Jump to content

Plaintiff failed to file response to Defendant's counterclaim in answer


Recommended Posts

1.441(2) Pleading. Answer to a petition must be served on or before the date prescribed in

 

accordance with rule 1.303. A party served with a pleading stating a cross-claim against the party

 

shall serve an answer thereto within 20 days after the service of the pleading upon the party. The

 

plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the

 

answer, or if a reply is ordered by the court, within 20 days after service of the order, unless the

 

order otherwise directs.

 

The 20 day period for the plaintiff to answer my (defendant's) counterclaim has come and gone.  Would a MTD 

 

based on this RCP be what I need to do now or would a MSJ be the way to go? 

Link to comment
Share on other sites

                        Plaintiff failed to file response to these counterclaims from my answer in the 20 day period allowed.

 

                             Counterclaim I – Iowa Consumer Credit Code

 

 

 1.  Plaintiff – Counterclaim Defendant violated the Iowa Fair Debt Collection Practices by

 

      “failure to provide a proper notice to cure” under Iowa Consumer Credit Code Sections

 

      537.5110, 537.5111(3) (7) and 537.5201(1)(z).  Notice of right to cure improper.

 

 2.  The Iowa Fair Debt Collection Practices Act, Iowa Consumer Credit Code Section 537.7101

 

      regulates the activities of debt collectors of Iowa.                                                           

 

 3.  Plaintiff – Counterclaim Defendant is a “debt collector” within the meaning of the

 

Iowa Fair Debt Collection Practices Act, Iowa Consumer Credit Code Section 537.7103(2).

 

 4.  Plaintiff – Counterclaim Defendant’s actions toward the Defendant –

 

Counterclaim Plaintiff prior to and in this lawsuit constitute “debt collection” within the

 

meaning of the Iowa Fair Debt Collection Practices Act, Iowa Consumer Credit Code

 

Section 537.7102(3).

 

 5.  Iowa Fair Debt Collection Practices Act, Iowa Consumer Credit Code Section 537.7103(1)(f)

 

      prohibits a debt collector from taking any actions which violate Iowa Code Section 537.

 

 6.  Violations of Iowa Fair Debt Collection Practices Act, Iowa Consumer Code Section 537

 

      give rise to a cause of action for actual damages. For certain violations, there is an additional

 

      penalty of between $100 and $1,000.  Iowa Fair Debt Collection Practices Act, Iowa

 

      Consumer Credit Code Section 537.5201.  The provisions which give rise to the additional

 

penalty include prohibitions against unfair debt collection practices under Iowa Fair Debt

 

Collection Practices Act, Iowa Consumer Credit Code Section 537.7103.

 

 7.  The Plaintiff – Counterclaim Defendant’s pleading failed to comply with Iowa

 

Rules of Civil Procedure 1.403(1) when Plaintiff – Counterclaim Defendant stated the

 

alleged specific amount of monetary damages sought.  It should state whether the alleged

 

amount of damages meets jurisdictional requirements for the alleged amount in controversy.   

 

8.  The amount to be awarded for unfair debt collection practices rests at the

 

discretion of the court, but the imposition of at least the minimum penalty is mandatory.  

 

Public Finance Company v. Van Blaricomme, 324 N.W.2d 716 (Iowa 1982).  The consumer

 

need not have actual damages in order to have the penalty assessed.

 

 

                        Counterclaim II – Fair Debt Collection Practices Act

 

 

  1.  Plaintiff – Counterclaim Defendant failed to provide a proper notice to cure.  Gemini Capital 

 

       Group, LLC v. Foley, Iowa Court of Appeals (2011)

 

  2.  Plaintiff – Counterclaim Defendant is a “debt collector” within the meaning of 15 U.S.C.

 

       Section 1692(a)(6) of the federal Fair Debt Collection Practices Act, hereinafter referred to  

 

       as F.D.C.P.A.                                                            

 

  3.  ________________is a “consumer” within the meaning of the federal F.D.C.P.A. 15 U.S.C.

 

       1692(a)(3).

 

  4.  Plaintiff – Counterclaim Defendant is attempting to collect a “Debt” within the

 

       meaning of the federal F.D.C.P.A. 15 U.S.C. 1692(a)(5).

 

  5.  F.D.C.P.A. 15 U.S.C. 1692e(5) prohibits a debt collector from making a false, deceptive or

 

       misleading representation in connection with the collection of a debt, including but not   

   

       limited to the threat to take any action that cannot legally be taken.

 

  6. Defendant – Counterclaim Plaintiff is entitled to the award of a statutory penalty of

 

       up to $1,000.00, actual damages and court costs for Plaintiff – Counterclaim Defendant’s

 

       threat to take an action that cannot legally be taken. 15 U.S.C. Section 1692e(5).

