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Unifund CCR, LLC and Daniel N Gordon PC


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Hello: 

 

New to the board. I was sued last Saturday 8th-2014 via certified mail by xxxxxx The amount they are coming after me is for $13,000.00. The suit states, " breach of contract". First of all, the Plaintiff is as follows:

 

 

 in the : State of Oregon,xxxx county

 

Unifund CCr, LLC assignee of Pilot Receivables Management LLC

vs 

Me.  

 

Original Creditor: Citibank n.a

 

 

I have already answered the complaint. In that answer I added 15 Affirmative Defense, and then ended my answer with a counter suit. Now, With  that I have already sent the following requests. 1- request for production-2- Requests for Admissions to be answered by plaintiff.

 

At this point it's  awaiting game for me to get my docs back, before I can move on to next step. I plan on getting my docs back then file a MOTION FOR SUMMARY JUDGMENT. I don't' want to file a motion to dismiss as they can always refile again. 

 

 

My question is as follows: 

 

If my motion of summary judgment gets denied, can I "amend" my counter claim and take it over 50,000 to get past the "mandatory arbitration" that is required in the state of Oregon?  

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I would have applied for arbitration in JAMS or AAA before filing the answer.  Even then they may make you go through ADR.

 

If you do go through ADR and lose you can get a Trial de novo (a do over in real court) but it will cost you $300 I believe.  Then you can file for arbitration if you wish or fight it out in court.

 

I will notify @Huey Pilot as he is from OR and has gone through this with DNG before and won.

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Ok, when I filed, the "rude' court people advised me of the following. 

 

All cases under $50,000 require "Mandatory arbitration". She told me there was nothing more that needed to be done on my end, but wait for them to send me notification via mail of my next step. I paid the fee of $250.00(or something like that) to file my answer. I just got sued last sat, I filed my answered on Monday, and sent my request for production and admission on Tuesday. I checked USPS website, and found that the answer's and request was received in their office at Eugene Oregon today.

 

My game plan is to ask for a motion of summary judgment, but I have to give them the 30 days to produces those docs back to me. I just want to be ahead of my game,and incase they deny my MSJ, can I up my counterclaim to like $100,000- pay the differences in the fee, and move this from the required arbitration.

 

I am new to all of this. I am comfortable with the forms, as I work for a law firm as a asst. Boy this board is full of great info. I couldn't have done most of all my forms without you guys. So, yes, I was a lurker before posting. 

 

Thanks, :)

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Please see my answer in full to the complaint. I was thinking about risking the amount from $10,000 to like $100,000- I dont' want to go through required arbitration

 

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR WASHINGTON COUNTY

UNIFUND CCR, LLC, assignee of pilot Receivables Management, LLC,

 

          

 

 

                         

 

 

 

.

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@

 

 

COUNTERCLAIM FOR FRAUD AND MISPRESENTATION

1.  Plaintiff knowingly, intentionally, maliciously, and fraudulently brought this action without legal authority or standing for the purpose of inducing defendant to pay money she does not owe to Plaintiff.

2.  Defendant has been forced to answer the purported Complaint to prevent entry of a default judgment and does not submit to the jurisdiction of this court, and defendant has suffered noneconomic damages including but not limited to severe emotional distress and large economic damages including but not limited to fees and costs.

3. That as a result of the foregoing, Defendant has been damaged in the amount of Ten Thousand ($10,000.00) Dollars, together with punitive damages, fees and costs.

 

 

 

You did not cite a law that they supposedly broke.  Where did you get the $10,000 figure?

 

 

COUNTERCLAIM FOR FRAUD AND MISPRESENTATION

3. That Plaintiff knowingly, intentionally, maliciously, and fraudulently induced defendant to respond to this improperly commenced action based upon Defendant’s misrepresentation in the summons that defendant was required to respond, when in fact defendant had no duty to respond because plaintiff had failed to take the necessary actions for the court to acquire jurisdiction over defendant.

 

 

What necessary actions did they fail to take?

 

 

 

III.

COUNTERCLAIM FOR FRAUD AND MISPRESENTATION

6. That upon information and belief, Plaintiff and/or its attorneys, agents, servants and/or employees, and/or Plaintiff’s alleged predecessor(s) interest and/or their attorneys, agents, servants and/or employees, repeatedly, knowingly, intentionally, maliciously and fraudulently reported false, negative information on defendants credit report in violation of the federal fair credit reporting Act causing defendant to suffer damages.

