Should I file a motion for default on OC?

[RockyRoad]

Barclays Bank Delaware is one of five defendants with the others being a law firm & attorneys who sued me in small claims.  I sued all five defendants under FDCPA & FCCPA.  The law firm has retained counsel & filed a motion to dismiss for failure to state a claim.  

Barclays Bank Delaware is a Defendant under FCCPA only.  They were served on April 9th and had until April 30th to answer.  They still have not answered my complaint nor retained counsel.  Should I file a motion for default on the OC before dealing with the law firms motion to dismiss?

[BV80]

3 minutes ago, RockyRoad said:

Barclays Bank Delaware is one of five defendants with the others being a law firm & attorneys who sued me in small claims.  I sued all five defendants under FDCPA & FCCPA.  The law firm has retained counsel & filed a motion to dismiss for failure to state a claim.  

Barclays Bank Delaware is a Defendant under FCCPA only.  They were served on April 9th and had until April 30th to answer.  They still have not answered my complaint nor retained counsel.  Should I file a motion for default on the OC before dealing with the law firms motion to dismiss?

How did you serve Barclay's?

[Clydesmom]

Wow.  You are going to ride this until it bites you in the posterior and you owe thousands in costs and attorney fees.  Good luck.

 

[Clydesmom]

1 hour ago, RockyRoad said:

Should I file a motion for default on the OC before dealing with the law firms motion to dismiss?

You said you filed a Federal lawsuit against Barclays.  As @BV80 pointed out in your other thread the FCCPA is a STATE law.  If you filed this in Federal Court you filed in the wrong venue/jurisdiction.  The court does not even have the authority to hear the case.  If I were you I would withdraw this suit against Barclays instead of buying more trouble and expense.

[BV80]

On 5/2/2018 at 1:59 AM, Clydesmom said:

Wow.  You are going to ride this until it bites you in the posterior and you owe thousands in costs and attorney fees.  Good luck.

 

We need to know how the OP served the bank.  If they were not properly served, even if he were to somehow get a default judgment, the bank would have no problem getting it reversed.  

We can't offer suggestions to the OP if he doesn't answer questions.

[Guest usctrojanalum]

On 5/2/2018 at 2:09 AM, Clydesmom said:

You said you filed a Federal lawsuit against Barclays.  As @BV80 pointed out in your other thread the FCCPA is a STATE law.  If you filed this in Federal Court you filed in the wrong venue/jurisdiction.  The court does not even have the authority to hear the case.  If I were you I would withdraw this suit against Barclays instead of buying more trouble and expense.

You are assuming that the lawsuit is against Barclays separately.  If that is not the case, the Court would have jurisdiction over the state law claims. 

[Clydesmom]

1 hour ago, usctrojanalum said:

You are assuming that the lawsuit is against Barclays separately.  If that is not the case, the Court would have jurisdiction over the state law claims. 

Can essentially two cases be filed in the same Federal Case?  If the OC is only being sued for the FCCPA and the attorneys are only being sued for the FDCPA how can they be in one single filing?

[Guest usctrojanalum]

if all the transactions or occurrences are sufficiently linked it can be done. 

[BV80]

6 hours ago, usctrojanalum said:

if all the transactions or occurrences are sufficiently linked it can be done. 

He filed suit based on judgments that have already been rendered against him. You can look on the first page of his other thread to see what he claims to be violations.

https://www.creditinfocenter.com/community/topic/329622-arbitrate-v-defending-account-stated-claim/?page=2&tab=comments#comment-1365059

 

[RockyRoad]

On 5/2/2018 at 12:49 AM, BV80 said:

How did you serve Barclay's?

I served Barclays through private process server in Delaware.  Served on the 9th with proof of service yet still no answer.

[RockyRoad]

18 hours ago, usctrojanalum said:

You are assuming that the lawsuit is against Barclays separately.  If that is not the case, the Court would have jurisdiction over the state law claims. 

Defendants are Barclays, a law firm, and their attorneys.  I did not include Barclays in my FDCPA counts.  Supplemental jurisdiction for state claims are under 28 USC § 1367.

[RockyRoad]

15 hours ago, BV80 said:

He filed suit based on judgments that have already been rendered against him. You can look on the first page of his other thread to see what he claims to be violations.

https://www.creditinfocenter.com/community/topic/329622-arbitrate-v-defending-account-stated-claim/?page=2&tab=comments#comment-1365059

 

Incorrect.  After I filed my Fed suit I went to small claims and the judge granted summary disposition to Barclays.  I put in my Fed suit a request for any judgment amount that might be granted in the small claims suit against me.

