Counterclaims, Adding Complaint Against Lawfirm

[Trapezius]

In reviewing the FDCPA, the language appears to be clear enough that an attorney acting on behalf of a debt collector could also be considered a debt collector?

 

Is there any case law on this topic? Also, What needs to be done to assert that my counterclaims are against the JDB AND the law firm filling on their behalf?

[BV80]

As initially enacted, the FDCPA exempted "any attorney-at-law collecting a debt ... in the name of a client" from the statutory definition of debt collector. Pub. L. 95-109, § 803(6)(F), 91 Stat. 874, 875 (1977). In 1986, reacting to the explosion of law firms conducting debt collection businesses, Congress repealed the exemption. Pub. L. 99-361, 100 Stat. 768; see H.R. Rep. 99-405, reprinted in 1986 U.S.C.C.A.N. 1752. Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814, 817 (8th Cir. 2012).


[T]he Supreme Court has held that attorneys can qualify as "debt collectors" under the FDCPA, and held that FDCPA requirements apply to "attorneys who `regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation." Heintz v. Jenkins, 514 U.S. 291, 298, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995).

 

The emphasis on "Congress repealed the exemption" is my own.  That emphasis on the phrase is not in the actual citation.

[PC1978]

I did it in Ohio once before, joindering an additional party is allowed in the Civil Rules.  I am not sure if this was the proper way to request it, but it worked.  I included the following in my answer and counterclaim.  The language in my request is taken directly from the Ohio Rules of Civil Procedure so you may want to look at the Arkansas Rules.

 

You do have to have the Third Party served properly since they are a new party to the action, they must be served by a method approved by the court, the same way a new lawsuit is started, to ensure they receive the summons and counterclaim.

 

 

 

DEFENDANT’S REQUEST TO JOINDER ADDITIONAL PARTY:

Now comes the Defendant in the above entitled matter and pursuant to the Ohio Rules of Civil Procedure
13(H) and 20(A) respectfully requests to Joinder Additional Party based on facts stated below:

The Defendant respectfully requests that:

XXX

XXX

XXX

XXX

Be joined as an additional party, hereinafter referred to as Third Party Counterclaim Defendant, with the
Plaintiff in the DEFENDANT’S COUNTERCLAIM AGAINST THE PLAINTIFF AND THE THIRD
PARTY and

Be joined in one action as defendants with the Plaintiff as there is asserted against them jointly a right to
relief in respect of and arising out of the same succession of occurrences and a question of law and fact
common to all defendants did arise in the action.

Third Party Counterclaim Defendant need not be interested in defending against all the relief demanded.
Judgment may be given against one or more defendants according to their respective liabilities.

Third Party Counterclaim Defendant did VIOLATE THE CONSUMER PROTECTION AFFORDED THE
DEFENDANT BY THE FDCPA as set forth in COUNT 2 of the DEFENDANT’S COUNTERCLAIM
AGAINST THE PLAINTIFF AND THE THIRD PARTY.
 

[Trapezius]

I did it in Ohio once before, joindering an additional party is allowed in the Civil Rules.  I am not sure if this was the proper way to request it, but it worked.  I included the following in my answer and counterclaim.  The language in my request is taken directly from the Ohio Rules of Civil Procedure so you may want to look at the Arkansas Rules.

 

You do have to have the Third Party served properly since they are a new party to the action, they must be served by a method approved by the court, the same way a new lawsuit is started, to ensure they receive the summons and counterclaim.

 

 

 

DEFENDANT’S REQUEST TO JOINDER ADDITIONAL PARTY:

Now comes the Defendant in the above entitled matter and pursuant to the Ohio Rules of Civil Procedure

13(H) and 20(A) respectfully requests to Joinder Additional Party based on facts stated below:

The Defendant respectfully requests that:

XXX

XXX

XXX

XXX

Be joined as an additional party, hereinafter referred to as Third Party Counterclaim Defendant, with the

Plaintiff in the DEFENDANT’S COUNTERCLAIM AGAINST THE PLAINTIFF AND THE THIRD

PARTY and

Be joined in one action as defendants with the Plaintiff as there is asserted against them jointly a right to

relief in respect of and arising out of the same succession of occurrences and a question of law and fact

common to all defendants did arise in the action.

Third Party Counterclaim Defendant need not be interested in defending against all the relief demanded.

Judgment may be given against one or more defendants according to their respective liabilities.

Third Party Counterclaim Defendant did VIOLATE THE CONSUMER PROTECTION AFFORDED THE

DEFENDANT BY THE FDCPA as set forth in COUNT 2 of the DEFENDANT’S COUNTERCLAIM

AGAINST THE PLAINTIFF AND THE THIRD PARTY.

 

Thanks for the info.

 

The Law Firm is already representing JDB, so all of my counterclaims would be read by them anyways. Would I still need to properly serve them?

 

Also did you win? And if so, regarding the FDCPA claim, did you collect twice?

[PC1978]

Thanks for the info.

 

The Law Firm is already representing JDB, so all of my counterclaims would be read by them anyways. Would I still need to properly serve them?

 

Also did you win? And if so, regarding the FDCPA claim, did you collect twice?

 

Yes you need to have them served, even though they will be getting/reading it on behalf of their client.  You are in effect suing them and since they are new party they have to be served with a summons and complaint (which in this case is your counterclaim).

 

We settled, they dismissed their case with prejudice and I dismissed my counterclaims.

 

I don't think you could get $1000 from each party since it is all part of the same action.

 

You may also want to look at procedure, like I said before I am not sure if this was exactly the right procedure but it worked.  I have seen cases where the Defendant filed a "third party complaint" to bring the third party into the action.