 

  7.  In the entire course of its action, Plaintiff – Counterclaim Defendant willfully

 

       violated provisions of F.D.C.P.A. 15 U.S.C. 1692 e(2)(A) by falsely representing the amount

 

       of the alleged debt.

   

  8. The amount to be awarded for unfair debt collection practices rests at the discretion of the

 

Court, but the imposition of at least the minimum penalty is mandatory.  The consumer

 

need not have actual damages in order to have the penalty assessed.  Public Finance 

 

Company v. Van Blaricomme, 324 N.W.2d 716 (Iowa).

                     

                

 

 

 

 

 

               WHEREFORE, the Defendant Pro se asks for the following relief.

 

  1. A dismissal with prejudice of Plaintiff’s petition at Plaintiff’s cost.

 

  1. Declaratory Judgment that Plaintiff’s conduct violated the F.D.C.P.A. and

 

            declaratory and injunctive relief for the plaintiff’s violations of the Iowa

 

            Consumer Credit Code and other laws of the State of Iowa.

 

  1. An award of a statutory penalty of $1,000.00, actual damages and court costs

 

            for Plaintiff’s failure to comply with the notice to cure requirements.

 

  1. An award of a statutory penalty of $1,000.00, actual damages and court

 

            costs for Plaintiff’s attempt to take an action that cannot legally be taken.

 

  1. Any other relief that the Court may find just and proper.
Link to comment
Share on other sites

Link to comment
Share on other sites

BV80,

 

  Plaintiff filed an answer to my counterclaim today and so it was 3 days late.  I am going to still file a default judgment but as a defendant, there aren't many examples in court records 

 

to use as a template and the court didn't have a standard one.  You have helped me with Iowa stuff today and in the past and I was wondering if you had any ideas on how I can find 

 

one to customize over to situation.  Thanks a bunch for your help in the past and if you have any arrows in your quiver send one my way...lol 

Link to comment
Share on other sites

What you have there reads more like a motion for default judgment (you're alleging a cause of action and asking for damages, not just a dismissal). I don't know Iowa rules specifically, but in general, you have to file an application for default and serve that on the other party. This usually gives them another few days to then file an answer. Also, courts don't like issuing default judgments when a response has been filled and they usually set them aside on motion from the answering party when an answer is untimely anyway.

Basically, since they answered (before you even got your application in, no less), I'd let this one go.

Edit: here's a good Iowa case to illustrate my point.

"Because trial on the merits is favored, a liberal approach is to be taken in granting relief from defaults."

http://scholar.google.com/scholar_case?case=16811099361324028412&q=default+judgment&hl=en&as_sdt=4,16

  • Like 1
Link to comment
Share on other sites

@Dr Crandall

 

Here's your rules.  As Harry said, you have to send a notice of intent to file for a default.   Considering they've already filed their answer, I don't know that a judge would grant a default judgment.

 

Rule 1.972 Procedure for entry of default.

1.972(2)  Application.  Requests for entry of default under rule 1.972(1) shall be by written application to the clerk of the court in which the matter is pending.  No default shall be entered unless the application contains a certification that written notice of intention to file the written application for default was given after the default occurred and at least ten days prior to the filing of the written application for default.  A copy of the notice shall be attached to the written application for default.   

1.972(3) Notice

a.  To the party.  A copy of the notice of intent to file written application for default shall be sent by ordinary mail to the last known address of the party claimed to be in default.

Link to comment
Share on other sites

Three days late will not be a big deal to the Judge. Just move on with the case and attack their stnaning to sue and their ownership of the debt. I they cant prove they own it they have no standing. Is this an OC or a jdb?

JDB.  Asset Acceptance LLC.  Thanks for the input.  It's just that the Judge went a month over on my motion according to the RCP, the Plaintiff sent discovery request while I was waiting for a

 

decision to my pre-answer motion and the plaintiff has not sent me a copy of anything they filed with the court, along with their delay in answering my counterclaims.  I thought this would look good

 

on appeal if it comes down to that.  I mean, after all, I've been following the rules and I'm the inexperienced Pro se!  lol

Link to comment
Share on other sites

Even if it was OK to file for default, since they did answer (albeit late) I would not bother. You would have a far better chance of irritating a judge then you would winning the default judgment.

 

Even if it was OK to file for default, since they did answer (albeit late) I would not bother. You would have a far better chance of irritating a judge then you would winning the default judgment.

I was looking at it being an advantage if this goes to appeal.  The rules are there for a reason, right!  I will take the weekend to decide what I will do.  Thanks for the input.