[BackFromTheDebt]

I will leave it to more knowledgeable people to debate the merits of your case. I don't have a clue on that matter.  That is not the question.  Assume for the sake of argument the case has merit.  

If you served Barclays properly, and they have not answered the case by the end of today, then go ahead and file for a default judgment on Monday.  Monday is a week past the deadline.  Judges will sometimes (not always) give some leeway for deadlines.  Of course, any filing with the court should be sent to Barclay's as well.  They may see the motion for default judgment and decide to answer and try to get the judge to allow the answer.  If so, the judge may or may not allow that.  Trying to predict the behavior of an unknown random federal judge is far beyond my limited psychic abilities.  

[Harry Seaward]

On 5/4/2018 at 7:05 AM, BackFromTheDebt said:

If you served Barclays properly, and they have not answered the case

OP sued in Federal court using state claims. While it appears this 'can be done', I would highly doubt that will be the outcome of someone filing their first Federal lawsuit ever.

I suspect the reason that Barclays hasn't responded is because they were not served properly, or OP sued a 'non-entity', like he called them Barclays Bank of Delaware when their actual name is Barclays Bank,  N.A.  Something like that. 

[BV80]

2 hours ago, Harry Seaward said:

OP sued in Federal court using state claims. While it appears this 'can be done', I would highly doubt that will be the outcome of someone filing their first Federal lawsuit ever.

I suspect the reason that Barclays hasn't responded is because they were not served properly, or OP sued a 'non-entity', like he called them Barclays Bank of Delaware when their actual name is Barclays Bank,  N.A.  Something like that. 

I wonder WHO was served.   It just seems strange that the bank would not respond if properly served. 

[Clydesmom]

4 hours ago, Harry Seaward said:

I suspect the reason that Barclays hasn't responded is because they were not served properly, or OP sued a 'non-entity', like he called them Barclays Bank of Delaware when their actual name is Barclays Bank,  N.A.  Something like that. 

In addition to this I suspect they had it served on the corporate office instead of the registered agent.  A private process server being used was a red flag for me that it would not have been proper service.  

2 hours ago, BV80 said:

It just seems strange that the bank would not respond if properly served. 

There is actually a VERY famous case involving Pepsi involving the very same thing.  2 men sued Pepsi claiming they stole their idea to sell bottled water.  They had the suit served on the company in NC where they were incorporated and thanks to an error by legal counsel secretary the lawyer never saw the suit and they got a default judgment for 1.2 billion dollars against Pepsi   In the motion to vacate the default judgment one of the errors the the Plaintiffs made was to serve the office where they were incorporated NOT the corporate headquarters as required.  In the end the judgment was vacated.

https://abovethelaw.com/2009/10/legal-secretary-of-the-day-pepsis-1-26-billion-mistake/

If the OP did serve the wrong location Barclays will have little difficulty getting a default judgment vacated based on precedent.

[BV80]

31 minutes ago, Clydesmom said:

In addition to this I suspect they had it served on the corporate office instead of the registered agent.  A private process server being used was a red flag for me that it would not have been proper service.  

There is actually a VERY famous case involving Pepsi involving the very same thing.  2 men sued Pepsi claiming they stole their idea to sell bottled water.  They had the suit served on the company in NC where they were incorporated and thanks to an error by legal counsel secretary the lawyer never saw the suit and they got a default judgment for 1.2 billion dollars against Pepsi   In the motion to vacate the default judgment one of the errors the the Plaintiffs made was to serve the office where they were incorporated NOT the corporate headquarters as required.  In the end the judgment was vacated.

https://abovethelaw.com/2009/10/legal-secretary-of-the-day-pepsis-1-26-billion-mistake/

If the OP did serve the wrong location Barclays will have little difficulty getting a default judgment vacated based on precedent.

Thanks for the link to that lawsuit.  

 

[RockyRoad]

On 5/5/2018 at 7:26 PM, Harry Seaward said:

OP sued in Federal court using state claims. While it appears this 'can be done', I would highly doubt that will be the outcome of someone filing their first Federal lawsuit ever.

