Being sued again after case was dismissed without prejudice

[SkyStillSunny]

Hello, it's me again. I was just served by Stenger and Stenger (representing Cach LLC) on an account that was dismissed without prejudice last year. 

The last time they sued me I appeared in court and during mediation I told the attorney that I planned on filing a MTC arbitration. She was confused, and when we went to trial she asked for a continuance. The judge granted it, and we were to appear back in court 30 days later. Well when I came back, no attorney was present so the judge signed a dismissal without prejudice. I did ask him to make it with prejudice, and he denied the request.

Here we are again, and the same law firm representing the same JDB is suing me again. I haven't sent in my answer yet. I was planning on using the same arbitration defense, but after further review of the credit card agreement there is a note about "ordinary claims," and I just went through another case with that clause and was denied my MTC arbitration from the judge!

Btw, this is in GA. The amount is around $1300. It's for First National Bank in Omaha that was defaulted around Feb 2016, maybe earlier.

I'm really afraid that my MTC arbitration will get denied again because the judge is a JDB friendly judge. Do I have any other options to file my answer? I mean I am going to try to proceed as usual w/ my answer and then present my MTC at court, but because this has no mention of small claims court, even if I was denied, and appealed to a higher court it seems like that verbiage would still stand. Thoughts? Help?

Below is the verbiage from a Q1 2016 agreement. And the bold is what I'm concerned about. So many of you have helped me dismiss so many cases over the past few years... I need some advice on this particular circumstance to see if anyone has any success with arguing this. THANK YOU!

Quote

ARBITRATION:
THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY:
WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” (AS DEFINED ABOVE) BE RESOLVED BY BINDING ARBITRATION.
ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED.
YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER.
Except as provided below: (1) you may unilaterally choose to have any Claim that we bring against you resolved through binding arbitration; and (2) we may unilaterally choose to have any Claim that you bring against us (or us and any of Our Related Parties) resolved through binding arbitration. If you assert a Claim against any of Our Related Parties, but you do not also assert that Claim against us, the Related Party (or whoever will be defending the Related Party) may unilaterally choose to have that Claim resolved through binding arbitration. If a court proceeding is commenced, the party that commenced that court proceeding may unilaterally choose to have any counterclaim, cross-claim, or third party claim brought in that proceeding resolved through binding arbitration. If a party chooses to have a Claim resolved by arbitration pursuant to this arbitration provision, neither you nor we will have the right to litigate that Claim in court, have a jury trial on that Claim, or engage in pre-arbitration discovery, except as provided for in the applicable Arbitration Rules of the selected Arbitrator(s) and as otherwise set forth in this arbitration provision.
“Ordinary Claims” are not subject to this arbitration provision and may be resolved through litigation. A Claim will be considered an “Ordinary Claim” if all three of the following are true: (1) the only remedy being sought for the Claim is monetary damages; (2) the recovery being sought for the Claim is less than $25,000, excluding interest and costs; and (3) the only parties to litigation to resolve the Claim will be you, us and/or Related Parties.

 

[NormInGeorgia]

@SkyStillSunny  I don't know if this will work and others should weigh in here to see if it is too much of a stretch, but I am wondering if you submit a counterclaim on the existing case that it would technically defeat condition #1 of the "ordinary claim" definition?  If you counterclaim FDCPA violations (and hopefully some other violations) and demand remedies beyond monetary damages (such as credit report corrections/deletions) the case as a whole may fall outside the "ordinary claim" definition and be covered by arbitration.   Again, I have absolutely no idea if that would work. 

Did the JDB send you the agreement verbiage either the first time around or this second time around, or is that just the one you found closest to the time of default?   

[SkyStillSunny]

@NormInGeorgia I don't know if I could file a counterclaim in my answer because I don't think they have committed any FDCPA violations. The amount they are suing for is exactly the amount that is in my credit report. Although the original amount when I defaulted was like 1100, but after all the late fees a year later the amount owed is now closer to $1500. However, I'm not sure those late fees are considered violations. 

The JDB did not send me the agreement verbiage. It is one I found on the consumer agreement db.

[Goody_Ouchless]

The problem with counter claims is coming up with 25K in bogus violations - it seems, if anything, that would rise to the level of frivolity.

 

[SkyStillSunny]

2 minutes ago, Goody_Ouchless said:

The problem with counter claims is coming up with 25K in bogus violations - it seems, if anything, that would rise to the level of frivolity.

