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Stipulation of Discontinuance Question


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I live in NY.  I had a lawsuit filed by Forster & Garbus on behalf of Barclays Bank Delaware for $1527.  I had a trial date set for May 12th.  Mid-March I sent them a request for documents.  I had received all account statements previously.  Friday I received a Stipulation of Discontinuance.

It is hereby stipulated and agreed, by and between the undersigned, the plaintiff's attorney and the defendant pro se, that whereas no party hereto is an infant, incompetent person for whom a committee has been appointed or conservator, and no person not a party has an interest in the subject matter of the action, the above entitled action be, and the same hereby is discontinued, without costs to either party as against the other.

Release of Claims: Defendant releases and discharges Barclays Bank Delaware and its respective current and former predecessors, successors, parents, affiliates, subsidiaries, and all of the aforementioned's respective agents, employees, officers, directors, shareholders,  attorneys (Forster & Garbus, LLP), collection agents, credit reporting agencies and vendors ("the Releasees") from all claims of any kind (including and claims for damages, interest, fees, and/or attorney's fees) that he may have with respect to the Account, or any other matters between Defendant and Releasees, including without limitation, all claims that were asserted or could have been asserted in the Litigation as of the date of this Agreement.  Defendant further agrees that he will not file any claims, complaints, affidavits, arbitrations or proceedings with any regulatory or administrative agency with respect to the matters release in this Agreement against any of the aforementioned, and any such claims, complaints, affidavits, arbitrations or proceedings filed prior to the execution of this Agreement shall promptly be dismissed or withdrawn.  This Agreement is intended to resolve forever the entire disagreement between Defendant and Releasees.

 

I plan on bringing it to court on Thursday and signing there with the Lawyer. 

According to the wording, they should not be able to sue again correct?  I'm just looking for some feedback if this is the best course of action.  I don't want to continue on in court, I would rather this be done and closed.

 

Thanks!

 

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That seems way too broad when something like this court provided form dismisses the case with prejudice. https://www.nycourts.gov/courts/6jd/forms/SRForms/stip_disc.pdf

It sounds like the lawsuit is done but you also agree to way more than that and that is one sided. The case is "discontinued". That sounds like without prejudice. The next paragraph is very one sided for you releasing all your claims but nothing about what they'll do. I don't even know if it's legal for you to sign away your rights to contact the CFPB or NY Atty General, etc. It's also not clear if they dismiss without prejudice then resell the debt and you're dealing with this again.

I know you want this to be done but I don't think I'd do anything but the linked form. Simple and the case is dismissed with prejudice. After that's done I'd probably send a copy of their desired stipulation to the CFPB and/or NY Atty General to see what they think.

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It depends upon the specifics of your situation.  Let me show you what I mean....

51 minutes ago, rostrow416 said:

Release of Claims: Defendant releases and discharges Barclays Bank Delaware and its respective current and former predecessors, successors, parents, affiliates, subsidiaries, and all of the aforementioned's respective agents, employees, officers, directors, shareholders,  attorneys (Forster & Garbus, LLP), collection agents, credit reporting agencies and vendors ("the Releasees") from all claims of any kind (including and claims for damages, interest, fees, and/or attorney's fees) that he may have with respect to the Account, or any other matters between Defendant and Releasees, including without limitation, all claims that were asserted or could have been asserted in the Litigation as of the date of this Agreement.  Defendant further agrees that he will not file any claims, complaints, affidavits, arbitrations or proceedings with any regulatory or administrative agency with respect to the matters release in this Agreement against any of the aforementioned, and any such claims, complaints, affidavits, arbitrations or proceedings filed prior to the execution of this Agreement shall promptly be dismissed or withdrawn.  This Agreement is intended to resolve forever the entire disagreement between Defendant and Releasees.

This paragraph gives up ALL of your rights, not just against Barclays, but also against Forster & Garbus, and ANY debt collectors that would come along down the road that might buy this debt and act against you on it.  Without knowing the specifics of what took place between you and them, it's impossible to say whether or not this would be worth signing.  That disclosure means you could never file any lawsuit against them, their attorneys, any future debt collector on this account, the credit bureaus, and basically anyone else under the sun that might ever even think about trying to collect or have some other involvement with this account.  And whats worse, you would forever be barred from even filing a complaint with any regulatory agency against any debt collector, attorney, credit bureau, etc etc, no matter what any of those entities decide to do.  Like I said, you would give up ALL of your rights.

