Lostboy38

It's on again, being sued but this time I want to file a counterclaim with response. Can I?

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I'm being served again on another ID theft Credit Card by the same stupid Lawyer.  I won last time but they didn't learn anything and are now filing another Summons and Complaint on me.  I want to stick it to them this time by filing a counterclaim for lost wages and other costs that I couldn't get last time because I didn't know how to file it. 

 

This time, with your help, I hope to stick it to them.

 

Any suggestions/guidance would be appreciated.

 

I will be posting the specifics of the suit as I get them.

 

Thanks, Lostboy

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You could try calling the lawyer and saying " hey remember me? ". This is another stolen identity. Send them your police report. They file so many suits, they don't remember you from Adam, you might be able to make it go away before they file.

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I'm too late for that, they've already filed with the courts.

 

A little back ground is in order again.

 

1. Agreed to CC with Home Depot back in early 2006 to purchase an oven that was on sale and a discount if you use a HD CC.

2. Paid off HD CC with income tax return in Mar 2007. (To the best of my knowledge, I never used the HD CC again.)

3. Dec 2013, received letter from Law Office stating, "Enclosed please find verification of the debt in question.  If you should have any question, you may of course feel free to call."

    a. This letter is not signed by the Paralegal that wrote it.

    b. Enclosed with this letter.

        1. Home Depot Consumer Credit Card Application. (Signed by me. Dated 1/23/06.)

        2. Home Depot Statements from Feb. 2011 thru May 2011.

            a) No purchases, no payments recorded on any of the statements

            B) Interest, monthly fees are debited to each statement.

            c) Last balance due $1800+

4. I responded to this packet with a letter to the sender.

    a. This letter is in response to your correspondence of December 26, 2013.

        To the best of my knowledge and belief, this debt was paid in full in the first quarter of 2007 when I received my federal tax return. 

         I did not use the credit card after that time and never authorized anyone to use it.

         This is an attempt to correct your records; any information obtained shall be used for that purpose. Your cooperation in this matter is greatly appreciated. Please do not hesitate to contact the undersigned via the USPS at

         the address listed above should you have any questions or concerns.

     b. This is the P.S. I included with the letter.

         P.S.  Ms. Paralegal, you failed to sign the cover letter dated December 26, 2013 bringing into question the validity of your notice.  I assume that it is an over sight and you will provide me with a signed copy as soon as possible.

5. 6/24/14 Received phone call from spouse stating a processes server delivered a Summons & Complaint for me to her but then he returned and took back the Summons & Complaint after giving my spouse sufficient time to read it.

6. 6/24/14 Called process server at number provided to set time for delivery of Summons & Complaint.

 

This is where it's at now, just waiting for the server to arrive.

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Server delivered Summons and Complaint.  It says the usual stuff, 1 Defendant is indebted upon Open Account, 2 Performance has been completed, 3 Presently due and owing $1800+, 4 Plaintiff requests judgment of $1800+ plus atty fees. etc.

 

They included with the summons and complaint only 1 monthly billing statement from HD.  There is no Bill of Sale or any affidavit from anyone.  Am I missing something?  Are they trying to misrepresent that they are representing the OC and not the JDB?  This one is kind of confusing me.

 

Anyway, I have written up a response denying all their complaints and included some case law to boost my response.  I have created an affidavit as suggested by BMC100 and will get it notarized before filing it with my response.

 

I am still unsure of filing a Counter-Claim.  I have one written up and ready to file.  Should I do this or just let it slide?

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Basically this is what I have for the counter claim.

 

  1. That the Counter-Defendant herein has filed a Complaint against the Counter-Plaintiff, 14-0461-GC, on an alleged debt that the Counter-Defendant has no legal claim or ownership of the alleged account.
  2. That the Counter-Defendant has knowingly filed this complaint even after the six (6) year Michigan Statute of Limitations has expired on this alleged account.
  3. That the Counter-Defendant, through this un-actionable suit, has caused hardship and loss of earnings to the Counter-Plaintiff.  As of this date, approximately $450.00.
  4. Counter-Plaintiff requests judgment for $450.00, plus, any additional lost earning, costs, and any sundry costs allowable by statute or court rule.

This part has me a little iffy.  Any suggestions?

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@Lostboy38

 

Am I missing something?  Are they trying to misrepresent that they are representing the OC and not the JDB?

 

 

On the complaint, who is named as the plaintiff?

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@Lostboy38

 

They're not misrepresenting anything.  Midland is named as the plaintiff.  The reason for the HD cc statement is to attach some proof of the balance.  A debt buyer would not have their own credit card statement because they don't issue credit cards.

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@Lostboy38

 

Yep.

 

You need to speak to an attorney about a counterclaim.

 

If you were to file a lawsuit (complaint) against a JDB, you'd need to include exactly which law they violated and how it applies to them.  For instance, if you filed an FDCPA complaint, you'd have to allege that the JDB is a debt collector as defined by 1692a(6) of the FDCPA and that you are consumer as defined by 1692a(3) of the ACT.  Then you'd have to list the violations and the sections of the FDCPA for which each violation applies.

