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Being Sued by OC - Can anyone offer advice on my complex situation?


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I've been reading this forum for a couple of years now, but this is actually my first post.  To give some background: I got sick and ended up in the hospital a few years ago, at which point, I racked up tens of thousands in medical expenses over the period of about a year, and which eventually caused me to default on a bunch of credit cards, some of which have already sued.  So, at this point, I have already been through several debt collections with both an OC (one) and JDBs (two).  In the case of the previous OC, it was the first time I had been sued by a collector and through my research, that is how I initially found this forum and all the great information here.  And although I made some mistakes on the first OC case, I was able to settle for a lower figure than their initial offer, so it probably worked out ok for me, but I feel like I could have gotten a better settlement, especially after learning so much more in the two subsequent cases against the JDBs, on which I had the help of an attorney to assist me.  

My current case: Late last year I'd received 3 initial collection notices from a law firm (not a JDB…and out of state, but mentioned on this board in the past) rep'ing a large bank (that removed arbitration from their CC agreement in 2009), which were all for CC accounts that I had previously had for about 15 years.  And I should also say that there is a lot more going in the past with these accounts too, and without getting into everything, there were at least two unresolved disputes from several years prior to all of this starting, and one of the cards was closed when it wasn’t even in default.  I hadn’t even missed a payment on it, but I guess that’s their policy when other accounts default – at least, that’s what I was told.  Their agreement says they can “close any account at any time for any reason” and because I had defaulted on two other accounts, they said they closed all three (without even telling me first)!   Seems like that really ought to be illegal, but should be unenforceable in court at the minimum to make a blanket statement like that, especially when it couldn’t possibly be true for all instances.  But regardless of that point, there is a big history here, which I feel makes their case even tougher, especially considering the outstanding disputes and letters I wrote that they never responded to.

So I sent a dispute letter for each initial collection notice within the 30 day FDCPA requirement (USPS Signature Guarantee, so there are no questions on the timing).  They sent me "validation" in the form of several month’s worth of statements (many of which were never actually even mailed to me…I guess they were created after the account was closed, judging by the dates??), a page outlining some basic information, and a copy of the CC agreement.  I should note that the validation package was sent AFTER the 5 day dispute response period (per the FDCPA), but it was close, so they might be able to make the argument that they were “close enough,” but at least it’s a valid cross-claim for me to start with.  And then I didn't hear anything else until a couple of weeks ago, when I received three summons’. 

So the summons’ were pretty thin…didn’t even mention account numbers, no affidavit citing knowledge of the debt, no items of evidence attached, or anything like that.  So I called the law firm and spoke to the lawyer on the case.  Without saying really anything, other than explaining I had received the summons’, I told them "I still dispute these accounts" and they immediately started going into how they could settle for about 80% of the amount (they gave me a dollar figure), paid monthly over several years.  I honestly believe that the amounts owed on the accounts really should be about half of the figures in the summons, so to take that settlement seems insane to me…but it also seems like the easiest out here and I’m soooo tired of fighting these collectors after dealing with this for years now, so it’s tempting!  Which brings me to my next point…
 
So now I'm trying to figure out the best way to resolve this case as fast and as cheaply for me as possible (obviously).  The pandemic has made my financial situation even worse over the past year (I’m sure you all know the feeling) and we’re seriously struggling just to make monthly expenses, I can't afford to hire a lawyer to defend me here, or if it even makes sense from a financial standpoint… especially if I can negotiate a better settlement myself or make them go away, even if it’s just temporarily.  But going with the settlement and taking on additional monthly payments also seems impossible.  So I’m trying to figure out my best strategy for approaching these cases and I thought you all might have some pointers, because this one is much more complex than the previous cases I've had to deal with.

My questions are:
1. Just to be clear: The Arbitration Strategy will NOT work in this case, because it’s not part of their CC agreement anymore – is that correct?  This board has mentioned that Arbitration was removed from unnamed big bank’s CC agreement in 2009 (I think many of you will know which bank in America I’m talking about), and when I checked the agreement, I didn’t see Arbitration in there at all.  So Arbitration will not work here – is that correct?