Also, unless you left out part of the letter, there is NOTHING in there that says they cannot or should not ever be able to sue you again.  So, if this is the complete agreement they want you to sign, they retain ALL of their rights to take action against you down the road, and also to sell off the debt so that someone else can take action against you later too....while you give up ALL of your rights.  Sounds VERY one-sided to me.  I personally would NEVER sign that.  Is there more in the letter?  I sure hope so, because there's not one word there of what THEY agree to stop doing if you signed it.  The only thing it says with regard to what they agree to is that they agree to dismiss their claim against you, at their cost, and you agree not to even seek reimbursement of the costs you have spent in defending against this lawsuit.  This gives them EVERYTHING and takes ALL rights from you.

Oh, and there's more.  There is pretty much only one reason why a debt collector/attorney would ever want someone to sign this, the way it is worded.  And to the best of my knowledge, that reason is because they know they could get caught having done something wrong.  And this way, if you sign it, they are completely off the hook for whatever law they might have broken.  

If there is more to the letter, please post it up.  Otherwise, I would NEVER sign that.  I would contact a consumer attorney ASAP and try to find out if this is even legal for them to do.  They did not even say that they would dismiss their lawsuit with prejudice, it only says they would discontinue.  Nothing there would prevent them from simply filing the lawsuit all over again in a couple months.

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Confirming- this is without prejudice.

http://law.justia.com/codes/new-york/2012/cvp/article-32/r3217

(c) Effect of discontinuance. Unless otherwise stated in  the  notice,
  stipulation  or  order  of discontinuance, the discontinuance is without
  prejudice, except that a discontinuance by means of notice  operates  as
  an  adjudication on the merits if the party has once before discontinued
  by any method an action based on or including the same cause  of  action
  in a court of any state or the United States.
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That's the entire letter.  I just wanted this to be done, I would have been willing to sign it based on the last line alone, "this agreement is meant to resolve forever the disagreement".  With no cost to either side.  I probably could have filed a counter suit, I will try to post a more complete history later, but I have nothing personal against them, so I don't feel a need to be vindictive, I just wanted to get an idea if it is a decent document to sign, so thank you guys for the feedback

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Would a good option be countering their stipulation with one that I add in a statement like they did in the second part where they release me from all claims and such:

 Barclays Bank Delaware and its respective current and former predecessors, successors, parents, affiliates, subsidiaries, and all of the aforementioned's respective agents, employees, officers, directors, shareholders,  attorneys (Forster & Garbus, LLP), collection agents, credit reporting agencies and vendors ("the Releasees") release the defendant from all claims of any kind (including and claims for damages, interest, fees, and/or attorney's fees) that they may have with respect to the Account, or any other matters between Plaintiff and defendant, including without limitation, all claims that were asserted or could have been asserted in the Litigation as of the date of this Agreement.  Plaintiff further agrees that they will not file any claims, complaints, affidavits, arbitrations or proceedings with any regulatory or administrative agency with respect to the matters release in this Agreement against any of the aforementioned, and any such claims, complaints, affidavits, arbitrations or proceedings filed prior to the execution of this Agreement shall promptly be dismissed or withdrawn.  This Agreement is intended to resolve forever the entire disagreement between Defendant and Releasees.

 

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They sign that, it's out of their hands but you're still potentially dealing with a debt buyer. What if the credit report is inaccurate? What if you get a 1099C?

You did see the court provided nice and simple form, right, that dismisses this with prejudice? Not modified, used as written.

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If they just sent this to you Friday I wouldn't scramble to send it to them certified hoping it gets there before court date Thursday. Bring three copies with you to court Thursday so you, the Plaintiff and the court all get a copy. You may need to provide an order for the Judge to sign. You'll probably see the Plaintiff's attorney in the hallway before hand. If you want to e-mail that link with the court approved form to the Plaintiff's attorney or FAX it to give them a heads up, that seems fine.

It appears from this that when all is signed and done, approved by the Judge, you're supposed to take it to the clerk. All notices, stipulations, or certificates pursuant to this rule shall be filed with the county clerk by the defendant.

The feeling I get from this as @kraftykrab mentioned earlier- they are worried. You've got the upperhand. Don't rush to screw that up. You want dismiss with prejudice. It's right on that form. For the everything but the kitchen sink stuff they threw in, don't sign your rights away.

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@CCRP626  thanks for the advice.  I do believe o have the upper hand as well, I'm near certain I would walk away Thursday with a dismissal without prejudice, I just want them to bring another lawsuit in the future.  This is my 3rd case with them, and I'd like to walk away clear as the other 2 were in my favor, this is the only one that is still owned by the OC, so I was a little worried going into this one.

But I'll be bringing this in Thursday and seeing where it goes, it would be ideal.