 

I don't know if the same applies to counterclaims or not.  You need to find out if you have to state certain specifics in a counterclaim.

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I was told to make sure I titled the counterclaim as COUNTERCLAIM TO CASE #.

 

I needed to list what my reason for the counterclaim was and any amount I have lost.  It was recommended that I leave the total amount requested open to adjustment.

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Who recommended? So you could counter sue for the fdcpa violation of suing on a time barred debt. but what I don't understand is if you paid it off in 2008, why do they have a copy of a statement from 2011? If you never used the card again, they would have closed the account after a year of inactivity. If you paid what you thought was paid in full in 2008, and they say you still owe a sum, they would have charged it off about 6 months after your last payment, then they would sell it.

The statements in 2011 are from Home Depot?

If you sue for a time barred debt, the burden of proof shifts to you. You should be sure you didn't make any other payments or charges since then.

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It was recommended by a lawyer, he suggested that I keep the amount open and adjustable for future costs.

 

I am actually issuing a counter claim for lost wages and defense costs.

 

"I" never used the account again, someone else used the account without my knowledge.  Yes the statements are from HD.

 

Did I mention that I put a fraud alert on my credit report and initiated an investigation into 7 items that I knew nothing about recorded on it.

4 of the 7 were quickly removed, 1 I had to request further verification and the other 2 are still under investigation.  One of the ones quickly removed was the HD account.

 

I have filed the counterclaim with my response.  My counterclaim is only for my losses caused by the filing of this suit, as far as the FDCPA violations go, I will leave that to an attorney.  I should be able to turn this over to an attorney after the pre-trial and trial, correct?  Or should I be doing that asap?

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According to my last credit report (before it was deleted) the HD claims a payment was made in 09/10, I am l searching through my bank records trying to locate any proof of these payments.

 

Unfortunately, this is a daunting task because of the age of this alleged account.  Up until last year I would "purge" my files every 3 years.  Now I know better, I'm keeping this crap for 10 years.

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I am actually issuing a counter claim for lost wages and defense costs.

 

You will not be allowed to claim lost wages.  It is not compensable time when it comes to lawsuits and preparing for court.

 

I have filed the counterclaim with my response.  My counterclaim is only for my losses caused by the filing of this suit, as far as the FDCPA violations go, I will leave that to an attorney.  I should be able to turn this over to an attorney after the pre-trial and trial, correct?  Or should I be doing that asap?

 

Most attorneys will not take a case over after a pro-se has filed let alone done pre-trial.  It is too time consuming and costly to fix the mess and have their law license on the line for the errors made by the pro-se as well.  You either hire a lawyer from the beginning or you go it alone.  I would not trust ANY lawyer that would take your case after you had filed it and started the trial process.  

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Citibank services the Home Depot credit card, that's why they are listed as the OC, and they then sold it to Midland who are suing you.

 

Did you file a police report when you discovered the fraudulent activities?  If you are absolutely certain the charges were fraudulent you may still be able to file a police report - but remember making a false statement on a police report is criminal.  That's why police reports are given substantial weight, and often required to clear ID Theft reporting lines.

 

Unfortunately the fact that you disputed the HD line with the CRAs and it was removed may not prove anything - Citibank makes a lot of mistakes, they may just not have validated the debt.  It's also possible their fraud dept. accepted your claim but a different department went ahead and sold the balance.  In discovery this may be something to request - "all records related to the CRA complaint and tradeline removal for fraud on or about <date>".

 

I believe the FTC also had an "affidavit of fraud" form which you could execute in front of a notary under penalty of perjury.

 

If you had already done either of these, you would have very strong evidence for your defense.  Doing them after you were sued is less convincing but still might be worth it.

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I filed a counterclaim mostly to open the eyes of the lawyer filing the suit, I have won against them before (with the help of this great web site), I want them to know they are not going to get a default judgment.  A judge advised I counterclaim for my losses including wages.

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I have attempted to file the police report several times but because the age of the ID theft is so old the police can't/won't make time to take the report, saying it's a waste of time.

 

 In discovery this may be something to request - "all records related to the CRA complaint and tradeline removal for fraud on or about <date>".

 

Excellent suggestion, I will certainly include this in my request.

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OMG!!!  As I'm typing here looking for assistance, I get a credit alert that something is going on with my credit report.  I have to call them and stop whatever is being attempted. 

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My pre-trial date is the 16th, should I create a MSD because all they sent me was a single monthly statement from may 2011?  That is all that was attached to the Summons and complaint.

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@Lostboy38

 

Check your rules about discovery.  They should inform you as to when you can send discovery.

 

Since discovery has not been done yet, a MTD might be premature.

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I want to have everything ready for the Pre-trial, I want to be able to get instructions from the Judge and then hand the Discoveries, Interrogatories and Admissions over to the Plaintiff's Lawyer while we're sitting at the Judge's desk.

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