7. That as a result of the foregoing, Defendant respectfully requests that this court award the greater of Ten Thousand ($10,000.00) Dollars or $1,000 for each violation of the Fair Credit Reporting Act or defendant’s actual damages including but not limited to damages related to emotional distress and monetary losses, together with punitive damages, attorneys’ fees and costs.

 

 

 

Are they reporting on your credit report?  If so, have you disputed their entry with the credit reporting agencies?

 

 

 

IV.

COUNTERCLAIM FOR FRAUD AND MISPRESENTATION

8.  That as previously set fourth defendant has knowingly, intentionally and maliciously committed numerous frauds and attempted frauds in the course of attempting to collect this alleged debt, all of which constitutes crimes under federal, state and/or local laws.

9. Crimes committed by a debt collector in the course of attempting to collect a debt are violations of the Federal Fair Debt Collections Practices Act.

10. That as a result of the foregoing, defendant seeks damages in the amount of Ten Thousand ($10,000.00) Dollars and/or statutory or actual damages and other damages as provided in the Federal Fair Debt Collection Practices Act, including but not limited to punitive damages, fees and costs.

 

 

 

The statutory damages for FDCPA violations is $1000 no matter how many violations are committed.  What violations did they commit in attempting to collect the debt?

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You have already damaged your position because MOST of those affirmative defenses are going to be denied by the court.  The second reason is your #10 affirmative defense essentially admits the debt is yours.  If was not your account you would not know that the financial information is right or wrong.

 

The counter claim is really poorly done and you have not stated clear claims or any supporting case law for your claims.  

 

While you believe you are costing them money you are not.  What ever law firm that sued you on their behalf has an annual retainer and you are but one of the accounts they charge against it.  You would do far better to amend that defense to simply proof of assignment.  There is a second JDB in between Citi and Unifund and the longer the chain the harder it is to prove ownership.  By adding in all that other stuff cut and pasted from somewhere you push the court to simply deny all of it.  The throw everything at the wall and see what sticks defense is a BAD idea.

 

For example:  what they paid for the debt is irrelevant.  As an assignee they have all the rights, obligations, and duties of Citi.  They only have to prove ownership to the satisfaction of the court to collect on the entire amount you owed Citi.

 

Latches or estoppel won't work. If it is within the SOL they can sue.  Neither will unclean hands.  

 

If Citi violated the law that is Citi's problem  The one thing the assignee does NOT take on with the purchase is the assignor's law violations. 

 

Filing baseless counter claims could also find you paying their attorney fees for bad faith and harassment.  It has happened.  

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I hate to say this, but you have really screwed yourself.

 

All but 1 of the affirmative defenses will be stricken by the judge - and will all affirmative defenses, YOU have the burden of proof. This is why it's best to either assert no affirmative defenses or "Lack of Standing to Sue."

 

In order to claim fraud in most states, you have to prove predicate conditions - in AZ, one suing for fraud has to prove 9 predicate conditions... you have to plead with peculiarity the circumstances of the fraud. For most defendants, you have to have iron clad knowledge of what the JBD did prior to suit -something I doubt you have.

 

Also, if I were going to counter, I would wait until AFTER discovery. A lot of counterclaims are filed during or after discovery. 

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I really don't' feel that I am screwed,as in the State of Oregon, one can always amend their  answer. My game plan here is to keep this out of the hand of the arbitrator. 

 

I will go in this Monday to the court house and amend my complaint, as @clydesmomc recommend.

 

Can someone tell me when I "amend" my complaint how do I go about doing that? I have my original answer, do I change that part to amended complaint, then serve that upon Daniel Gordon Pc? Can they object to my "amended answer"? It's was last Monday that I filed the original answer. 

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@

 

Laches means that the plaintiff waited too long to file and that the delay prejudiced you in some way.

 

    "In order to prevail on [a] defense of laches, [a] defendant [generally] must * * * establish the following three elements: (1)[the] plaintiffs delayed asserting their claim for an unreasonable length of time, (2) with full knowledge of all relevant facts (and laches does not start to run until such knowledge is shown to exist), (3) resulting in such substantial prejudice to [the] defendant that it would be inequitable for the court to grant relief." Mattson v. Commercial Credit Business Loans, 301 Or. 407, 419, 723 P.2d 996 (1986).

 

Did you open the account for which they're suing?

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  • Plaintiff’s Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of of the purported assignment or evidence of valuable consideration; Plaintiff’s Complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide
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@

 

A credit card statement is definitely sufficient validation. 

