Softwear8 Posted October 27, 2012 Report Share Posted October 27, 2012 Back in July I defeated their MSJ.They said they were going to file a second MSJ.They didn't.At pretrial last week the judge told them their case was ridiculous and ordered them to send me an affidavit of poverty.I received envelope yesterday: no affidavit in it, but letter informing me they are discontinuing case.:'>WO prejudice. I'll be getting legal advice next week to see if I can change that.Just thought I'd share a teeny bit of joy in these hard times.Poor but happy today.If anyone's interested, here is my thread which describes activity up to July:http://www.creditinfocenter.com/forums/there-lawyer-house/315227-help-crap-1-suit-nyc.html Link to comment Share on other sites More sharing options...
helpme Posted October 27, 2012 Report Share Posted October 27, 2012 Link to comment Share on other sites More sharing options...
Beergoggles Posted October 27, 2012 Report Share Posted October 27, 2012 good job! Link to comment Share on other sites More sharing options...
1stStep Posted October 27, 2012 Report Share Posted October 27, 2012 Nice work! Link to comment Share on other sites More sharing options...
antiquedave Posted October 27, 2012 Report Share Posted October 27, 2012 Another one bites the dust!! Link to comment Share on other sites More sharing options...
jpavv Posted October 27, 2012 Report Share Posted October 27, 2012 Link to comment Share on other sites More sharing options...
Coltfan1972 Posted October 27, 2012 Report Share Posted October 27, 2012 Link to comment Share on other sites More sharing options...
rte Posted October 27, 2012 Report Share Posted October 27, 2012 CONGRATS! Link to comment Share on other sites More sharing options...
racecar Posted October 27, 2012 Report Share Posted October 27, 2012 Love to hear about a junk debt buyer beatdown Link to comment Share on other sites More sharing options...
MrSpanky Posted October 27, 2012 Report Share Posted October 27, 2012 Link to comment Share on other sites More sharing options...
MuteDebt Posted October 27, 2012 Report Share Posted October 27, 2012 Congratulations I really hope this is what I will be posting in a few months! Link to comment Share on other sites More sharing options...
Torden Posted October 28, 2012 Report Share Posted October 28, 2012 Go ahead and file your own motion to dismiss WITH prejudice. State that CapOne had not prepared a genuine case and clearly had no intentions to do so. If the judge never receives such a motion, then his hands would be tied and his only option is to dismiss W/O prejudice. But a judge that sees their case as being "ridiculous" might well agree enough to accept YOUR motion instead of theirs. Link to comment Share on other sites More sharing options...
Softwear8 Posted October 28, 2012 Author Report Share Posted October 28, 2012 Love to hear about a junk debt buyer beatdownSo do I, but this was an original creditor beatdown. Link to comment Share on other sites More sharing options...
FondaisFrustrated Posted October 28, 2012 Report Share Posted October 28, 2012 That's great! I hope within the next few weeks I'm able to share similar news Link to comment Share on other sites More sharing options...
alioop4282 Posted October 28, 2012 Report Share Posted October 28, 2012 Just read this and am SOOOOO happy for you!! YAY!! Awesome work. Link to comment Share on other sites More sharing options...
alexander323bc Posted October 30, 2012 Report Share Posted October 30, 2012 Awesome Man. Glad you come out on top gives me hope that my ridiculous JDB will go away and never comeback. Link to comment Share on other sites More sharing options...
Softwear8 Posted November 6, 2012 Author Report Share Posted November 6, 2012 WHAT THE ...??!!These guys must be on drugs or something, because I just received a collection letter on this same account. But it's not from the lawyers...this time it's directly from Crap 1, on Crap 1 stationery. Is this normal procedure after they've discontinued a legal case?????? Truthfully, I don't really care, I just think it's weird. Link to comment Share on other sites More sharing options...
BrunoTheJDBkiller Posted November 6, 2012 Report Share Posted November 6, 2012 (edited) Since they dismissed voluntarily, they can continue collection and can re-file the case and sue you again, for what it's worth. That doesn't mean their case will be any better than it was the first time. They probably won't sue again, but it is perfectly legal to ask you to pay. Probably just a formality. Keep the letters. Edited November 16, 2012 by BrunoTheJDBkiller Link to comment Share on other sites More sharing options...