2. Assuming Arbitration seems to be out, should I first file a motion to consolidate these case?  Or should I just file my Answer with counterclaims and cross-claims?  Or should I file both together?  I feel like consolidating all three into one case would help my case, because it (1) increases my chances of getting this moved to district court if my claims are high enough (which would be part of my strategy here, so that I can get full discovery), and (2) would probably help make it a lot simpler to explain the whole story to a Judge (and it’s a long story) if it really did come down to making arguments in court, and (3) cut down on my out-of-pocket expenses.  So I feel like I should first file a motion to consolidate for each summons' without the answer - is that correct?

3. Or should I first try a motion to dismiss for each case (since the summons’ didn’t technically cite, or otherwise provide, any real evidence and no affidavit)?  I know a motion to dismiss on each case would slow things down here and I could do that without filing my answer, but it seems like they could just respond by sending on copies of statements, so not sure if that would be helpful and not sure if I have grounds to get the dismissal approved or if I’m just wasting the court’s time.

4. Do I have any legit counterclaims against unnamed big bank?  Possible FRCA or FTC violations perhaps? (I ordered my credit report when I got the summons'...but still waiting on it.)  Does anyone know of a list of common violations that unnamed big bank often violates?  Or other things I should look for when dealing with unnamed big bank?

5. Or is there something else I should do in this situation?  Like just take the settlement and pray I’m able to pay it off?


Any advice that someone experienced with these kinds of cases could provide would be extremely helpful!  And THANK YOU in advance, and for all the knowledge this board has provided in the past!

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15 minutes ago, Helplessly Lost said:

  I should note that the validation package was sent AFTER the 5 day dispute response period (per the FDCPA), but it was close, so they might be able to make the argument that they were “close enough,” but at least it’s a valid cross-claim for me to start with. 

What do you mean by “after the 5 day dispute response period”?

 

17 minutes ago, Helplessly Lost said:

1. Just to be clear: The Arbitration Strategy will NOT work in this case, because it’s not part of their CC agreement anymore – is that correct?  This board has mentioned that Arbitration was removed from unnamed big bank’s CC agreement in 2009 (I think many of you will know which bank in America I’m talking about), and when I checked the agreement, I didn’t see Arbitration in there at all.  So Arbitration will not work here – is that correct?

If you opened the accounts after arbitration was removed, arbitration is not an option.

20 minutes ago, Helplessly Lost said:

2. Assuming Arbitration seems to be out, should I first file a motion to consolidate these case?  Or should I just file my Answer with counterclaims and cross-claims?  Or should I file both together?  I feel like consolidating all three into one case would help my case, because it (1) increases my chances of getting this moved to district court if my claims are high enough (which would be part of my strategy here, so that I can get full discovery), and (2) would probably help make it a lot simpler to explain the whole story to a Judge (and it’s a long story) if it really did come down to making arguments in court, and (3) cut down on my out-of-pocket expenses.  So I feel like I should first file a motion to consolidate for each summons' without the answer - is that correct?

You would need to carefully read your rules.  Are the cases all filed by the same law firm for the same plaintiff?

22 minutes ago, Helplessly Lost said:

3. Or should I first try a motion to dismiss for each case (since the summons’ didn’t technically cite, or otherwise provide, any real evidence and no affidavit)?  I know a motion to dismiss on each case would slow things down here and I could do that without filing my answer, but it seems like they could just respond by sending on copies of statements, so not sure if that would be helpful and not sure if I have grounds to get the dismissal approved or if I’m just wasting the court’s time.

What do your rules state must be attached, if anything, to a complaint?   Do the rules require an affidavit and evidence be attached?

 

23 minutes ago, Helplessly Lost said:

4. Do I have any legit counterclaims against unnamed big bank?  Possible FRCA or FTC violations perhaps? (I ordered my credit report when I got the summons'...but still waiting on it.)  Does anyone know of a list of common violations that unnamed big bank often violates?  Or other things I should look for when dealing with unnamed big bank?

By FTC, do you mean FDCPA (Fair Debt Collection Practices Act)?  If so, the FDCPA does not apply to original creditors.

For possible FCRA violations, you would need to study your credit report.  Is all the information correct?   Even if there is incorrect information, there is no private right of action for any violation of the FCRA without first disputing that incorrect information with the credit reporting agencies.