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5 hours ago, rostrow416 said:

That's the entire letter.  I just wanted this to be done, I would have been willing to sign it based on the last line alone, "this agreement is meant to resolve forever the disagreement".  With no cost to either side.  I probably could have filed a counter suit, I will try to post a more complete history later, but I have nothing personal against them, so I don't feel a need to be vindictive, I just wanted to get an idea if it is a decent document to sign, so thank you guys for the feedback

The problem is that it does not forever resolve anything.  The agreement is MEANT to resolve forever....but it also makes no mention of what the exact disagreement is is supposed to be in consideration of.  The disagreement could be their claims in the lawsuit.  It could just as easily be any potential claims you would have against them.  The thing is, they intentionally left out even a single word that discusses their claim against you, but wrote up a lengthy and very detailed paragraph to cover all the things that you will be giving up your right to do.  One would think, if this letter was supposed to cover the issues they sued you over, that they could have at the very least written even one sentence to say something about their claim against you, but they chose not to. 

In my experience, that is not left out of this "agreement" by accident.  This is a trap. 

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4 hours ago, rostrow416 said:

Would a good option be countering their stipulation with one that I add in a statement like they did in the second part where they release me from all claims and such:

 Barclays Bank Delaware and its respective current and former predecessors, successors, parents, affiliates, subsidiaries, and all of the aforementioned's respective agents, employees, officers, directors, shareholders,  attorneys (Forster & Garbus, LLP), collection agents, credit reporting agencies and vendors ("the Releasees") release the defendant from all claims of any kind (including and claims for damages, interest, fees, and/or attorney's fees) that they may have with respect to the Account, or any other matters between Plaintiff and defendant, including without limitation, all claims that were asserted or could have been asserted in the Litigation as of the date of this Agreement.  Plaintiff further agrees that they will not file any claims, complaints, affidavits, arbitrations or proceedings with any regulatory or administrative agency with respect to the matters release in this Agreement against any of the aforementioned, and any such claims, complaints, affidavits, arbitrations or proceedings filed prior to the execution of this Agreement shall promptly be dismissed or withdrawn.  This Agreement is intended to resolve forever the entire disagreement between Defendant and Releasees.

 

You could do that, but why would you?  There's only one reason they would do this IMO, and that is to cover their own butts.  They saw something that you could possibly sue them over, I would guess...either that, or they intend to do something once you would sign this that would have violated the laws.  But by that time, it would be too late for you to protect yourself, because you would have given up those rights. 

As someone else said, there's a much faster and easier way to do this, but you need to ask yourself why they are trying to skip the simple court form and go this route instead.  They do not get in the habit of doing anything unless it is to profit themselves.  I would simply stick to the point that if they want to make this go away, they can dismiss with prejudice.  That's it.  If you want to just make this go away and do not want to get into court battles with them, I would maybe consider a counter offer.  I would offer the following:

1--they dismiss this case with prejudice.

2--they agree in writing never to attempt to collect this alleged debt in the future.

3--they agree in writing never to sell this alleged debt to some other CA, debt collector, or debt buyer.

In return, you would agree to them that you would never take any action against them with regard to this account.  That's about as far as I would go.  Might be pushing it a bit with demanding that they never sell the debt, but this is a bit of a negotiation.  You never know what they would say yes to unless you propose it.  I would consider typing something up with these terms, and having multiple copies of it with you when you go to court.  Often, their lawyer will meet with you in the hallway before the hearing.  I would hand them this and tell them that this is what it will take to get you to agree not to pursue anything against them and their client.  They might take it.  They might counter with a different offer.  The end goal in my mind would be to get them to dismiss with prejudice, if they go for not ever selling or collecting again, that would be a bonus.

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Guest usctrojanalum

Okay so first, it's most definitely a discontinuance without prejudice. I mean personally, I wouldn't sign that release. You give up a ton of rights for really nothing in return.  That's a personal choice though.   Sometimes it's just better to get cases over with.  You should have room to negotiate though. Go to the Court appearance Thursday and say that you will sign their release so long as the discontinuance is with prejudice. 

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On 5/9/2016 at 1:00 PM, usctrojanalum said:

Okay so first, it's most definitely a discontinuance without prejudice. I mean personally, I wouldn't sign that release. You give up a ton of rights for really nothing in return.  That's a personal choice though.   Sometimes it's just better to get cases over with.  You should have room to negotiate though. Go to the Court appearance Thursday and say that you will sign their release so long as the discontinuance is with prejudice. 

That was excellent advice, USC, but as you said, sometimes folks just want to get it over and end the stress.   Plaintiffs know that often works on unrepresented litigants.

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@CCRP626

So thank you everyone for the advice.  I wrote a stipulation with prejudice and offered them a release of all claims, but they declined, and discontinued the case anyway. So, they can still sue in the future.  I doubt they will, but if they do next time, I am going to go after them hard.

 

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