 

Plaintiff’s Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of of the purported assignment or evidence of valuable consideration; Plaintiff’s Complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide

 

 

I suppose you could include that, but what you really want to claim is "lack of standing".  In order to file suit, a plaintiff must show that they've been injured and are owed compensation for that injury.  A JDB would have to prove ownership of the account in order to have standing to sue.  If they can't prove ownership, they can't prove that they've been injured.  No ownership means no injury and no standing to sue.

 

Regarding your counterclaims, I guess you can claim any amount you want, but the FDCPA, for instance, only allows up to $1000 in statutory damages.  Any other damages would be considered emotional or punitive. 

 

You said they're reporting on your CR.  Is the information in the entry correct?  You have to prove your counterclaims.

 

Check your arbitration rules.  In some courts, the decision of the arbitrator is not always final unless both parties agree.  If it's not agreed to, the case may be able to go back to the court.

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Huey Pilot has gone though all this but has not visited the board in a few weeks.  It would be a good idea to search out his posts and read them all.  Oregon mandatory ADR system is much different than most of the country uses.

 

You could file for Arbitration right away and then Motion to Compel and hope the judge does not send you to ADR first.

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@, I think you're on the right track from a strategic point of view. I was in a similar battle, and while the Judge struck 60% of my affirmative defenses, she allowed me to amend those remaining further. I think I had 6 left to work with.  It was enough to win the case. The Plaintiff knew I wasn't going down without a fight, and that the Affirmative Defenses I was left with I could ultimately prove. You've taken this one extra healthy step than I did, which is you countersued. In addition to a possible FDCPA violation, you will want to examine Fair Credit Reporting Act violations for your counterclaim.

 

Before Amending your complaint, you may have to ask the Court's permission. Familiarize yourself with your state's rules of procedure before you Amend your Answer or counterclaim. Eventually you'll have to prove what you claim, so I suggest you don't take the approach that "they made you answer their bs lawsuit, so I'll make them answer my bs lawsuit." If they improperly damaged your credit standing, its not bs (FCRA). If they misrepresented the debt in a collection attempt, its not bs (FDCPA). Drill down the facts so if it goes the distance, you can prove what you claim. From a strategic point of view, if you are perceived to have valid defense and valid claim by the other side, they may dismiss or try to settle.

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@Determined1

 

If one has a valid counterclaim, definitely use it.  An invalid counterclaim may work on a JDB who's only looking for a default judgment.  However, if the JDB or its attorney is determined to follow through, an invalid counterclaim does nothing.  A frivolous counterclaim might even be worse.  Courts do not like frivolous claims.

 

One needs to make sure his counterclaim(s) is valid and that it can be proven.

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" A frivolous counterclaim might even be worse.  Courts do not like frivolous claims."

 

Exactly, thus their suit is "frivolous:"!  I am going to prove that their case is frivolous, and I will get it thrown out. That will prove my counterclaim. Two can play that game. Just like I have to answer to their suit, they will have to answer to mine. 

 

This is my game plan against them. 
 

File my answer- done

start my "discovery- done. 

file for a MSJ, and get the case dropped to the point they can't refile this claim. If my MSJ is rejected, I want rise my counterclaim to over $100,000.00 forcing the courts hand to make the judge listen to case, vs doing the mandatory arbitration.  

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Please help. I amended my complaint, as I am within  my timeframe. Please see this and tell me if this works better.  Please help, as I need to amend before they respond to my counterclaim. As they haven't done that yet, I can just AMEND, without filing for a "leave". 

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There is no way to offer useful feedback on your answer unless you post a copy of the complaint, or re-draft it here. Make sure you remove all identifying info. Where in your rules of procedure posted does it say you can just Amend your Answer without leave from the court? 

 

A suggestion for you. Take some time to research cases filed by the lawyer suing you, and the same Plaintiff, in your county court. You may be able to do this through your Clerk of the Court's website, or at the courthouse. Have they filed 10 of these cases, 100?  1000? Then, rule out those where default judgments were obtained because the party did not answer or defend. Look for a pattern in the cases that were defended. Did they settle, dismiss, or go to trial? Try to see if you can locate a pattern by the Plaintiff, and the attorney, in similar debt collection cases. It's a way of gaining some insight into how the Plaintiff will act in your case.