Have you checked your state’s consumer collection laws?   You would need to make sure they apply to original creditors.  

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Thanks for the reply @BV80.  Ok, to answer your follow up:
 

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What do you mean by “after the 5 day dispute response period”?

15 USC 1692g § 809.  Validation of debts

(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing ...

Technically, if you dispute a debt on the initial collection notice, they have to respond with validation within 5 days.  Does that make sense @BV80?
 

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If you opened the accounts after arbitration was removed, arbitration is not an option.

Actually, that's interesting.  I believe ALL the accounts were opened BEFORE 2009, which is when this forum (and other places on the internet) stated that Arbitration was removed from their agreements.  So does that mean that I COULD force them into arbitration?  I'm not sure I have a super old CC Agreement laying around here anywhere to make the claim though.  Do you think it's possible and a good idea in this case?

 

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You would need to carefully read your rules.  Are the cases all filed by the same law firm for the same plaintiff?

So the County Court rules say I can file a Motion to Consolidate prior to the answer.  Yes, all cases were filed by the same law firm for the same plaintiff.  So I'm wondering if it makes sense to do this?  Could that possible affect my FDCPA cases against them?  Or are there other considerations that I don't realize here? 

 

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What do your rules state must be attached, if anything, to a complaint?   Do the rules require an affidavit and evidence be attached?

After a quick check here, I'm not seeing any requirements stating any evidence or anything else (other than the 5 main forms).  I think it would make sense that no evidence is required with the complaint in county court...but I'll need to do some more research there to be 100% sure I guess.

 

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By FTC, do you mean FDCPA (Fair Debt Collection Practices Act)?  If so, the FDCPA does not apply to original creditors.

No - by FTC, I mean Federal Trade Commission violations.  Damages for FTC violations run very high...much higher than FDCPA and FRCA damage awards.

As for the FDCPA - you're right, the FDCPA does NOT apply to OCs, but in this case (and pretty much every money demand legal case) the FDCPA applies to the legal firm rep'ing the OC (or the "Debt Collector" in this case), so you take FDCPA cross-claims against them.  Does that make sense?


 

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1) The 5 day period under the FDCPA is for them to send you an initial letter of collection after contact via phone or other electronic means. That is not for validation. As for validation, you have 30 days to send your letter to request validation after which they have as much time as they want to respond as long as they do not collect until they validate. As for what they sent, that would qualify as validation under the FDCPA. In fact, you probably should have sent a reply to that disputing the amounts due to the ongoing disputes you have had with the OC. That is under the bridge at this point. However, I doubt you have a FDCPA violation against the law firm. Even if you did, that would be against the law firm and you would have to file a separate case against them which does not help you here.

2) If there are FTC violations, odds are they are not private right of action violations which means you have to complain to the FTC and they decide if the OC had indeed violated the law or not. Now, if you have proof of such violations, you could put that under the affirmative defense of Unjust enrichment but you have to prove that they violated the law at that point (without their help).

3) In most states, evidence is not required to be attached to the complaint. That is to be provided only if the case goes to trial. The only thing required on the complain is that they prove the court had jurisdiction, who exactly the parties are, what the issues are, and what relief they are requesting from the court.

4) I doubt the case will get dismissed outright because technically you owe some money. The question is how much and that would be up to the judge to decide in a trial. You might be able to get the cases consolidated but I would talk to a lawyer before doing that. Realize that if you are going to make some claims about disputed charges, in the higher court, they can request your evidence right away too whereas in the lower court, you can bring it in on the day of the trial.

5) As for arbitration, there might be a severability clause in the original agreement but that would be up to you to find it.Also, because this is an aggressive OC, they might follow you into arbitration just to teach you and any other debtor a lesson.

6) It is legal for a creditor to close an account for any reason, including default on other accounts. In fact, some might argue that the right to do that is to protect the OC from further harm as you are becoming too much of a credit risk to allow the account to remain open.

So, where would I go from here? I would probably file an answer with an affirmative defense of unjust enrichment for any of the accounts where you have unresolved disputes and any account where you have a verifiable violation of the FTC. From there, you determine what you really owe the OC and start settlement negotiations on that basis (you can start lower than the full amount you think you owe with the full amount being your limit). However, note that if you want to do monthly payments, the law firm will want you to do a consent judgement so that they do not have to go back to court if you default.

