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Case Dismissed but I Want More!


Claude
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Junk debt buyer sued me two years ago seeking a summary judgment. Didn't work, I responded and they didn't pursue the suit. Several weeks ago I received a letter from the court stating the case has been dismissed without prejudice per the Plaintiffs motion.

 

Nice!  However I am going to file a motion to have the case dismissed WITH prejudice so I don't have the matter hanging over my head forever. Since I need more than that give to the judge can anyone provide me with ANY legal reasons I can put into the motion to get a favorable decision from a judge who I suspect is annoyed with how long this case has sat dormant on his docket and might be favorably inclined toward me?

 

The statue of limitations isn't past so that won't fly. I'm hoping that if I throw enough reasons out at least one of them might give the judge a reason to grant my motion. Any and all suggestions would be greatly appreciated.

 

Also, what is the significance, if any, of the Plaintiff making the request for dismissal and not me?

 

Thanks in advance for any assistance provided.

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In my state and most I am familiar with the plaintiff has the option to dismiss with or without prejudice. In my cases it has been called a voluntary non-suit. From the time this is filed they usually have one year to file another suit, although it is rare for a JDB. It is very possible they will just sell the account again. 

 

I have never had any luck convincing a judge to change without to with prejudice since the ball is in the plaintiff's court. That being said I have had the entire debt wiped out after dismissal by filing an FDCPA Claim against them. Even if they violated your rights under the FDCPA it is probably too late for you to try this strategy. The SOL is only one year from the date of the violation for FDCPA Claims. 

 

What you need to figure out is if the filing of the summary judgement changes your situation any. You will need to research the type of court the suit was filed in for Nebraska. General Sessions, Small Claims, etc. You might also check and see if Nebraska has any state rules that differ from the FDCPA.

 

While its probably a long shot you might get a free consultation with a consumer/FDCPA attorney. It will only take an experienced attorney a few minutes to tell you if you have any options. You might also check out the link below.

 http://www.legalaidofnebraska.com/article/280

 

Remember what ever happens that you still have a WIN, so enjoy the moment.

Congratulations!  ::USA::

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In my state and most I am familiar with the plaintiff has the option to dismiss with or without prejudice. In my cases it has been called a voluntary non-suit. From the time this is filed they usually have one year to file another suit, although it is rare for a JDB. It is very possible they will just sell the account again. 

 

I have never had any luck convincing a judge to change without to with prejudice since the ball is in the plaintiff's court. That being said I have had the entire debt wiped out after dismissal by filing an FDCPA Claim against them. Even if they violated your rights under the FDCPA it is probably too late for you to try this strategy. The SOL is only one year from the date of the violation for FDCPA Claims. 

 

What you need to figure out is if the filing of the summary judgement changes your situation any. You will need to research the type of court the suit was filed in for Nebraska. General Sessions, Small Claims, etc. You might also check and see if Nebraska has any state rules that differ from the FDCPA.

 

While its probably a long shot you might get a free consultation with a consumer/FDCPA attorney. It will only take an experienced attorney a few minutes to tell you if you have any options. You might also check out the link below.

 http://www.legalaidofnebraska.com/article/280

 

Remember what ever happens that you still have a WIN, so enjoy the moment.

Congratulations!  ::USA::

Thank you so much for your thoughtful reply ArtVandelay. The more I look at Nebraska's civil procedure https://docs.google.com/viewer?a=v&q=cache:ijLBdTqwq_QJ:www.ned.uscourts.gov/localrules/necivr_060104.pdf+&hl=en&gl=us&pid=bl&srcid=ADGEESjzZuGdhi8Xdv76Q3zgSgE5o6Y8_1p17lZb2LiAIEoYOlyUPlEUsIennSQHVI9bL6_2PqhKarx87crK3w3XmmMxKzYvwyVmXKwpLOqrb9Itpibv81T1DGbciiVuRssw2qpQpTfg&sig=AHIEtbRIQCqglHuF8-4fAgvPno_8AT0d5Q the less optimistic I become regarding a favorable ruling. The plaintiff needs to have made a procedural error or misdeed in some way. I also need to specifically cite case law in my brief. Not sure I can do that.

 

Thanks again for your input and I will definitely check out the link you provided.

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The plaintiff needs to have made a procedural error or misdeed in some way. I also need to specific cite case law in my brief. Not sure I am up to the task.

 

It is not uncommon for a JDB to let a case sit out there like this if you and/or the court let them do it. They realize they have nothing to proceed and are hoping you offer to settle. They also may do this to avoid an after the fact FDCPA Lawsuit. Like I said before even if they did violate your rights they let the FDCPA SOLs expire, and you have few to zero options left. 

 

I hope you never have a next time, but if you do poke at them if they try to stall. A poker player with no playable cards almost always folds when you call them on it. Just keep checking you credit report to see if a new JDB shows up. If they do make sure and get this removed from your CRs.

 

Still celebrate the win and remember you are in better shape than the other 95%+! 

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I hope you never had a next time, but if you do poke at them if they try to stall. A poker player with no playable cards almost always folds when you call them on it. Just keep checking you credit report to see if a new JDB shows up. If they do make sure and get this removed from your CRs.