 

In addition, look for the cases where a lawyer filed an answer, defense, or possible counterclaim. Carefully review these, to see what worked for others in their defense in your county. If you've found a similar set of circumstances before the same Judge, you'll have an indication on how they rule on similar circumstances. You can even "borrow" an attorney's language for your Answer and/or counterclaim as long as you edit it to fit your specific circumstances. Also, Google "Unifund Class Action." The cases are many - look for a case or two where FDCPA and FCRA were at issue. You can cite them in both your defense and/or counterclaim, attaching a copy of those complaints to support your position.

 

But first things first. Double check your rules of procedure that you can amend without leave of the court. I think you'll also have to re-plead your counterclaim with proper causes of action and many more specifics. I think your instincts are on the right track, but you need to get the language in a form the court will recognize, and submitted within your state's rules.

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Hi Determined1:

 

Thank you so much for taking the time to reply. It's funny you advised me that above, as I already called in sick tomorrow to visit my courthouse. I plan on spending the whole day there. :) 

 

Yesterday I called in to an attorney and was told I just to need amend. I asked him if I can have the rules to that, this is what he sent me. 

 

ENDED AND SUPPLEMENTAL PLEADINGS

RULE 23

 

A Amendments. A pleading may be amended by a party once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Whenever an amended pleading is filed, it shall be served upon all parties who are not in default, but as to all parties who are in default or against whom a default previously has been entered, judgment may be rendered in accordance with the prayer of the original pleading served upon them; and neither the amended pleading nor the process thereon need be served upon such parties in default unless the amended pleading asks for additional relief against the parties in default.

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Okay, that's great - looks like you can amend if you do it quickly. When did you file your Answer and send a copy to the Plaintiff's attorney? Please post a copy (or re-draft) of the complaint so there is some context here for your Answer and Affirmative Defenses. Attach or note any evidence they may have attached to the complaint.

 

I suggest you edit your original post to remove the attorney's name and leave the attorney's name out of any further post. No need to have them following your posts ;-)

 

Glad to hear you made contact with an attorney. A consultation will be very helpful, and perhaps you'll decide to retain one. In the meantime, have some "fun" with the research at the courthouse. I was amazed in my case to find 100's of cases per month by the same attorney and the same Plaintiff, and an obvious pattern to how they handled those who fought them. The few hours I spent at the courthouse gave me a successful strategy going forward. Another issue for you to consider - Pilot Receivables Management is a debt buyer, and it appears they work often with Citibank and Unifund. There should be a great deal of information out there analogous to your case for you to use. 

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Okay.. Thanks, I am trying hard to amend before they answer. I filed my original answer Last Monday. Checked USPS. they got it on Friday. So, I am thinking they are going to take their time to answer, as this is a attry that files suits like crazy. But I  am working like they are in the process of answering. If they answer, then I will have to request leave by motion. 

 

This is their complaint. Can't upload, but will type of. 

 

Unifund CCR vs

Me. 

 

Breach of contract. 

 

1. Plaintiff is duly registered collection agency under ORS Chapter 697. A copy of the registration  is attached hereto.

 

2- Plaintiff has been assigned Defendants cittibank credit card account and contract and the rights to collect thereunder.

 

3-Defendant an individual residing in xxxx in Oregon, entered into a contract with Citibank for a credit card. The credit card was issued to Defendant under the account number 1234******

 

4-Citibank Supplied the credit Card to Defendant subject to certain terms and conditions regarding its uses, as set froth in the terms and conditons document supplied to Defendants at the time of opening the account.

 

5-Defendant thereafter used the credit card and became indebted to citibank na

 

6-Citibank N.A performed it obligation under the terms of the contract.

 

7-Defendant bread the contract by failing to make payments as agreed. As a results Defendants credit card account was charged off for delinquency on Nov 20,2009.

 

8-As a results of Defendants breach, Defendant is indebted to Plaintiffs in the sum of $13,800.01, which includes principal and interest plus interest at the state of statutory rat of 9% per annum from June 27,2013 in which is the date of purchase of Defendants credit card account and contract by Plaintiffs assignor, until paid. Plaintiff is also entitled to actual cost and disbursements, with interest thereon at the state statutory rate of 9% per annum from the date of judgment until paid.

 

9- Pursuant to the fair debt collections pratices 15 usc 1692, the court should authorize plaintiff and it's attorney to contact third person and entitles for the purpose of collecting its judgment entered in this court. The court should also authorize plaintiff and its attorneys to revel the existences of defendants debt to such their person and entitles. 