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@BV80 - One more thing I should say here is: If I cannot actually force Arbitration, my strategy would be to hit them with as many counterclaims and cross-claims I can in my answer to compel them to the lawsuit.  Hopefully the damages for those will offset (or be even greater than) the amounts owed and if my case looks good, everyone will dismiss with prejudice and I'll even possibly get a small award.  The work is finding and documenting all the violations and I already have about a half dozen FDCPA violations on just the initial collection notice alone.  But the real key will be to find the FTC and FRCA violations, because if those are valid, there'll most likely be no award for their attorney fees either and those damages get substantial.  Sounds impossible, right??  I used to think so also...      

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25 minutes ago, Helplessly Lost said:

15 USC 1692g § 809.  Validation of debts

(a) Notice of debt; contents
Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing ...

Technically, if you dispute a debt on the initial collection notice, they have to respond with validation within 5 days.  Does that make sense

You’re misreading it.  Here is the entire section.  15 U.S.C. 1692g(a).

(a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt,send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by thedebt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.


The 5-day rule does not apply to a response to a consumer’s request for validation.  It only applies to information they must send you within 5 days after contacting you for the first time.  It states that after the initial (first) communication with a consumer, a debt collector must send a written notice containing the information in (1) through (5).  It also says “unless the following information is contained in the initial communication.”  That means they can include that information in their first written notice to the consumer.  

If the first communication they sent you contained the information in (1) through (5), they complied with 1692g(a).  
 

43 minutes ago, Helplessly Lost said:

Actually, that's interesting.  I believe ALL the accounts were opened BEFORE 2009, which is when this forum (and other places on the internet) stated that Arbitration was removed from their agreements.  So does that mean that I COULD force them into arbitration?  I'm not sure I have a super old CC Agreement laying around here anywhere to make the claim though.  Do you think it's possible and a good idea in this case?

You would have to show the accounts were opened before arbitration was removed.  Also, the arbitration provision included in the earlier agreement(s) must contain a survivability clause.  That means there would have to be language indicating the arbitration provision survives future changes to the agreement.  And yes, finding an old agreement could be difficult.  You could request one from the plaintiff, but whether or not they would be required to provide it is a different story.

49 minutes ago, Helplessly Lost said:

No - by FTC, I mean Federal Trade Commission violations.  Damages for FTC violations run very high...much higher than FDCPA and FRCA damage awards.

As pointed out by @WhoCares1000, to claim violations of FTC laws in a counterclaim would require a private right of action by consumers.  Otherwise, only the FTC can act upon violations.

52 minutes ago, Helplessly Lost said:

As for the FDCPA - you're right, the FDCPA does NOT apply to OCs, but in this case (and pretty much every money demand legal case) the FDCPA applies to the legal firm rep'ing the OC (or the "Debt Collector" in this case), so you take FDCPA cross-claims against them.  Does that make sense?

A cross claim is only allowed against a co-party.  In your case, that would mean another defendant that was sued along with you.  If you are the only defendant, there is no co-party.

 

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@WhoCares1000 

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The 5 day period under the FDCPA is for them to send you an initial letter of collection after contact via phone or other electronic means. That is not for validation.

In my state, they are required to send a very specific initial collection letter that does not contain any validation information.  From there, you have the right to dispute.  In that case, under 15 USC 1692g § 809, they are required to send you validation within 5 days.  Not sure how it works in other states.  My lawyer on a previous collection case told me this, so I'm 100% confident it is correct.

 

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If there are FTC violations, odds are they are not private right of action violations 

Yes, that's a good point and question really!  I have heard (in this forum and other forum) of people bring FTC violations against their creditors, but have never done so in any law suit myself or one in which I was represented by an attorney.  But people (here specifically) have said you can and that they have...of course, I have no idea about how legit that was, which is sort of why I was asking above.  Any ideas on a list of common FTC violations to which I look for (and bring claims for)?

 

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Realize that if you are going to make some claims about disputed charges, in the higher court, they can request your evidence right away too whereas in the lower court, you can bring it in on the day of the trial.

