also share the same set of operative facts as FDCPA claims against the CA, you may have a real advantage there.

Assuming the CA is a law firm representing the OC, and assuming that you have some state claims for which the OC would be vicariously liable, here's how it would work in my state:

I would file counterclaims against the OC. These would most likely be permissible, not compulsory counter claims. Since the operative facts of my counterclaims would involve acts taken by the OC's agents, I would file third party claims against them. After all, it would waste less of the court's time to lump them both in together rather than having counterclaims in one case, and a totally different case based on the same set of operative facts.

Of course, that is all knowing what I know now. It would all be with my initial answer to their complaint. Whether or not you can pull something similar now depends on your state's rules.

First off, I want to thank ALL of you for chiming in. ;)

This is an [OC+CA] situation. No JDB's in this action.

I am reluctant to give away too many details --- this CA has a track record of being a well-known slime ball.... and this CA has officially taken me on as Priority.... probably a result of some veritable a$$-kicking. (I would expect this CA to be checking online for me.)

So, if I am to understand things correctly (?), as long as I have some reasonable and applicable case law(s) attached to a permissive counterclaim, it would not be considered "frivolous" -- and not punishable by awarding the OC+CA,.... but could be Decided-Against and thrown out......

......correct? :idea:

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Sorry Seadragon-

I was drafting my reply before I saw your post.... I will read yours now.

And for the record I am all for F'ing their day up, it is just trying to splash some on the OC is going to be tough. Best to make them look bad in front of their bosses when they have to explain evidence exclusion and loss of the case due to their cowboy mentality.

There is a reason the tortoise and the hare is a very good parable.

Best to beat their arrogance with a pro per beat down then submit an article to the paper about the beatdown. You would splash stuff all over the OC the CA and maybe a little on the court also.

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better you shut them the H E double hockey sticks up with something they would really hate like ESI discovery and some admissions they wouldn't like such as:

Admit that your electronic records have been breached by unathorized persons.

Admit that employess responsible for data entry have made errors on account data.

Admit that Employees of plaintiffs or agents of plaintiff have accessed account data outside of authorized access procedures.

Admit that data integration errors have changed account data between different accounts(Common relational database problem)

That kinda stuff. If you want to make some money off of them then hit em where it hurts(public confidence in banks) as for collection practices you will need some good evidence for that. I have noticed that the courts demand even more stringent evidence from pro pers.

Thanks for this:!:

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Arbitration with jams might be better for you.If your not rich plaintiff will pay or pay you back or advance you the money or you may get a fee waiver.In arbitration you want to claim everything you can think of,To run the hours up, this can get very expensive for the plaintiff.

You plead your case they plead theirs,make it so expensive that they settle with you.I think you stand a better chance behind arbitration.Thats my 2 cents but i never heard of coltfan1972 so track down Linda7 and run this top secret plan by her.Also check your cardmember agreement to see if you have arbitration.

http://www.creditinfocenter.com/forums/arbitration/314030-strategy-steps-arbitration.html

JAMS Arbitration, Mediation, and ADR Services

Can My Counterclaim Backfire and Cost Me $$$ ? YES

Edited by racecar

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Kent is from your state, he'll know a decent amount about your state's laws. Once you have some state laws that can be applied to the OC, you'll need some case law from your state regarding agency law.

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