Lostboy38

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

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Another new paragraph, "Tax Considerations.  This Agreement is a result of a "contested liability" that was disputed in good faith.  The parties expressly agree and acknowledge that this Agreement does not constitute the forgiveness of a debt.  The Released Parties make no representations regarding tax consequences, if any, pursuant to the Agreement. This paragraph has me stumped, does this mean they are going to try to send me a taxation notice at the end of the year?  I'm pretty sure they can't do this because no admission of debt owed has been agreed to.

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And here we go again with the attorney thing.  "Agreement Fully Read and Understood.  This Agreement has been carefully read by the undersigned and the contents are known and understood by the undersigned.  The recitals stated above are incorporated herein by reference.  Prior to execution of this Agreement by each party, the undersigned's attorneys reviewed the Agreement, and the undersigned acknowledge that they have executed this Agreement after independent investigation and without fraud, duress, or undue influence."   Are they trying to get me to sign another document that has me stating I have consulted or have an attorney?  I am one of the "undersigned" after all.

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Well, I guess filing the Motions lit a fire under their butts.  I received another offer from their attorney, it says it is the same as my counter offer but it is not, they've added a couple items in the agreement.  I don't want to sign it, there is still a paragraph of "Release of Unknown Claims.  This Agreement covers and includes all claims that Defendant has against the Released Parties (MF) up to and including the date of this Agreement, whether actually known or not, despite the fact that any applicable state and/or federal law may provide otherwise"  My thoughts on this is that I will not be able to pursue any legal action about this claim after signing this agreement.

 

Correct.  We drop our suit, you drop yours is what it says.  Was the offer for if you pay them money?  You might counter with you owe 00.00 and they dismiss with prejudice, in return you will drop yours and your right to future suits for violations reguarding this same account.  Otherwise, game on.

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And here we go again with the attorney thing.  "Agreement Fully Read and Understood.  This Agreement has been carefully read by the undersigned and the contents are known and understood by the undersigned.  The recitals stated above are incorporated herein by reference.  Prior to execution of this Agreement by each party, the undersigned's attorneys reviewed the Agreement, and the undersigned acknowledge that they have executed this Agreement after independent investigation and without fraud, duress, or undue influence."   Are they trying to get me to sign another document that has me stating I have consulted or have an attorney?  I am one of the "undersigned" after all.

You don't have to have an attorney, it covers them in the event you try to come back later and say "I didn't have an attorney, but now I do, and I am going to sue you anyway"   So if you sign without having an attorney review it, it works just like you have, and you wouldn't have a recourse.

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@shellieh98  Thanks, I did not think of that.  It does cover their butts.  No money is to exchange hands and the suit will be dropped with prejudice.  I know the right thing to do is sign the Agreement and be done with it, it is a clear victory for me and all the great people here on CIC but they must have some reason for wanting to settle this before trial. 

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What would the down side be if I continue fighting this suit?  Their claim is for less than $2k.  I believe I have a 90% chance of winning this in open court.  They have failed in answering Discovery, my Motions are to be heard on the 15th of next month.  The Judge is clearly agitated with the Plaintiff about the Motions.  I know they have no Standing, I truly believe the SOL is way past, and my Defense of Unclean Hands for Midland Funding and MCM on their affidavits and documents should be able to be supported because of all the suits being won against them for Robo-signing.

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The down side is you don't know what the judge will do. It is the same for them. They really don't want to take the chance they could end up owing you money given the amount they are suing you for. If the suit was for 10k they might take the risk.

The answer is are you willing to take the risk? You could be the one who ends up owing.

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@Lostboy38

 

You need to focus on what you can prove and what they haven't proven.  While lawsuits that have been won against Midland could be persuasive, they don't prove that the affidavits in the lawsuit against you were robo-signed.  Of course, you raise the issue and hopefully the judge will agree with you, but just know that the other lawsuits are not proof. 

 

As it stands, they haven't provided documentation of a payment made by you within the last 6 years, correct?    Did you ever check your bank records to see if you had made a payment in 2010 as is claimed on the Field Data sheet?

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@BV80

 

I really see this as being a great big headache and I would have to prove the affidavits were robo-signed by them and that it would be near impossible to do that, as I am only a truck driver and not a lawyer.

 

I have went through my bank records as far back as Jan 2009 (I have nothing before that time available to me) and found nothing being paid to the OC or anyone else on this debt.  I'm pretty positive that the SOL is past on this debt and I'm pretty sure that the Plaintiff's attorney knows this as well because of the wording in the Agreement.  It angers me to think that I could be letting them off the hook so easily but I should take it as a victory and sign the Agreement.

 

The Release of Unknown Claims has me a little nervous too, what if they file additional claims between the time I sign the Agreement and the time they file the agreement?  Can I add a hand written note under my signature that states something like, "Defendants signature on this agreement is only valid if Agreement is filed with the court within 5 days of the date of the signature."?

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@shellieh98

If I were to pursue this suit, isn't the most I would be losing is the initial amount claimed (<$2k) + attorney fees and a little interest?  It would almost with worth the risk if I were, as a Pro Se, to get a win against one of the bigger Outhouse law firms. 

 

Someone once mentioned that most good lawyers won't take on a case that someone has started in Pro Se, but what if that someone, in Pro Se, actually won at trial, would a lawyer be willing to pick up a defense to fight an appeal?

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@Lostboy38

 

Since your bank records show no payment made when they claim, if they decided to fight, they'd have to come up with proof that you did make that payment.   Did they claim in their complaint that the last payment was in 2010?

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No, no claim as to when the last payment was made until I asked for that information in my discoveries.  They pulled this information from the "Data Sheet" MCM supplied.

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@Lostboy38

 

If it were me, I'd speak to a consumer attorney ASAP.   A lawsuit is an attempt to collect a debt.  If Midland cannot prove that you made the payment, t's possible (note that I said "possible") that the date of last payment claimed on their data sheet could be a deceptive means to collect a debt. 

 

The 6th Circuit in Gionis v. Javitch, Block, and Rathbone, LLC ruled that false statements in an affidavit in a lawsuit can be an FDCPA violation.   Perhaps the date on the field data sheet provided in a lawsuit could be considered deceptive.  If that sheet was created by Midland and Midland has no proof of that date, you might have an added FDCPA claim along with their filing suit outside the SOL. 

 

Then, of course, you also have their response to your discovery request.

 

Talk to an attorney.  See if he thinks this is worth fighting.  If he doesn't, then you can settle.  If you settle, and you're concerned about the unknown claims language, you might think about requesting that the agreement specify that all known and unknown claims by the plaintiff are also released.

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Up Date:  I had their Settlement Offer looked at and signed it and returned it to their Attorney, this was on Sept 22, 2014, they received the letter a day or two later according to my CRRR, I think it has been long enough for them to have filed it but have heard nothing about it yet. 

 

My hearing on the two motions I filed is scheduled for the 15th of Oct, so I am continuing with the idea that the case is still on.  I have prepared for the hearing and am almost prepared for the trial.  I am only missing one month of my bank statements, I have the statement from the month they are claiming I made the last payment and two months after that date but I can't locate the month before that date.  I have a request into my bank asking for the prior month just to make sure nothing is listed there.

 

I am NOT going to drop my guard on this, until I have the Dismissal with Prejudice, that is signed and dated by the Judge and recorded by the Clerk in my hand I will continue to prepare for the trial on the 29th of October.

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See what suing these clowns does. They dismiss hoping you drop your counter-claims. Too bad for them!!

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