Link to comment
Share on other sites

What you have there reads more like a motion for default judgment (you're alleging a cause of action and asking for damages, not just a dismissal). I don't know Iowa rules specifically, but in general, you have to file an application for default and serve that on the other party. This usually gives them another few days to then file an answer. Also, courts don't like issuing default judgments when a response has been filled and they usually set them aside on motion from the answering party when an answer is untimely anyway.

Basically, since they answered (before you even got your application in, no less), I'd let this one go.

Edit: here's a good Iowa case to illustrate my point.

"Because trial on the merits is favored, a liberal approach is to be taken in granting relief from defaults."

http://scholar.google.com/scholar_case?case=16811099361324028412&q=default+judgment&hl=en&as_sdt=4,16

Good points!  It's just that the plaintiff has messed up 3 times on RCP and like I posted below, I'm the inexperienced Pro Se who is following the rules at least thus far...  

  • Like 1
Link to comment
Share on other sites

We understand your position of being the inexperienced party in the situation, trust us! However, most of us have been in some sort of position where the 'professional' party screwed up and the judge didn't care one single bit.

We also have experienced times when the judges give incredible wiggle room to the plaintiff while chopping off any toe we have a tiny bit out of line. As an example, in my jurisdiction, if the defendant shows up to the CMC and the plaintiff does not, no big deal! They can come to the next hearing and use the excuse Cap1's attorney did...we didn't know we had a hearing scheduled your honor! If I didn't show up? I would have lost.

In this situation, you'll only make the judge mad. And having a judge even more on your opponent's side is not a good move.

Here, the judges always act like who do I think I am?! I'm just a lowly citizen who can't be smart enough to know the rules. Never forget, judges are lawyers, and they stick to their own. They don't call it the good ol' boy club for no reason.

  • Like 1
Link to comment
Share on other sites

We understand your position of being the inexperienced party in the situation, trust us! However, most of us have been in some sort of position where the 'professional' party screwed up and the judge didn't care one single bit.

We also have experienced times when the judges give incredible wiggle room to the plaintiff while chopping off any toe we have a tiny bit out of line. As an example, in my jurisdiction, if the defendant shows up to the CMC and the plaintiff does not, no big deal! They can come to the next hearing and use the excuse Cap1's attorney did...we didn't know we had a hearing scheduled your honor! If I didn't show up? I would have lost.

In this situation, you'll only make the judge mad. And having a judge even more on your opponent's side is not a good move.

Here, the judges always act like who do I think I am?! I'm just a lowly citizen who can't be smart enough to know the rules. Never forget, judges are lawyers, and they stick to their own. They don't call it the good ol' boy club for no reason.

I'm always for the Underdog, always have been, always will be...I've decided to not go through the default motion and include it with the other procedural errors in the MSJ or

 

opposition to MSJ, where it might be in a better forum to at least get it on record somewhere in case of appeal.  Thanks for your input on this!

Link to comment
Share on other sites

BV80,

 

  Plaintiff filed an answer to my counterclaim today and so it was 3 days late.  I am going to still file a default judgment but as a defendant, there aren't many examples in court records 

 

to use as a template and the court didn't have a standard one.  You have helped me with Iowa stuff today and in the past and I was wondering if you had any ideas on how I can find 

 

one to customize over to situation.  Thanks a bunch for your help in the past and if you have any arrows in your quiver send one my way...lol 

The court will reject the filing of default now but press to file it. late is default every time and they have done the same to debtors so they really cannot change their position on default matters in the court. one day late is a default they must file a motion to vacate. if you press the issue you will get your default judgement.

Link to comment
Share on other sites

We understand your position of being the inexperienced party in the situation, trust us! However, most of us have been in some sort of position where the 'professional' party screwed up and the judge didn't care one single bit.

We also have experienced times when the judges give incredible wiggle room to the plaintiff while chopping off any toe we have a tiny bit out of line. As an example, in my jurisdiction, if the defendant shows up to the CMC and the plaintiff does not, no big deal! They can come to the next hearing and use the excuse Cap1's attorney did...we didn't know we had a hearing scheduled your honor! If I didn't show up? I would have lost.

In this situation, you'll only make the judge mad. And having a judge even more on your opponent's side is not a good move.

Here, the judges always act like who do I think I am?! I'm just a lowly citizen who can't be smart enough to know the rules. Never forget, judges are lawyers, and they stick to their own. They don't call it the good ol' boy club for no reason.

I believe file the default anyway. The clerks have the ball when it comes to default and the judge will not see it even. If you make it look nice and legal they will stamp it and you can get your judgment. 3 days late is three days late, and if you do nothing you waive the issue with it. So I disagree about not filing the default, at a minimum it will be leverage for voluntary dismissal WITH prejudice.

