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 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.

 

It doesn't work that way. You have to follow the court rules for serving those documents.  You can't just make a grand stand and do it at pre-trial because you want to.

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I guess I knew that but you can't blame a guy for dreaming. I'm just getting so tired of this Lawyer being a pain in the butt.  He knows it's ID theft, he found that out the last time is tried to sue me.  I'm sure the Judge knows what's going on too.  This Outhouse Lawyer is just trying to get a default judgment.

 

The pre-trial is set for the middle of July. 

 

Do I get to voice my opinion at this pre-trial or do I just get to listen to the Judge about the instructions?

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If you are convinced this lawyer is pursuing a case for an account he knows you are not legally responsible for then get a consumer lawyer involved with a counter claim for violating the FCDPA.  While you could do it pro-se they tend to sit up and take notice more if a colleague is up against them.

 

Unfortunately in court you don't really get to voice your opinion at all.  Pre-trial is about seeing if the parties can either settle or setting a trial date and nothing more. The one thing I would bring to the court's attention is that opposing counsel is aware from the case number xx-xxxxxx that was decided against them that this involved ID theft and yet they continue to pursue me in violation of the collection laws.  At this time counsel is being consulted for violations of the FCDPA and other claims against counsel and their client.  

 

They might just back down.

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I think these lawyers don't communicate with one another, it's an office of more than 12 asses, in the last case I received letters from different asses each time, when the case was dismissed, I received 6 letters from 6 different asses telling me that the case had been dismissed.  asses = associates. I do not believe any of them know that the other is doing at any time. 

 

This is why I am losing patience with them.  I have been reviewing court dockets across the state and have found that Midland Funding, LVNV, Portfolio Recovery and a few other JDBs have filed and default won over 3 million dollars in suits across the state.  This is wrong and someone should put a stop to it.  I don't just want to win  this case, I want to be able to go after them somehow.  The FCDPA was a good start but $1000 is peanuts to these people.  $10,000 per item, not individual cases, should be awarded to teach these JDBs some sort of a lesson.

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I'm confused as to why a valid SOL defense doesn't end it all.  If you have that, you don't need anything else.  Bring that up in pre-trial.

 

I agree the court will care nothing about your loss of time.  And an attorney will be reluctant to "take over."  Though I know one in my area who does it often, mostly on appeal.  For most credit cases, the cost of counsel will exceed the debt.

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I am off to my Pre-trial, the Attorney's collection agency called my wife yesterday afternoon, why? I have no idea. I returned their call as they did not leave a message with her.  I reminded them they had a C&D letter that they signed for. 

My wife suggested that they were only fishing to find out if I planned on being at the Pre-trial today.  I probably should not have called them back.

 

I plan on bringing up the SOL, their Lack of Standing and the fact they have produced no evidence in regards to this alleged account.

 

I'll report back later what the out come is.

 

Thank you all for your suggestions and support.

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Pre-trial went as expected. I have 21 days to modify my response, 60 days for rogs, docs and admits.  The "stand-in" lawyer remembered me from before and even he is wondering what is going on with this lawsuit.

 

Counter suit is still alive.  I don't know if it will go anywhere but I'll be trying.

 

I'm going to amend the counter suit to include the $700 I lost today by having to refuse work in order to be at this Pre-trial.

 

With respects to the phone call received by the Attorney's Collection department last night, is this the FDCPA section I should quote when filing my complaint?  And yes a Cease & Desist letter was mailed in Jan 2014 in regards to this debt.

§ 805.  Communication in connection with debt collection   [15 USC 1692c]

© CEASING COMMUNICATION.  If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except --

Can I somehow include this in my counter-claim? 

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On another note at the Pre-trial, the Attorney was there for another case against a 70 yo woman that didn't have a clue what was going on.  She had 2 daughters with her that they didn't let go into the judge's chamber with her.  The sleazoid atty made some sort of under the table deal with her even though she probably didn't owe the debt.  I couldn't get to her before she went in.  This crap really pisses me off.

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@Lostboy38

 

With respects to the phone call received by the Attorney's Collection department last night, is this the FDCPA section I should quote when filing my complaint?  And yes a Cease & Desist letter was mailed in Jan 2014 in regards to this debt.

§ 805.  Communication in connection with debt collection   [15 USC 1692c]

© CEASING COMMUNICATION.  If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except --

Can I somehow include this in my counter-claim? 

 

 

No.  Attorneys are allowed to communicate with each other during a lawsuit.  By representing yourself, you're acting as your own attorney.

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Ok, I guess I'll let that one slide.  I'm looking for some good Interrogatories to ask and admissions too.  I'm finding a few but could use some suggestions, if available.

