Recommended Posts

Did you live in FL at anytime during these 2 suits that were filed in FL?

 

 

If not, you might have an FDCPA case against the attorneys there..

Share this post


Link to post
Share on other sites

If @debtzapper 's suggestion of Skaar & Feagle does not come out to be affordable for you (last I talked to them, they charged half the amount of the debt to defend cases), I would suggest arbitration.  Discover MAY drop this claim for under $7.  I would say it is well worth a shot anyway.  If they don't, you can still at least drag out an arbitraiton case for over a year and perhaps during that time you would be able to scrape together enough to settle with them for a low amount.  Remember, even if they don't drop the case, arbitration is a key leverage to getting a much lower settlement too.

Share this post


Link to post
Share on other sites
27 minutes ago, Gardenlady said:

I wanted to know if asking them for a 1099-C in the the original amount would be something they would agree too.

If they have filed suit:  No.  A 1099-c doesn't get them anything as far as a collection.  Your being insolvent MIGHT make it happen but I would not get your hopes up.

17 minutes ago, debtzapper said:

 I think if you force them to arbitrate, they will eventually dismiss.  

No.  Discover has followed consumers into arbitration at great expense.  That tactic works with JDBs but Discover like AMEX will sometimes see it through despite the expense.

Share this post


Link to post
Share on other sites

@Gardenlady

Discover has been known to follow defendants into arbitration, but the fact that they are asking you to settle, shows they are not eager to jump into arbitration.  In any case, let us see what some of the experienced arbitration members have to say.

Share this post


Link to post
Share on other sites

I sent OP a PM, but for the benefit of anyone else looking for answers in a similar situation, I would strongly object to any changes in the arbitrator.

First, if the selection process is ongoing, the only rights the creditor has is to strike two of the arbitrators on the list just like the consumer has the right to do.  Anything else would be improper and against the rules.  If they attempt to influence or otherwise suggest a specific arbitrator during this process, I would object citing the rule number on the violation of the selection process.  If an arbitrator had already been chosen, then I would object based on the fact that they already had their right to strike two arbitrators just as the consumer did and the arbitrator was already selected in a fair manor and following the rules of JAMS.

If the creditor insists on continuing to whine about the arbitrator or attempting to influence the case manager on the selection process, I would request an immediate hearing on the issue.

The entire goal of arbitration is to get the other side to give up because you are being a stickler for the rules, objecting to everything they do that is not in the rules and causing more hearings and more expenses on their part.  They will only get to their breaking point if you continue to do this.  Once they get to their breaking point, they are more likely to settle for a mutual walk away.  This is always my goal going into any arbitration.

  • Like 3

Share this post


Link to post
Share on other sites
On 12/2/2015 at 2:36 PM, Gardenlady said:

They never served me and then they dismissed the case without prejudice. They sued me in Leon County, FL, never served me and this case was also dismissed in July 2015 without prejudice. Now I am being sued in GA.

Two cases, brought in Florida and both dismissed.

Fla. R. Civ. P. 1.420(a)(1). "... a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim."

Looks like in some folks' haste to shill for arbitration, you've overlooked the obvious. If in fact the case was twice dismissed in Florida, the Georgia case is res judicata and @Gardenlady has an FDCPA violation against Zakheim on top of it. Contrary to the misinformation posted about Georgia attorneys, there are any number of guys there who would've taken this case with no upfront money.  The cost of defending the state case would be considered actual damages in the FDCPA case. Nice job.

  • Like 2

Share this post


Link to post
Share on other sites

@nascar that's a good find. I wonder if the Plaintiff could use Florida Rule 1.070 as a defense since it sounds like the defendant was moving around. Might be a good idea for @Gardenlady to check the online case detail for the two Florida counties to see what exactly was filed.

(j) Summons; Time Limit.

If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. When a motion for leave to amend with the attached proposed amended complaint is filed, the 120 day period for service of amended complaints on the new party or parties shall begin upon the entry of an order granting leave to amend. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

Share this post


Link to post
Share on other sites
1 hour ago, nascar said:

Two cases, brought in Florida and both dismissed.