 

Point taken, thanks. Regarding the credit report, is the JDB that just filed for dismissal going to remove it from my credit report or do I have to take action for it to be removed?

 

Also, is their failure to notify me of their motion for dismissal grounds for me to claim procedure error or misconduct in my motion for dismissal with prejudice?

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Point taken, thanks. Regarding the credit report, is the JDB that just filed for dismissal going to remove it from my credit report or do I have to take action for it to be removed?

 

The dismissal will not cause the removal. You can dispute it and hope that they ignore it. Your odds improve greatly if they sell it, but who knows if/when they will make that decision. 

 

 

 

Also, is their failure to notify me of their motion for dismissal grounds for me to claim procedure error or misconduct in my motion for dismissal with prejudice?

 

I don't have a clue on this one. In my experience I was informed at trial when I heard the attorney ask for dismissal in front of the judge. Maybe someone with experience in a similar situation will let you know.

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It is not uncommon for a JDB to let a case sit out there like this if you and/or the court let them do it. They realize they have nothing to proceed and are hoping you offer to settle. They also may do this to avoid an after the fact FDCPA Lawsuit. Like I said before even if they did violate your rights they let the FDCPA SOLs expire, and you have few to zero options left. 

 

I hope you never have a next time, but if you do poke at them if they try to stall. A poker player with no playable cards almost always folds when you call them on it.

 

 

If there is a next time you are suggesting that I go on the offensive?  Demand discovery and what else in hope that  they don't have the paperwork.  Thereby providing  grounds to motion for dismissal with prejudice?

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Claude:

 

 

I filed a MTD recently,asking for 'with Prejudice' since the JDB never answered anything I sent him (sent CMRR, too): I'd sent RFA's, rogs, POD = zilch reply! It'd been 90 days. Never even showed up for the Motion.

 

My MTD was approved, but withOUT prejudice. IMO, NOT a win, at all, just a repeat of the waste I've been drawn into for months. Started getting calls again today from the JDB he passed it off too. In hindsight, I would have waited for the pretrial conference when he would've scrambled to get something to me (rushjobs are particularly poorly done by the already screw-up prone JDBs) This might also have allowed me a stronger MSJ position. Lesson learned.

 

Can BV80 or Huey Pilot or one of the hero experts on this thread start one with ways to turn withOUT prejudice into WITH?

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@WillhelpU2

 

You said you received a call from another JDB for the account.   First, you need to make sure it is a NEW JDB.  It might be a collector hired by the JDB who sued you. 

 

BUT, if this caller is a new JDB who has purchased the account, then it wouldn't matter if the court changed the ruling to with prejudice.  If the old JDB no longer owns the account, they can't sue you again.

 

Note that even if the court had originally dismissed the case with prejudice, that wouldn't prevent the JDB from selling the account.

 

Has the JDB who sued you placed an entry on your credit report?

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Excellent points. The MTD -JDB was Cavalry using a MA lawyer and Cav did put it on my report. Then i got calls from ACI too on the same item during that whole process. The VM named a "debt collector"  I didn't recognize and it just came in today so will have to check. 

 

Thank you

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I can only add that when my cases were dismissed 'without' prejudice, I could think of nothing else but seeing what I could do to get a WITH prejudice dismissal.  My thinking was "how DARE they drag me through this process and essentially say, forget it."

 

At least in Arkansas, I found that there was NOTHING I could do to get a 'with' prejudice, because I had no legal basis for requesting this.  After a couple of weeks, I had to just accept the fact that a "dismissal" was a win for me, and just move on.  I knew the statue of limitation had expired should any other JDB come calling... -- but nothing happened.

 

I guess I'm saying unless your state has different rules, or the JDB did something legally wrong, move on -- and hope they file again!  Either way, good luck -- you WON!

 

-J

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I can only add that when my cases were dismissed 'without' prejudice, I could think of nothing else but seeing what I could do to get a WITH prejudice dismissal.  My thinking was "how DARE they drag me through this process and essentially say, forget it."

 

At least in Arkansas, I found that there was NOTHING I could do to get a 'with' prejudice, because I had no legal basis for requesting this.  After a couple of weeks, I had to just accept the fact that a "dismissal" was a win for me, and just move on.  I knew the statue of limitation had expired should any other JDB come calling... -- but nothing happened.

 

I guess I'm saying unless your state has different rules, or the JDB did something legally wrong, move on -- and hope they file again!  Either way, good luck -- you WON!

 

-J

 

That's exactly where my head was - "hope they file again"  You're right - much better outlook. Thanks for the reset!

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I can only add that when my cases were dismissed 'without' prejudice, I could think of nothing else but seeing what I could do to get a WITH prejudice dismissal.  My thinking was "how DARE they drag me through this process and essentially say, forget it."

 

At least in Arkansas, I found that there was NOTHING I could do to get a 'with' prejudice, because I had no legal basis for requesting this.  After a couple of weeks, I had to just accept the fact that a "dismissal" was a win for me, and just move on.  I knew the statue of limitation had expired should any other JDB come calling... -- but nothing happened.