Softwear8 Posted November 16, 2012 Author Report Share Posted November 16, 2012 Since they dismissed voluntarily, they can continue collection and can re-file the case and sue you agaian, for what it's worth. That doesn't mean their case will be any better than it was the first time. They probably won't sue again, but it is perfectly legal to ask you to pay. Probably just a formality. Kepp the letters.Here's the thing -- since I have yet to sign and return to them the stipulation of discontinuance, for all intents and purposes the case is still in litigation. So doesn't their sending me a collection letter constitute a foul of some sort?ALSO >>> At our last court meeting in October the judge told them to send me an affidavit which I was supposed to then bring to our next court date in December, but they didn't. Instead, they sent me the stipulation of discontinuance form. Could their volunteering dismissal without prejudice in this way be some kind of end run on their part to not only avoid any more legal fees but to also avoid having the judge dismiss this case, (which I'm assuming is why she ordered they send me the affidavit in the first place)? I would like to get this dismissed with prejudice if possible, which as I understand it is usually out of the question unless the case is dismissed on the merits (as opposed to being voluntarily dismissed by the plaintiff). Anyone's take on this would be appreciated. Link to comment Share on other sites More sharing options...
BrunoTheJDBkiller Posted November 16, 2012 Report Share Posted November 16, 2012 It's only with prejudice if it is a second dismissal. Are you sure you have to sign this? The statute makes no mention of this. New York Civil Practice Law & Rules - Article 32 - § R3217 Voluntary Discontinuance - New York Attorney Resources - New York Laws Link to comment Share on other sites More sharing options...
Softwear8 Posted November 16, 2012 Author Report Share Posted November 16, 2012 It's only with prejudice if it is a second dismissal. Are you sure you have to sign this? The statute makes no mention of this. New York Civil Practice Law & Rules - Article 32 - § R3217 Voluntary Discontinuance - New York Attorney Resources - New York LawsThanks, Bruno. Yes, this is why I haven't signed it yet, and also this is why I'm asking if this could be an attempt on their part to avoid dismissal by the judge. And along those lines, aren't they violating the judge's order by not sending me the affidavit she requested they send me? Link to comment Share on other sites More sharing options...
KentWA Posted November 16, 2012 Report Share Posted November 16, 2012 I seem to remember that I have read some cases where there was a stipulation to discontinue did not count against them for the 2 strikes and you are out. This may be why they are looking to have you stipulate to discontinuance. They may have also put some language in there that would prevent you from going after them for FDCPA for filing a bad suit. I would not sign it if plaintiff has the ability to dismiss on their own. Link to comment Share on other sites More sharing options...
Softwear8 Posted November 16, 2012 Author Report Share Posted November 16, 2012 "I seem to remember that I have read some cases where there was a stipulation to discontinue did not count against them for the 2 strikes and you are out. This may be why they are looking to have you stipulate to discontinuance. They may have also put some language in there that would prevent you from going after them for FDCPA for filing a bad suit. I would not sign it if plaintiff has the ability to dismiss on their own."I'm not really understanding what this means. Did not count against whom? Ok, let's put the stipulation for discontinuance aside for a moment. The judge told them to send me an affidavit. They did not send me one. Isn't that a violation of some kind? I'm not looking to go after them. They didn't file a "bad suit". I'm just wondering what would happen if I were to show up in court without the affidavit the judge requested and then when asked, explain to the judge that they sent me a stip for discontinuance w/o prejudice instead, and also that I'd received a collection letter from Cap 1. Link to comment Share on other sites More sharing options...
lheart Posted November 16, 2012 Report Share Posted November 16, 2012 You have received the best advice already: File your own motion to dismiss with prejudice. Use the argument that they have not followed the courts instructions at this point. Do not sign the stipulated dismissal, you have no need to. If they decide to dismiss without prejudice, they do not need your approval. Link to comment Share on other sites More sharing options...
Softwear8 Posted November 17, 2012 Author Report Share Posted November 17, 2012 Interesting...Thank you, iheart. And thanks to everybody for your input. I really appreciate it! Link to comment Share on other sites More sharing options...
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