Actually, in District Court or Higher Courts, evidence is typically due in Discovery, which is precisely one of the reasons I'd like to move to a higher court over county court.

 

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It is legal for a creditor to close an account for any reason

Really...is that true though?  What if the creditor closed the account because the OC found out that I'm African American or Chinese or something like that.  Would that be legal?  The point being, there are a slew of reasons why a creditor would not be able to close an account, because it violates other parts of the law for example...so it feels like that clause is unenforceable in court. 

 

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I would probably file an answer with an affirmative defense of unjust enrichment for any of the accounts where you have unresolved disputes

Good point - will definitely look into "Unjust Enrichment"  as a counterclaim here.  Thanks for the pointer there!  


Any ideas for other common violations by unnamed big bank by chance???

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@BV80 - Thanks for the reply again, I REALLY APPRECIATE it!!

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You’re misreading it.  Here is the entire section.  15 U.S.C. 1692g(a).

In my state, they are required to send a very specific initial collection letter that does not contain any validation information.  From there, you have the right to dispute.  In that case, under 15 USC 1692g § 809, they are required to send you validation within 5 days.  Not sure how it works in other states.  My lawyer on a previous collection case told me this, so I'm 100% confident it is correct.
 

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You would have to show the accounts were opened before arbitration was removed.  

Easy though...
 

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Also, the arbitration provision included in the earlier agreement(s) must contain a survivability clause.  That means there would have to be language indicating the arbitration provision survives future changes to the agreement.  And yes, finding an old agreement could be difficult.  You could request one from the plaintiff, but whether or not they would be required to provide it is a different story.

That's the trick...pretty sure I don't have it.  Requesting it won't work in County Court.  If it was District Court, I would be able to compel it as part of the Discovery theoretically.  But because this is County Court, there is limited discovery, so  I would have to make a request to the judge to get full discovery, or I would have to move to district court to be able to compel discovery to get the old agreement from them.  And even then, would they give it to me or just tell me it's been lost now?
 

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As pointed out by @WhoCares1000, to claim violations of FTC laws in a counterclaim would require a private right of action by consumers. 

Yes, that's a good point and my question really!  I have heard (in this forum and other forums) of people bringing FTC violations against their creditors, but have never done so in any law suit myself or one in which I was represented by an attorney.  But people (here specifically) have said you can and that they have...of course, I have no idea about how legit that was, which is sort of why I was asking above.  Any ideas on a list of common FTC violations to which I look for (and bring claims for)?

 

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A cross claim is only allowed against a co-party.  In your case, that would mean another defendant that was sued along with you.  If you are the only defendant, there is no co-party.

I think you misunderstand here.  In my state, the OC is the unnamed big bank, and counterclaims are filed against them, but the FDCPA doesn't apply to them...I think you understand that part.  However, the Law Firm (or Debt Collector) placing the suit is considered the "Debt Collector" and the co-party here which the FDCPA applies to and who you bring you FDCPA cross-claims against.  Does that make sense?  I'm 100% sure this is how it works in my state...not sure about how it works in other states!


So does all of this makes sense, you do you guys have other questions @BV80 and @WhoCares1000?  Either way, I do appreciate your thoughts and advice here! 
 

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20 minutes ago, Helplessly Lost said:

In my state, they are required to send a very specific initial collection letter that does not contain any validation information.  From there, you have the right to dispute.  In that case, under 15 USC 1692g § 809, they are required to send you validation within 5 days.  Not sure how it works in other states.  My lawyer on a previous collection case told me this, so I'm 100% confident it is correct.

I would need to read the specific law from your state.  What matters is how your courts have interpreted that law.  Note also that courts have ruled that NOT every violation of a state law is an automatic violation of the FDCPA.


 

20 minutes ago, Helplessly Lost said:

Yes, that's a good point and my question really!  I have heard (in this forum and other forums) of people bringing FTC violations against their creditors, but have never done so in any law suit myself or one in which I was represented by an attorney.  But people (here specifically) have said you can and that they have...of course, I have no idea about how legit that was, which is sort of why I was asking above.  Any ideas on a list of common FTC violations to which I look for (and bring claims for)?

Bringing or claiming a violation of FTC laws is not the same as courts ruling that the consumer has a private right of action for the violations.  In which FTC act or statute are you looking for violations?