 

I guess I'm saying unless your state has different rules, or the JDB did something legally wrong, move on -- and hope they file again!  Either way, good luck -- you WON!

 

-J

After reading the advice of everyone I guess I would be wasting my time so I am going to forget filing a motion t get with prejudice. But I don't understand why I should hope they refile the suit. Help me understand why please. Thanks for your input.

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how did the Plaintiff prejudice you by dismissing the case? This is what you have to prove to the judge.

They violated this state rules of Civil procedure by not providing me a copy of their motion. I guess that isn't enough to get it dismissed with prejudice (from what I've read here). As the case has been dormant for nearly two years I guess I couldn't argue that the dismissal prevented me from demanding they prove their standing to sue or whatever other obstacles I could throw at them. I was also thinking it would be a way to add to the JDB expense by making their lawyer deal with the case a bit more. I guess I won't waste my time. Oh well.

 

Thanks to all who replied, your input has been very helpful.

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wouldn't a motion for sanctions be fruitful for any discovery matters that were fumbled. If that happens the defendant could request terminating sanctions and costs. That would limit the ability of the new jdb to benefit from the stopping of the SOL clock. terminating sanctions could be the striking of the complaint, dismissal with prejudice, maybe even monetary sanctions.

 

we will have to look into this.

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BUT, if this caller is a new JDB who has purchased the account, then it wouldn't matter if the court changed the ruling to with prejudice.  If the old JDB no longer owns the account, they can't sue you again.

 

Note that even if the court had originally dismissed the case with prejudice, that wouldn't prevent the JDB from selling the account.

 

So even if I did receive a dismissal with prejudice and the original jdb sells it the new jdb can sue me on the same debt? The original with prejudice dismissal becomes completely irrelevant?
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wouldn't a motion for sanctions be fruitful for any discovery matters that were fumbled. If that happens the defendant could request terminating sanctions and costs. That would limit the ability of the new jdb to benefit from the stopping of the SOL clock. terminating sanctions could be the striking of the complaint, dismissal with prejudice, maybe even monetary sanctions.

 

we will have to look into this.

When does the SOL clock start? Can it be reset or stopped? I've always thought the SOL clock begins when the last payment to credit card is made. Is this correct? Thanks.

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BUT, if this caller is a new JDB who has purchased the account, then it wouldn't matter if the court changed the ruling to with prejudice.  If the old JDB no longer owns the account, they can't sue you again.

 

Note that even if the court had originally dismissed the case with prejudice, that wouldn't prevent the JDB from selling the account.

 

So even if I did receive a dismissal with prejudice and the original jdb sells it the new jdb can sue me on the same debt? The original with prejudice dismissal becomes completely irrelevant?

 

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wouldn't a motion for sanctions be fruitful for any discovery matters that were fumbled. If that happens the defendant could request terminating sanctions and costs. That would limit the ability of the new jdb to benefit from the stopping of the SOL clock. terminating sanctions could be the striking of the complaint, dismissal with prejudice, maybe even monetary sanctions.

 

we will have to look into this.

to get sanctions one would have to prove lack of candor before a tribunal. All the Plaintiff did was beat the defendant to the filing because they knew that after two years the defendand could have filed a motion to dismiss with prejudice for want of prosecution./ they just saved their claim

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@Claude

 

A dismissal with prejudice acts as an adjudication on the merits of the case.  That usually means that the judge made a ruling based upon the merits of the case.  For instance, he may rule that the debt is not valid or that the plaintiff has failed to prove ownership.   

 

If the JDB were to sell the debt, and the new JDB decided to sue, you would have the affirmative defense of res judicata meaning the case was already tried and judged.

 

But the point is that there may not be anything you can do to change the current ruling.  Courts allow a voluntary dismissal which is usually without prejudice.  For there to be a voluntary dismissal with prejudice, both parties would have to agree to it. 

 

You need to contact an attorney to find out if there is a reason you could request that the court change the ruling.  However, barring some prejudice to you, I can't think of anything.  I know you think that the fact that they can refile prejudices you, that's not really the best reason.  If that were a valid enough reason, every defendant would fight a dismissal without prejudice.

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When does the SOL clock start? Can it be reset or stopped? I've always thought the SOL clock begins when the last payment to credit card is made. Is this correct? Thanks.

I would count from 30 days after the last payment was made (unless I had a contract saying different). It can be reset by you making a payment (or sometimes forming a new agreement). If they file a lawsuit within the SOL; then it will stop until the lawsuit is adjudicated. If the lawsuit is dismissed the SOL will continue running as if nothing ever happened.

 

If you got a dismissal without prejudice I would just accept it as a victory. If you happen to pick up a new lawsuit then you will just have to fight it.

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If you got a dismissal without prejudice I would just accept it as a victory. If you happen to pick up a new lawsuit then you will just have to fight it.

Exactly- pat yourself on the back and leave well enough alone.  There is probably less than a 1% chance that they will file another suit against someone who defeated their Motion for Summary Judgment; they have long since moved on to the easy default judgment pickings.

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