 

No docs were attached to the complaint, expect for their licenses to collect. which was in Paragraph 1. No contract, notes, or bill of sales. 

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Okay, great this helps. First my apology for referring to time at the courthouse as "fun." I know none of this is fun - poor choice of words. I would not rush out an Amended Answer / Counterclaim to file tomorrow, if the Plaintiff's attorney only received your original on Friday. Take some time to get this right. I know you were leaving off some details (properly) in what you stated, but the date they claim the account was charged off is important (its not fully identified in your post). Oregon has a 6 year statute of limitations, which would begin with the date of last alleged payment. 

 

I don't see items 1-3 in your answer to the complaint, so I assume that's where your answer is stated? Looking at your Affirmative Defenses first, I've made some notes where I think you may consider a change. Those without notation look good. 

 

SECOND AFFIRMATIVE DEFENSE

 

If you're going to rely on the statute of frauds, ultimately you'll need evidence to support it. Do you have it? Here's where some of the research of similar complaints and class actions may come in handy. Their failure to attach a copy of a contract, when suing for Breach of Contract may give rise to a separate Affirmative Defense (your #15). In Florida (my state) the rules of procedure clearly state a Plaintiff suing for breach must attach the contract they are claiming was breached. Perhaps Oregon rules of procedure has a similar rule to cite? 

 

 

SIXTH AFFIRMATIVE DEFENSE

 

I wouldn't plead this one. I think it leads to a slippery slope of arguing they didn't pay "adequate consideration" for a debt you are denying you owe.

If they plead Unjust Enrichment, I can see why you might go here, but they did not.

 

EIGHTH AFFIRMATIVE DEFENSE

 

You can use the FDCPA as a cause of action in your counterclaim, but not as an Affirmative Defense. Do you have any original collection notices from Unifund? That may be helpful in establishing an FDCPA counterclaim. Along with the section you posted, I think you may want to look into this one:

 

 807. False or misleading representations  [15 USC 1692e]

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(2) The false representation of --

(A) the character, amount, or legal status of any debt; or

 

NINTH AFFIRMATIVE DEFENSE

 

These are all valid affirmative defenses, but you have not stated how they apply to this complaint, or your defense.

 

 

 

TENTH AFFIRMATIVE DEFENSE

 

This is a powerful defense if correct. When was the date of charge off, and alleged date of last payment? 

 

FIFTEENTH AFFIRMATIVE DEFENSE

 

18. The Defendant did not receive a copy of the alleged credit card agreement from Plaintiff, the alleged original creditor, or anyone else.

 

I would add:  Further, the Plaintiff has failed to attach a copy of the purported contract that it claims was breached to its complaint.

 

19. That Defendant has never seen the alleged credit card agreement and therefore, could not have agreed to its provision(s).

20. That accordingly, Defendant could not have breached the provision of the alleged credit card agreement.

21. That since this action is for breach of the alleged credit card agreement; it should be dismissed with prejudices. (prejudice)

 

Regarding your counterclaim, did Unifund or Pilot report this to your credit bureau report? I think you referenced one of them did, but you want to document this thoroughly. If they did, but can't prove the debt they claim, you have FCRA claims.  I think your Counterclaim needs to be re-drafted. You can't just state a demand of $100,000 (or $10,000 per claim) and have it hold water. It will look to a Judge as if you pulled the number out of the air. Make them look like the party pulling an unsubstantiated stunt. If they damaged your credit without cause, you could have very significant claims.

 

Please keep in mind I'm not an attorney, but have had similar experiences in Florida (not Oregon). I believe you said you are an assistant in a law firm - any chance on having an attorney at your law office assisting you here?

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 Determined1 can I carry you in my back pocket? LOL

 

I  work in criminal not civil thus this is a new venture for me. I am embarrassed to ask my  employer for advice's, but if I am forced to I will have no choice in that matter. 

 

With that said. I will take your advice's to get this filing done correctly. I am taking the day off tomorrow, and will go through the civil cases filed by this law firm and compare it to mine.I think I have plenty of time. I will go through all the case laws and fix my counterclaim. 

 

Also, in Oregon, you don't need to attach any original or copy of contract to the suit.  I wish! I would have asked for dismissal right away. Also, i found out that they didn't serve me properly either. I only received a certify mail. In the state of Oregon, in the amount their suing for, I should have been personally served, or had a complaint mailed to me as well. Nope either of theses have happened.

 

BTW: This is kind of fun. I mean the learning part of it.  Thanks so much for all your feedback.  

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