 

 

Yes, so I'm thinking I just try w/ the MTC instead of mention a counterclaim in my answer? If it gets denied because of the "ordinary claims" I was wondering if there was any other declaratory ruling that I could use that is not of monetary claim that would get me out of that provision.

[fisthardcheese]

On 10/9/2019 at 5:38 PM, Goody_Ouchless said:

The problem with counter claims is coming up with 25K in bogus violations - it seems, if anything, that would rise to the level of frivolity.

 

It doesn't have to be for any monetary amount.  It only has to ask for an injunction of some kind (such as an order to stop reporting to the CRAs).  That will defeat the "ordinary claims" garbage. 

The biggest hurdle here is that it is Magistrate Court and it's basically just the wild west of litigation still.  If this were me, I would do everything I could to uncover a counter claim of any kind.  In GA Magistrate, a counter claim still works as good as an MTC to force a mutual dismissal with prejudice agreement.

[SkyStillSunny]

How would I be able to ask for an injunction as a defendant? Is that requested on the answer form that I turn back in to the court? What if my injunction is denied?

Are there any other common counter claims that these JDBs might be in violation? I have gone through the papers, and it doesn't appear to be any. If I were to find one, would I put my counterclaim in my answer?

[NormInGeorgia]

@SkyStillSunny  See attachment for example.  This is EXAMPLE ONLY.

EXAMPLE ONLY Georgia FDCPA Counterclaims.doc

[fisthardcheese]

You don't ask the court for an injunction.  You include it on your JAMS Demand form.  Your MTC would be just like your previous one with no mention of any "ordinary claims" nonsense.  That is for them to bring up. If they do, your JAMS Demand becomes evidence of the fact you are not precluded by the "ordinary claims" exception in the contract.

A counter claim is not part of an answer.  It is a separate pleading.  If you are going to file a counter claim, this should most likely be in place of an MTC.  Doing both is not a good idea.

3 hours ago, NormInGeorgia said:

@SkyStillSunny  See attachment for example.  This is EXAMPLE ONLY.

EXAMPLE ONLY Georgia FDCPA Counterclaims.doc 52 kB · 1 download

Don't forget to include a prayer for relief at the end.  This example does not have that.

[SkyStillSunny]

Thank you so much @NormInGeorgia. I'm going to see if I can use any of these claims if I file a counterclaim.

Also, @fisthardcheese I saw the below in Norm's document at the very end. Doesn't this count as a prayer for relief?

Quote

WHEREFORE, Defendant respectfully prays that the Court dismiss the action against Defendant with prejudice; Defendant further prays that this Court enter a judgment against Plaintiff for all damages proven at trial against Plaintiff, including actual damages and statutory damages, attorneys’ fees and costs under the Fair Debt Collection Practices Act , including actual and treble damages, attorneys’ fees and costs pursuant to the Fair Business Practices Act, O.C.G.A. § 10-1-391 et seq, and attorneys’ fees and expenses as provided by O.C.G.A. § 9-15-14, with all costs taxed against Plaintiff.  Defendant also requests the Court to order to delete all negative Credit Reporting Agency entries against the Defendant.

So this is my plan:

1. File an answer and deny the claim. Should I go ahead and put my affirmative defense with arbitration? The reason I asked about the counterclaim here is because on the Answer Form there is a section to counterclaim, but I guess you can't deny and counterclaim at the same time. I was confused about that. 

2. At my court date, I will present my MTC arbitration.

3. If the attorney calls out the "ordinary claim" verbiage of the agreement, then I bring out my AAA form. (This agreement only has AAA as their arbitration option.) Should I file the AAA case now or wait? In my AAA form, I will submit this to the judge as evidence of the fact I'm not precluded by the "ordinary claims" exception in the contract. So what do I need to write in the claims section of my AAA form to indicate that I'm requesting an injunction? Do I have to find a claim? Like asking them to remove it from my credit report? Not sure what to write here...

4. What if the judge doesn't agree that my evidence does not preclude me from "ordinary claims"? Trying to think of all options here, because I'm certain this judge will find a reason after having seen him several times before.

Thank you!

[SkyStillSunny]

Hi @fisthardcheese or anyone else that would like to provide any suggestions at all. Any thoughts on the above? The clock is ticking before I need to file an answer, and was hoping for some feedback on my approach. Thanks!

[BV80]

40 minutes ago, SkyStillSunny said:

Hi @fisthardcheese or anyone else that would like to provide any suggestions at all. Any thoughts on the above? The clock is ticking before I need to file an answer, and was hoping for some feedback on my approach. Thanks!

