Trapezius Posted August 19, 2013 Report Share Posted August 19, 2013 Without going into too much detail... I am being sued by a JDB. After filling counterclaims, and sending discovery, they did offer a mutual dismissal, which I declined. After much pushing, I was able to get a proper response to some of the discovery, at this point, they do account statements, that do show a charged off account. The problem is, the amount they claimed in the initial complaint is HIGHER than the amount their statements claim. My claim against them is violation of State Collection Agency(as a result of violation of that act, comes state deceptive trade violation, state-version of fdcpa violations, and fdcpa violations) I was hoping to get some advice, on whether it is worth my time to try to get a judgment AGAINST them, or just take the mutual dismissal, or just continue to trial. Link to comment Share on other sites More sharing options...
Flyerfan Posted August 19, 2013 Report Share Posted August 19, 2013 Depends on a multitude of things. How much are they suing for (approx)? How good is their evidence (chain of assignment, affidavits, statements)? How's your judge? Is he winging it or following the letter of the law? A mutual dismissal WITH prejudice is a good feeling. Only gamble with what you're willing to lose. Link to comment Share on other sites More sharing options...
Trapezius Posted August 19, 2013 Author Report Share Posted August 19, 2013 Depends on a multitude of things. How much are they suing for (approx)? How good is their evidence (chain of assignment, affidavits, statements)? How's your judge? Is he winging it or following the letter of the law? A mutual dismissal WITH prejudice is a good feeling. Only gamble with what you're willing to lose. $887 is the amount the complaint states. The account statements show exactly $100 less. Evidence Provided thus far(aftering sending confer letter): Account Statements for 6 months Judge: No Idea. Link to comment Share on other sites More sharing options...
racecar Posted August 19, 2013 Report Share Posted August 19, 2013 Send a meet and confer letter to the attorney for a mutual dismissal with prejudice.This would save both party's time and money and would be in the best interest of both party's. "The problem is, the amount they claimed in the initial complaint is HIGHER than the amount their statements claim." answer: Interest that's accrued on the debt. Unless you are a Coltfan1972 (experienced litigant) pleading the violations and winning are two different things.If you lose your argument you will owe the other side a fortune in legal fee's. "state deceptive trade violation, state-version of fdcpa violations, and fdcpa violations" 1 Link to comment Share on other sites More sharing options...
Flyerfan Posted August 19, 2013 Report Share Posted August 19, 2013 $887 is the amount the complaint states. The account statements show exactly $100 less. Evidence Provided thus far(aftering sending confer letter): Account Statements for 6 months Judge: No Idea. Here's the problem I see. This is not a lot of money BUT with your counterclaim you will force them to work for this like it's $20,000. Not just for the money but for the blemish on their record. I agree with Racecar. Go for the dismissal with prejudice. 1 Link to comment Share on other sites More sharing options...
admin Posted August 19, 2013 Report Share Posted August 19, 2013 Moving to legal forums....you should have much better luck there. Link to comment Share on other sites More sharing options...
BTO429 Posted August 20, 2013 Report Share Posted August 20, 2013 An amount that is stated as owed can only be proven by offering an accounting from a zero balance. There is plenty of case law to support this. Link to comment Share on other sites More sharing options...
Trapezius Posted August 20, 2013 Author Report Share Posted August 20, 2013 An amount that is stated as owed can only be proven by offering an accounting from a zero balance. There is plenty of case law to support this. The original complaint does not mention "Account Stated" or anything really, it only says John Doe owes JDB $XXX Would this case law still support this even if account stated is not present? In either case, the account statements would not be admissible at trial.My options are to object to it as hearsay, or let it in and use it as proof of an FDCPA violation Link to comment Share on other sites More sharing options...
neweuquol Posted August 21, 2013 Report Share Posted August 21, 2013 I find it a little unusual that the additional amount is exactly $100. I normally have a separate interrogatory to have them detail every purchase, cash advance, payment, charge, etc on the account. They normally provide some billing statements but never all. I never had anything like that in any of my client's cases - a nice round number that is higher than the balance on the last billing statement. Sounds like another interrogatory and/or an amortization is in order if they are claiming additional interest. Link to comment Share on other sites More sharing options...
debtzapper Posted August 21, 2013 Report Share Posted August 21, 2013 I would take a mutual dismissal with prejudice. Judges like to see cases moved along, and digging in hard may cause the judge to look unfavorably at your case. Also, like Flyerfan said, if you push the JDB against the wall, they may put up one long, bitter, expensive fight just as a matter of principle. 1 Link to comment Share on other sites More sharing options...
HotWheels96 Posted August 21, 2013 Report Share Posted August 21, 2013 An amount that is stated as owed can only be proven by offering an accounting from a zero balance. There is plenty of case law to support this.Can you point me to some California case law about this? Link to comment Share on other sites More sharing options...
1stStep Posted August 21, 2013 Report Share Posted August 21, 2013 Take the mutual dismissal with prejudice. They'll never come after you for the debt again. Link to comment Share on other sites More sharing options...
Trapezius Posted August 22, 2013 Author Report Share Posted August 22, 2013 Sorry guys. Im a risk taker Going for Partial Summary Judgment. The violation of being unlicensed is pretty much open and shut, tons of case law behind it. Link to comment Share on other sites More sharing options...
kutuzov Posted August 22, 2013 Report Share Posted August 22, 2013 They don't have a license to collect in your state? that's a FDCPA violation on it's own, plus they don't have the right to file suit in your state without a license. Call them and offer them a settlement you get paid 1k or more, and get a mutual dismissal with prejudice, I mean that is a slunk dunk violation, filling suit without a license. Add the misrepresenting a debt for the amount different ... Maybe call them tell them you wanna settle on your terms and they will be saving attorney fees, since a consumer attorney will very likely take the case and even go for a class action ... 2-3k and mutual dismissal sounds fair, but see what you can get. Link to comment Share on other sites More sharing options...
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