Fla. R. Civ. P. 1.420(a)(1). "... a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim."

Looks like in some folks' haste to shill for arbitration, you've overlooked the obvious. If in fact the case was twice dismissed in Florida, the Georgia case is res judicata and @Gardenlady has an FDCPA violation against Zakheim on top of it. Contrary to the misinformation posted about Georgia attorneys, there are any number of guys there who would've taken this case with no upfront money.  The cost of defending the state case would be considered actual damages in the FDCPA case. Nice job.

Except that she is being sued by Discover, an OC not covered under the FDCPA.  And even though I don't see anything suggesting any incorrect information about GA attorneys, but if you know them so well, you should know that it will be quite difficult to find one to sure just a law firm on a violation like this.

Nice job indeed.

Share this post


Link to post
Share on other sites

@nascar

This is from Nolan v. MIA Real Holdings, FL Court of Appeals, 4th Dist. (2016):

The two voluntary dismissals, taken by two different plaintiffs but involving the same note and the same breach, required that the second dismissal operate as an adjudication on the merits; if it wanted to pursue its claim for non-payment, MIA was required to refile a lawsuit against the homeowners alleging a new and separate breach by non-payment on the note. See Singleton v. Greymar Assocs., 882 So. 2d 1004, 1006-07 (Fla. 2004).

How does one allege a new and separate breach?

Anyway, this is what's really interesting about Nolan:

"It follows that here, MIA stands in the procedural shoes of Flagstar, the first plaintiff/assignor which took a voluntary dismissal."

According to that, if Discover were to sell the debt, a JDB who purchases it could not sue under the same exact claim.   If it did, the 2 dismissal rule would apply and the JDB would be out of luck.   The JDB would have to sue under a different breach or cause of action.

 

Share this post


Link to post
Share on other sites
On 3/20/2016 at 5:42 AM, fisthardcheese said:

The entire goal of arbitration is to get the other side to give up because you are being a stickler for the rules, objecting to everything they do that is not in the rules and causing more hearings and more expenses on their part.  They will only get to their breaking point if you continue to do this.  Once they get to their breaking point, they are more likely to settle for a mutual walk away.  This is always my goal going into any arbitration.

^^^^^ This is how you win in arbitration.  You will lose if you go along with what they want.  You need to stir the pot, and be difficult.  And the more hearings you ask for on a particular subject, the more it will cost them, not you.  

  • Like 1

Share this post


Link to post
Share on other sites
On 3/20/2016 at 2:23 PM, BV80 said:

@nascar

This is from Nolan v. MIA Real Holdings, FL Court of Appeals, 4th Dist. (2016):

The two voluntary dismissals, taken by two different plaintiffs but involving the same note and the same breach, required that the second dismissal operate as an adjudication on the merits; if it wanted to pursue its claim for non-payment, MIA was required to refile a lawsuit against the homeowners alleging a new and separate breach by non-payment on the note. See Singleton v. Greymar Assocs., 882 So. 2d 1004, 1006-07 (Fla. 2004).

How does one allege a new and separate breach?

Anyway, this is what's really interesting about Nolan:

"It follows that here, MIA stands in the procedural shoes of Flagstar, the first plaintiff/assignor which took a voluntary dismissal."

According to that, if Discover were to sell the debt, a JDB who purchases it could not sue under the same exact claim.   If it did, the 2 dismissal rule would apply and the JDB would be out of luck.   The JDB would have to sue under a different breach or cause of action.

 

In Op's case, they refiled again in a different state.  I think that renders this point moot because I don't think the FL court rules would matter much to a GA judge going by his own court's rules now.

Share this post


Link to post
Share on other sites
1 hour ago, fisthardcheese said:

In Op's case, they refiled again in a different state.  I think that renders this point moot because I don't think the FL court rules would matter much to a GA judge going by his own court's rules now.

Actually, I kinda think it would, even in Georgia.

By the Constitution of the United States, art. 4, § 1, "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L. Ed. 95 (1895).

 

 

 

  • Like 2

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.