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I'm going to amend the counter suit to include the $700 I lost today by having to refuse work in order to be at this Pre-trial.

 

Your lost wages are not allowed in this instance either.  When you are sued missing time from work is the consequence for defending it.  Lost wages are not compensated under FCDPA violations either as part of your counter suit.  There is a maximum $1000 statutory damages.  

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I know that but what if they fail to show up for trial, can it be awarded in that case?  If I didn't show up, they would win everything, so it goes to reason that if they didn't show, shouldn't I win?  Or is this another instance of "They can but I can't"?

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I've spent hours trying to find the Ruling about Business Records as Hearsay ruling but can't find it. 

 

I know I read someplace that the courts ruled that business records from one place can't be admitted without someone to testify about them.  I just can't find the case law on it.  Please help someone.

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I know that but what if they fail to show up for trial, can it be awarded in that case?  If I didn't show up, they would win everything, so it goes to reason that if they didn't show, shouldn't I win?  Or is this another instance of "They can but I can't"?

 

It is an instance where the money you are claiming is not compensable by the courts for this type of case.  Yes, it stinks that they can no-show and you lose your pay for the day but that is how it works.  You win by not having a judgment against you.  It has nothing to do with your paycheck other than they won't be garnishing it.  What you can do is ask the court to sanction them.  You won't get the fine the court will but at least it costs the firm money.

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BTW: I'm mailing out all my requests today, the pre-trial was yesterday and I want all the time I can get to Compel discovery and make them spend more money trying to collect this Zombie debt.

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@Lostboy38

 

Just a couple of FYIs.

 

1.  A debt is a "zombie debt" if it's outside the SOL.

 

2.  You only compel discovery if they don't respond to your requests or if their responses are inadequate.  Even then, you may have to send a "meet and confer" letter before could file a motion to compel.

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I have looked up the Hearsay stuff and what they have is completely hearsay.

 

I have requested in my rogs how the plaintiff calculated the SOL has or has not been pasted.

 

I am going to resubmit my response to the Summons & Complaint, dropping the lost earnings but I would like to include something about the Sanctions that the court could impose on the plaintiff for a frivolous suit.  Any suggestions on how I should proceed with that?

 

I would love to be able to get the Judge to stick it to the Attorney and the JDB by imposing some sort of "massive" sanction on them.  Someone needs to send a message to the JDBs and the Outhouse Lawyers that enough is enough.  Had they even research a little they would have found out this particular suit they filed is on an Zombie Debt, that the debt is actually from ID theft and they have already had to withdraw a suit against me before for these reasons.

 

I'm tired of this happening to good people, the poor 70+yo woman that they scared into agreeing with them Wed made me want to puke.

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Any sanction wouldn't be a "massive" sanction.  Sanctions are not that common, especially not  massive ones.  I wouldn't look forward to that candy.

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I've been researching third party communications about a debt and found,

15 U.S. Code § 1692c - Communication in connection with debt collection: (B) Communication with third parties Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post-judgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

When the process server handed over the summons & complaint to my spouse, walked back to his car, retrieved a business card and walked back to my spouse, (leaving my spouse plenty of time to read the summons & complaint), then returning to my spouse asking for the paperwork back because he may have made a mistake giving it to her.  Isn't this a violation of this code?  Can I include some sort of charge against the Plaintiff for allowing this to happen when I refile my counter claim?

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I was hoping the Process Server was considered an employee of the Law Firm when they hired him to server the papers.  Guess I'll keep looking.

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When the process server handed over the summons & complaint to my spouse, walked back to his car, retrieved a business card and walked back to my spouse, (leaving my spouse plenty of time to read the summons & complaint), then returning to my spouse asking for the paperwork back because he may have made a mistake giving it to her.  Isn't this a violation of this code?  Can I include some sort of charge against the Plaintiff for allowing this to happen when I refile my counter claim?

 

No, and it is more technical than they are not an employee of the JDB.  The process server is NOT attempting to collect the debt.  They are serving papers issued by the court notifying you that you have been sued.  Court cases are public record and the rules of service for your state (and most) allow for serving ANY person over a defined age (usually 16-18) at the place of residence with the papers and it meets the requirements of personal service.  The law will also assume that under spousal privilege your spouse can and should know about a lawsuit.  

 

Even if he accidentally handed her someone else's summons it isn't a violation because court records are public.  You could try this in your counter claim but would fail miserably.

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Lucky process server, he's not in trouble. :( 

 

On another note, I sent out my requests to the Plaintiff's Lawyer CRRR, but I never received the little green card back that they received the letter.  I went on line and tracked the delivery, I went to the post office and had them run me a print off of the persons signature on the card.  This will hold up in court if I have to do a Motion to Compel?

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