  • Like 1
Link to comment
Share on other sites

I was looking at it being an advantage if this goes to appeal.  The rules are there for a reason, right!  I will take the weekend to decide what I will do.  Thanks for the input.

I would still mention this in trial briefs, motions, etc. (hopefully you won't need it for appeal), use everything against them. It's just not a smoking gun.

Link to comment
Share on other sites

Even if it was OK to file for default, since they did answer (albeit late) I would not bother. You would have a far better chance of irritating a judge then you would winning the default judgment.

If similarly situated, I have no idea if I would file for a default judgment. I will say, that in litigation, the last thing I am concerned about is letting the possibility of irritating a trial court judge stand in the way of enforcing the law, facts, and procedures to my advantage. Once my name appears anywhere on a caption it becomes my case (whether or not I have my own counsel). Opposing, opposing's attorney and the judge are along for the ride. A trial court judge is basically a referee. If I document, in the trial court record, an error by that referee then the referee above that trial court judge will likely correct their error.

 

Three things I have weighed in the past when an opportunity to move the court (with a slim chance of ultimately prevailing on the motion) became available to me: 1.) my available time and resources in the context of my next motion, pleading, or response; 2.) any insights to be gained from opposition's arguments as they are forced to defend my motion; 3.) do I need this motion to be in the trial court record for any possible appeal.

 

Managing ones resources is always critical. I don't want to be missing a deadline, especially when I have been trying to enforce missed deadlines by opposing.  That said, assuming a clerk can & does issue a default (based on a 3 day late filing) then when/if a judge grants oppossing's (likely) motion to vacate, it would seem an appealable abuse of discretion for the same judge to deny the same "opportunity" for the OP. Circumstances/RCPs certainly vary and I would not want to abuse or rely solely on that argument but I would have no compunction about going there if I needed to.

 

I believe file the default anyway. The clerks have the ball when it comes to default and the judge will not see it even. If you make it look nice and legal they will stamp it and you can get your judgment. 3 days late is three days late, and if you do nothing you waive the issue with it. So I disagree about not filing the default, at a minimum it will be leverage for voluntary dismissal WITH prejudice.

I xxheartxxleverage. :-)

 

Not a big fan of whining. It is unclear to me how the missed deadline (or stumbling around the RCPs) comes in to play in an appeal brief. Perhaps they could evidence an overall prejudicial pattern of the trial court judge. To be honest that is not something I am excited to hang my hat on. I view the purpose of an appeal brief as being to argue for a reversal of a trial court judge's error(s) and/or abuse of discretion. If I have failed to move the court for a particular issue I would believe the appeal panel would deem that particular issue waived or perhaps more accurately not be able to "see" that issue as it doesn't exist in the trial court record. I am still not promoting filing or not filing for a default. That is a decision that only the OP can properly make IMHO.

 

I always want to prosecute/document my trial court case for the appeal court. The trial judge can follow the law or have it explained to them on appeal. Which one occurs is up to the trial court judge. It is not within my pay grade to make them do their job.

Link to comment
Share on other sites

@Dr Crandall

 

Just a thought here:  You said that they were 3 days late filing their answer to your counterclaim.  In calculating the 20-day response period, did you include the day you mailed your counterclaim, or did you start counting the 20 days from the day they received the counterclaim?

  • Like 1
Link to comment
Share on other sites

@Dr Crandall

 

Just a thought here:  You said that they were 3 days late filing their answer to your counterclaim.  In calculating the 20-day response period, did you include the day you mailed your counterclaim, or did you start counting the 20 days from the day they received the counterclaim?

I mailed it cmrr on 10/15 and they received 10/16.  They mailed it 11/7 and I saw it on the online court docket that it was filed 11/8 and I went to get copies at the courthouse.  I

 

have not ever received any copies from them of anything that they filed at the courthouse as I have always went there and paid for my own copies.  They also sent me their

 

discovery request before I even filed an answer as I did a pre-answer motion for a more specific statement and was waiting for the judge to rule, in which a replacement judge

 

denied my motion.  I was able to get their discovery back to them within their 30 day demand and sent out my own discovery the next day.

 

I have not received a Dunning letter for 30 day validation which some have said they don't have to send debtor but the Iowa REC seems to contradict that. 

 

They also say they mailed the notice of right to cure to my residence but I have never received mail at my residence as it's out in the country as I've had a PO Box for 12 years. 

 

So I am as a Pro se defendant following the RCP better than them. 

Link to comment
Share on other sites

...

So I am as a Pro se defendant following the RCP better than them. 

SOP for me. If the trial judge did not carry water for the opposing bar member I would be shocked.

 

All I can do is...

Make a record for appeal.

Create leverage for myself.

Either the judge or opposing folds or we end up in an appeal.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.