What was the date of last payment on the account?

[SkyStillSunny]

@BV80 It was in 2016. I think in February of 2016, or around that time.

[fisthardcheese]

On 10/17/2019 at 11:23 AM, SkyStillSunny said:

1. File an answer and deny the claim. Should I go ahead and put my affirmative defense with arbitration? The reason I asked about the counterclaim here is because on the Answer Form there is a section to counterclaim, but I guess you can't deny and counterclaim at the same time. I was confused about that. 

I would only use a counter claim OR arbitration, but not both.  Those 2 options run counter to each other.  One is asking the court to hear your claims and the other is saying the court has no jurisdiction.  You can't say both things at the same time.

On 10/17/2019 at 11:23 AM, SkyStillSunny said:

3. If the attorney calls out the "ordinary claim" verbiage of the agreement, then I bring out my AAA form. (This agreement only has AAA as their arbitration option.) Should I file the AAA case now or wait? In my AAA form, I will submit this to the judge as evidence of the fact I'm not precluded by the "ordinary claims" exception in the contract. So what do I need to write in the claims section of my AAA form to indicate that I'm requesting an injunction? Do I have to find a claim? Like asking them to remove it from my credit report? Not sure what to write here...

Don't file, just have the AAA form ready to file and 3 copies with you in court.  Yes, as explained above, the entire point of overcoming the potential "ordinary claims" issue is to have something in your AAA Demand form asking for some type of injunction so you need that at the very least if not that plus an FDCPA or FCRA violation.  I would say an FCRA violation would be best if you are asking for removal due to errors.

On 10/17/2019 at 11:23 AM, SkyStillSunny said:

4. What if the judge doesn't agree that my evidence does not preclude me from "ordinary claims"? Trying to think of all options here, because I'm certain this judge will find a reason after having seen him several times before.

If the judge denies arbitration the first thing I would do is ask for a continuance.  It will likely be denied, but worth a shot.  If they continue with the trial, you attempt to argue that they have no proof you owe anything and also no proof they actually bought YOUR account within their mystery bundle of accounts they will likely have a letter claiming.  If none of it works, I would file an appeal.

[SkyStillSunny]

Thank you @fisthardcheese. I will file my answer tomorrow and see how it goes in court in a month. Will update here.

[SkyStillSunny]

Update: 

Went to court and was prepared with the following plan (thanks all for the advice): 

1. Present MTC arbitration
2. If the mention the "ordinary claims," then I would say that I am requesting an injunction in my AAA demand form, which would make the "ordinary claims" exclusion not apply.
3. If the judge denies, then ask for a continuance. I was thinking that if it got to this point, I would prepare a counterclaim instead.

Well the attorney comes to meet me during mediation, and I tell him that I'm going to request arbitration. I show him the MTC I prepared, and the credit card agreement. He says this to me: "Georgia doesn't allow small arbitration through magistrate." And I reply, that's because it wouldn't be through the court, it's private arbitration. And then he mumbles something about small claims and looks through the agreement, and says "ok, well if you really want to go through with arbitration." I say yes. See the judge and my court order for arbitration gets signed!

The judge did tell me that I should contact Cach LLC first to let them know. Not sure what was meant by that, but I plan on sending the AAA demand form to the law firm and the JDB. 

The attorney wouldn't give me a business card because he said that he's just filling in, so I will just send them to the address on my papers. However, I don't have an address for Cach.

Just curious, but when I send in my AAA and copy them, how do they know it's in reference to this particular case? I'm sure they'll ignore it like all the others and we'll go back to court, and again, I'll get it dismissed withOUT prejudice because the judge never seems to dismiss with prejudice unless I've settled with JDB.

[LaneBlane]

On 12/4/2019 at 11:28 AM, SkyStillSunny said:

Just curious, but when I send in my AAA and copy them, how do they know it's in reference to this particular case? I'm sure they'll ignore it like all the others and we'll go back to court, and again, I'll get it dismissed withOUT prejudice because the judge never seems to dismiss with prejudice unless I've settled with JDB.

When I mailed a Demand for Arbitration last October, I included a cover letter with the copies I served on the business and their attorney/representative.  The cover letter included a subject line with the account number so they knew what it was in reference to.

 

[fisthardcheese]

I would not send it to CACH.  They are represented by an attorney and all matters go through the attorney. This is the proper method.  Just send it to the attorney listed in the court filings.