AvgGuy

Motion to change dismissal without prejudice?

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Recently was granted a Dismissal Without Prejudice with a collection agency. Is there a motion I can file to have the Plaintiff dismiss with prejudice?

I also have a pending arbitration case in which the Plaintiff demanded that the case be closed due to the fact that they dismissed the court case.  Are they able to do that?

Do I have any leverage over the Plaintiff to resubmit a dismissal with prejudice with the Court?

Thank you for your time and assistance.

@firsthardcheese

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2 hours ago, AvgGuy said:

Recently was granted a Dismissal Without Prejudice with a collection agency. Is there a motion I can file to have the Plaintiff dismiss with prejudice?

I also have a pending arbitration case in which the Plaintiff demanded that the case be closed due to the fact that they dismissed the court case.  Are they able to do that?

Do I have any leverage over the Plaintiff to resubmit a dismissal with prejudice with the Court?

Thank you for your time and assistance.

@firsthardcheese

1.  The only time I was able to get a Dismissal w/o changed to a Dismissal with was when the Plaintiff's attorney and I reached a settlement.  Part of the settlement was a stipulated agreement to dismiss the case with prejudice.  I don't know the rules of procedure in Hawaii, but in general you could file a motion to change to dismissal to dismissal with prejudice.  However, you need to send a notice to the other party.  If they object, you probably won't get it.

My thinking is:  I have never heard of a case in which a collection case was dismissed w/o prejudice in which the opposing party came back and sued again.  I once had a case dismissed w/o prejudice when the other party refused to arbitrate.  They never sued again.  

2.  As for the pending arbitration in which the Plaintiff wants the case dismissed -- well, the case WILL be dismissed if they don't pay the fees.  Unless YOU pay the fees, get an arbitration award against them, and then go to court to collect the award.  

In general, having your arbitration dismissed when a case has been dismissed is a good idea.  They are NOT going to revive the case in court.  Unless you have some good counterclaims against them.  If you have counterclaims against them, then sue them in court.  If you want the claims heard in arbitration, file an MTC.  At that point, if they refuse to arbitrate when YOU are suing THEM, you have a lot of leverage in court.  But that is jumping the gun,

 

All in all, it appears you have just won a case because they don't want to fight it in court or arbitration.  If I were in your shoes, I would celebrate the victory, and move on.

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Thanks for your reply @BackFromTheDebt

I agree with you that I should, and do want to, move on.  My main concern is that dismissing without prejudice is only going to provide them with another opportunity to come after me again in the near future.  I've read where you indicated that you "...have never heard of a case in which a collection case was dismissed w/o prejudice in which the opposing party came back and sued again." But, I have also read elsewhere on this forum that that is exactly what the collection agency did.

I believe I got lucky that the collection agency filed in civil court and I was able to use the arbitration provision in the card member agreement.  It is a Citibank agreement, with the Small Claim carve out.  I'm worried that the collection agency will refile, but this time in Small Claims, and then I would not be able to use the arbitration provision as I was able to this time.  Thoughts?

@hardfistcheese

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1 hour ago, AvgGuy said:

Thanks for your reply @BackFromTheDebt

I agree with you that I should, and do want to, move on.  My main concern is that dismissing without prejudice is only going to provide them with another opportunity to come after me again in the near future.  I've read where you indicated that you "...have never heard of a case in which a collection case was dismissed w/o prejudice in which the opposing party came back and sued again." But, I have also read elsewhere on this forum that that is exactly what the collection agency did.

I believe I got lucky that the collection agency filed in civil court and I was able to use the arbitration provision in the card member agreement.  It is a Citibank agreement, with the Small Claim carve out.  I'm worried that the collection agency will refile, but this time in Small Claims, and then I would not be able to use the arbitration provision as I was able to this time.  Thoughts?

@hardfistcheese

The demon you are trying to summon is @fisthardcheese

It appears the case is still open in arbitration. In that case, just see it through. 

If the case in arbitration is closed due to non-payment, file a motion with the court, along with proof that the case was dropped for non-payment, asking for a dismissal with prejudice due to them violating the terms of the MTC.  Maybe it will work, maybe not.  

If they file again, file a motion to dismiss the case as the case is already in court ordered arbitration as the venue.  It seems to me you would have a really good case against them this time, perhaps either in state or federal court.  If that happens, consult an attorney as to the best way to pursue them.  

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