I suspect the reason that Barclays hasn't responded is because they were not served properly, or OP sued a 'non-entity', like he called them Barclays Bank of Delaware when their actual name is Barclays Bank,  N.A.  Something like that. 

Barclays Bank Delaware is the listed defendant.  This name is listed on the Delaware government website for the registered corporation for Barclays, and also the entity that sued me in small claims.

[RockyRoad]

On 5/5/2018 at 10:14 PM, BV80 said:

I wonder WHO was served.   It just seems strange that the bank would not respond if properly served. 

The managing agent for Barclays Bank who is designated by law to receive service of process for Barclays was served.  Not sure why they have not responded.

[BV80]

38 minutes ago, RockyRoad said:

The managing agent for Barclays Bank who is designated by law to receive service of process for Barclays was served.  Not sure why they have not responded.

Do you mean registered agent?   It's a "registered agent" that usually accepts service of process for corporations and banks.  The DE Secretary of State would have the name of Barclays registered agent.

[RockyRoad]

1 hour ago, BV80 said:

Do you mean registered agent?   It's a "registered agent" that usually accepts service of process for corporations and banks.  The DE Secretary of State would have the name of Barclays registered agent.

Banking Corporations in Delaware aren’t required to provide the address of their registered agent.  The only registered agent listed for Barclays is “Barclays Bank Delaware” and provides no address.  I spoke with someone from the Secretary of State’s website about this.

[RockyRoad]

I believe the case will get dismissed.  The only hope I had was failure of Barclays to answer, which even if pushed might have the default vacated.  At this point I’m looking for a way to settle both state & federal cases.  I have a judgment in the state case I would be willing to pay in full or large percentage at once.  How would you all go about talking to the attorney about satisfying both cases?  Or just let it dismiss and pay the small claims without contacting the defendants attorney?

[BV80]

23 hours ago, RockyRoad said:

I believe the case will get dismissed.  The only hope I had was failure of Barclays to answer, which even if pushed might have the default vacated.  At this point I’m looking for a way to settle both state & federal cases.  I have a judgment in the state case I would be willing to pay in full or large percentage at once.  How would you all go about talking to the attorney about satisfying both cases?  Or just let it dismiss and pay the small claims without contacting the defendants attorney?

I've been pondering what I would do if I were in your shoes.

Like you, I don't know why Barclays hasn't responded.  Considering they are a major bank who both files lawsuits and faces lawsuits filed against them, I can only figure that they were not properly served.   I could be very well be wrong about that, but it just seems strange that a big bank would not respond to a lawsuit if properly served.

Based upon what you stated before, I agree that your federal lawsuit would be dismissed.   The law firm (and Barclays) has case law on their side.

This is just my opinion and the first thing I would do.   I would first review my state laws about judgments and liens. 

     1.  How long does a judgment last, and can it be renewed?

     2.  Can my wages be garnished?

     3.  Do I own property?  

     4.  Does a judgment create a lien on that property?

In the event I don't own property, a judgment could hinder an attempt to purchase a car or home.   That would depend upon how long a judgment lasts, whether or not it can be renewed, and whether or not I try to make a major purchase during the life of the judgment.

Making those determinations might help you decide your next course of action.

Hopefully, some others will offer some opinions.

    

[RockyRoad]

7 hours ago, BV80 said:

I've been pondering what I would do if I were in your shoes.

Like you, I don't know why Barclays hasn't responded.  Considering they are a major bank who both files lawsuits and faces lawsuits filed against them, I can only figure that they were not properly served.   I could be very well be wrong about that, but it just seems strange that a big bank would not respond to a lawsuit if properly served.

Based upon what you stated before, I agree that your federal lawsuit would be dismissed.   The law firm (and Barclays) has case law on their side.

This is just my opinion and the first thing I would do.   I would first review my state laws about judgments and liens. 

     1.  How long does a judgment last, and can it be renewed?

     2.  Can my wages be garnished?

     3.  Do I own property?  

     4.  Does a judgment create a lien on that property?

In the event I don't own property, a judgment could hinder an attempt to purchase a car or home.   That would depend upon how long a judgment lasts, whether or not it can be renewed, and whether or not I try to make a major purchase during the life of the judgment.

Making those determinations might help you decide your next course of action.

Hopefully, some others will offer some opinions.

    

I plan on paying the judgment off in full in 2 weeks.  As far as the Fed suit goes, I might just not even respond and let it dismiss.

[RockyRoad]

Here is a copy of the service.