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RobertS

Need help getting JDB suit changed to dismissed "WITH prejudice"

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Thanks to the advice on this board! You guys rock!!

 

We were served in June. We wrote a well-worded Response for Disclosure to the JBD (Pride Acquisitions LLC, using the law-firm Rausch, Sturm, Israel, etc in Texas).

 

Well, the JDB just filed a Plaintiff’s Notice of Nonsuit on their $60K Credit Card claim against us -- we got it in the mail just four days before trial! I called the Court Clerk immediately and they confirmed the case is off next week’s docket, and will officially be dismissed as soon as the judge signs the Plaintiff’s Notice of Nonsuit. Woo-hoo!!
 

 

The JDB is asking the judge to dismiss the suit WITHOUT prejudice.


How can we get the judge to dismiss the suit WITH prejudice (or whatever legal term applies) so we can get this $60K claim to completely go away ... so we can eventually get it off our credit report?

 

Thanks!

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Tough one. Depends on WHY the plaintiff dismissed. That's a lot of money for a "it's not worth my time" dismissal. Where does it stand in regard to the SOL?

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Tough one. Depends on WHY the plaintiff dismissed. That's a lot of money for a "it's not worth my time" dismissal. Where does it stand in regard to the SOL?

 

The current statute of limitations is 3 years, 3 months. In Texas, the SOL is 4 years.

 

My answers to them were somewhat standard, for example: "DENIED: Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's query and must respectfully DENY Plaintiff's allegations. Defendant holds the Plaintiff to provide the strictest proof thereof."

 

However, after researching the JDB, I replied in my general response that the Plaintiff "does not have a surety bond registered with the Texas Secretary of State as required by Texas Finance Code Section 392.101." For those who don't know, Texas Finance Code § 392.101 "prohibits a third-party debt collector or credit bureau from engaging in debt collection in Texas unless that third-party debt collector or credit bureau has obtained a surety bond and filed a copy of the bond with the Office of the Secretary of State." The Plaintiff does not have a registered surety bond.

Not sure if that did it, but I was told by a debt lawsuit attorney that they've used that defense before. But the Plaintiff does not specify the reason they asked for the suit to be dismissed in their Notice of Non-suit -- only citing caselaw that they have a right to have the suit dismissed.

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That sounds like the reason to me. That was a nice catch on your part. I'm not familiar with that one as I'm not from Texas. I would request dismissal with prejudice from them. Now that they know you are aware of their violation they'll probably be very accommodating. 

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You could sue them; attempting to collect a debt when you have no legal basis to do so is an FDCPA violation. You could also report them to the Secy of State and the AG. Bet all that would change their mind. They may be playing games, maybe they'll go get a surety bond and refile the case. I wouldn't give them the chance. Ever hear of Jerry Jarzombek? Great consumer attorney in TX, he loves to cream people like this. Give him a call.

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That sounds like the reason to me. That was a nice catch on your part. I'm not familiar with that one as I'm not from Texas. I would request dismissal with prejudice from them. Now that they know you are aware of their violation they'll probably be very accommodating.

 

 

I just called, and the Court Clerk told me that in order to have the suit dismissed "with prejudice," I have two options:

 

1) File for a hearing before the Judge signs the dismissal in the next few days (the next available hearing date is mid-January) and ask the Judge in person for the Plaintiff's request to be changed to "with prejudice" in person - OR-

2) Request the Plaintiff to re-file their own Notice of Non-Suit WITH prejudice 

 

IOW, I have to either call for a court hearing with the judge, or somehow convince the JDB to refile their own Notice of Non-Suit in the next few days before the judge signs their Notice of Non-Suit. I'm not 100 percent positive that they dropped the case because I caught the potential issue of them violating Texas Finance Code § 392.101, but it's the only unique thing that stands out other than the JDB simply lacking Proof of their claim.

 

 

If I leave it alone, yes, they could come back -- but with the knowledge that I would immediately file a FDCPA violation against them for the first suit. I don't know what the "win" statistic for JDBs in Texas who re-file against a consumer after potentially committing a FDCPA violation and breaking Texas state law, but I would think it would be very low.

 

Honestly don't know which way to go on this one ...  :hmm:

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Do a Google Scholar search on this violation and see how judges have ruled on it. That will tell you what kid of trouble the plaintiff could be in.

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If I understand correctly, you're about nine months away from the four year SoL running for a $60k debt. I suggest moving more aggressively on this one; if the information you posted is accurate, it seems like an FDCPA violation to me. Find an FDCPA lawyer in your area to double-check, then retain said lawyer to rack up attorney's fees. Use that pressure to parlay this "without prejudice" dismissal into a proper "with prejudice" dismissal.

 

The reason I counsel against passively waiting is that they might sell this account to another debt collector, one who is in fact properly bonded and who will pursue you before the statute of limitations runs out. A potential $60k claim is enough incentive to move quickly, after all. You'll likely still win, of course, but it'll be another headache, and the one year statute of limitations to pursue the current JDB for its violation might expire before you have a chance to get anything out of it.

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just file a complaint with you secretary of state

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