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Cross complaint to force a judgment(any advantage?)


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Looking downline at credit repair would it be more advantageous to get judgments in your favor on these JDB suits.

 

In other words if you have them on FDCPA, or FCRA or even TCPA and file a cross complaint they wont be able to dismiss. If you actually have a case for your cross complaint it could result in a double win...they have no case and lose you have a case and win the cross complaint. You could even negotiate an uncontested summary judgement in your favor in exchange for dropping your cross complaint.

 

With the judgment instead of the dismissal could you go to the credit bureaus and force removal of derogs?

 

 

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A cross complaint does not mean they cannot dismiss. If they do dismiss, the cross complaint goes forward on its own. Nobody will consent to an unopposed MSJ. What you would have to ask for is a dismissal with prejudice of their complaint in return for dropping yours. If they don't think you have a case they will not agree and you could get stuck with their legal fees for filing a frivolous case, which they can have removed to federal court. Don't think you want to go there.

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A cross complaint does not mean they cannot dismiss. If they do dismiss, the cross complaint goes forward on its own. Nobody will consent to an unopposed MSJ. What you would have to ask for is a dismissal with prejudice of their complaint in return for dropping yours. If they don't think you have a case they will not agree and you could get stuck with their legal fees for filing a frivolous case, which they can have removed to federal court. Don't think you want to go there.

 

Right, but removing to federal on a purely FDCPA cross complaint could work against the JDB.  My response to that would be that the JDB's claims are claims that the federal court lacks subject matter jurisdiction because FDCPA claims stand independently of the validity of the alleged debt.  IIRC, it is 1ststep who knows a good deal about that one. 

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I didnt know they could drop suit if you file a cross complaint with your answer. If you have a solid case for violations and you can force a dismissal with prejudice, I don't think it will help with the credit bureaus.

 

I'm not sure a judgment would help downline or not.

 

Judgments seem hard to come by anyway since very few of these JDB cases actually go to trial.

 

It was a thought,

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I didnt know they could drop suit if you file a cross complaint with your answer. If you have a solid case for violations and you can force a dismissal with prejudice, I don't think it will help with the credit bureaus.

 

I'm not sure a judgment would help downline or not.

 

Judgments seem hard to come by anyway since very few of these JDB cases actually go to trial.

 

It was a thought,

 

 

It is the difference between compulsory counter claims and permissive ones.  Whether or not the JDB violated the FDCPA and/or state consumer law in its efforts to collect the debt has nothing to do with whether or not you owe the debt, so such claims are permissive, not compulsory.  In other words, your counter/cross claims can stand on their own. 

 

Also, I would argue that filing counter/cross claims in order to force a judgment is not a good idea unless you have other good reasons to file them too.  If you're going to do anything of the sort, make damned sure you know what you're doing, then do it because they violated the law and you need to be made whole again, not to force a judgment.  If the only reason you're doing something is to force a judgment, it could be argued that what you are doing is abuse of process. 

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A cross complaint does not mean they cannot dismiss. If they do dismiss, the cross complaint goes forward on its own. Nobody will consent to an unopposed MSJ. What you would have to ask for is a dismissal with prejudice of their complaint in return for dropping yours. If they don't think you have a case they will not agree and you could get stuck with their legal fees for filing a frivolous case, which they can have removed to federal court. Don't think you want to go there.

 

At least in the 4th Cir, the court in "Capital One Bank (USA) N.A. v. Jones," (N.D. Oh. 2009), held that Jones's cross-complaint against Capital One Bank alleging FDCPA violations could not be removed to federal district court by Cap One.

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In "Deutsche Bank v. Collins," (W.D. Ark. 2012), the court cited the US Supreme Court ruling in "Shamrock Oil v. Sheets," 313 US 100 (1941) saying:

 

The law has been long settled on the question of whether a plaintiff in state court who becomes a counterdefendant can remove the action to federal court and the settled answer was no.  Even under the Class Action Fairness Act, a counterdefendant may not  remove to federal court."

 

Although most FDCPA cases cited on this forum reference federal courts, state courts have been deciding FDCPA cases for decades and continue to do so today.

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In "Deutsche Bank v. Collins," (W.D. Ark. 2012), the court cited the US Supreme Court ruling in "Shamrock Oil v. Sheets," 313 US 100 (1941) saying:

 

The law has been long settled on the question of whether a plaintiff in state court who becomes a counterdefendant can remove the action to federal court and the settled answer was no.  Even under the Class Action Fairness Act, a counterdefendant may not  remove to federal court."

 

Although most FDCPA cases cited on this forum reference federal courts, state courts have been deciding FDCPA cases for decades and continue to do so today.

 

 

I've not ventured into the territory of an FDCPA counter-claim being removed to Federal, but the FDCPA clearly gives any court of "competent jurisdiction."  So state courts can hear it. 

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