 

20 minutes ago, Helplessly Lost said:

I think you misunderstand here.  In my state, the OC is the unnamed big bank, and counterclaims are filed against them, but the FDCPA doesn't apply to them...I think you understand that part.  However, the Law Firm (or Debt Collector) placing the suit is considered the "Debt Collector" and the co-party here which the FDCPA applies to and who you bring you FDCPA cross-claims against.  Does that make sense?  I'm 100% sure this is how it works in my state...not sure about how it works in other states!

I understand what you previously stated.  There is a difference between a cross claim and a counterclaim.  In the post I addressed, you mentioned cross claim.  You do not have a cross claim because you are the only defendant.  A claim against the opposing party would be a counterclaim.  

In regard to a counterclaim, the claim must be against the other party (in this case, the plaintiff).  The attorney is not the plaintiff.  He is not a co-party because he not a party to the action.  All he is doing is representing the plaintiff.  That does not make him a co-party.  Since the FDCPA does not apply to original creditors, and the attorney is not a party to the action, you cannot raise FDCPA violations as a counterclaim.

What do your rules specifically state about counterclaims?

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@BV80 - Thanks for the message back!  To respond again:
 

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Bringing or claiming a violation of FTC laws is not the same as courts ruling that the consumer has a private right of action for the violations.  In which FTC act or statute are you looking for violations?

As I previously stated, I agree and understand that, but that's precisely what I'm asking: "Which FTC violations should I be LOOKING for and that I can bring suit against?"  Again, as I previously stated, I've only read (on this forum for one) that you CAN bring FTC violations in your counterclaim and they carry a hefty price tag.  But I'm unsure of what exactly I should be looking for - that IS one of the questions I'm asking here.  Any ideas?

 

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I understand what you previously stated.  There is a difference between a cross claim and a counterclaim.  In the post I addressed, you mentioned cross claim.  You do not have a cross claim because you are the only defendant.  A claim against the opposing party would be a counterclaim.  

Well, you say you understand, but when you type this, I'm not sure that you do!  So let's just take it one statement at a time:

1. "There is a difference between a cross claim and a counterclaim." Yes - I agree...counterclaims go against the unnamed big bank (the plaintiff), cross-claims go against other parties (counsel to the plaintiff and any other such parties related to the suit).

2. "In the post I addressed, you mentioned cross claim." Yes, that is correct!

3. "You do not have a cross claim because you are the only defendant." No - that's wrong.  Cross-claims go against parties OTHER THAN the plaintiff, in this case, FDCPA claims go against Counsel to the Plaintiff, who becomes a co-party.

4. "A claim against the opposing party would be a counterclaim." No - that's wrong.  A claim against THE PLAINTIFF would be a "counterclaim."  A claim against ANY OTHER PARTY (than the plaintiff), would be a "cross-claim."  In this case, it's a FDCPA violation against the Counsel to the Plaintiff, so FDCPA violations (in my state) are CROSS-CLAIMS!

Does that clear things up for you @BV80?  Just let me know where any confusion still exists!

Edited by Helplessly Lost
fixing typo
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By the way @BV80 and @WhoCares1000 - I've been dying to post my entire saga here and how all my cases ended up...but it's just so much to write up.  It really is a tale about how an unexpected illness actually ended up saving me from my crushing CC debts!  And I would say to anyone out there reading this:

The MOST IMPORTANT thing anyone can do WHEN YOU RECEIVE ANY COLLECTION NOTICE (especially from a JDB) is IMMEDIATELY CALL AN FDCPA ATTORNEY and send it to them.  Don't mess around with other attorneys (like Debt or Bankruptcy attorneys), take that notice as fast as possible to a SPECIFIC FDCPA attorney and see what they say about the notice.  They'll likely find violations you never had any idea existed and if so, can most likely get your debt reduced, completely forgiven, and even possible get you an award, depending on how bad the violations are.  And I was once even told (by a bankruptcy attorney) that "FDCPA violations are not worth pursuing"...and I found out later that that advice was dead wrong.  Never underestimate the power of the FDCPA - talk to an FDCPA attorney as soon as you get any collection notice, even if the debt is 100% legit!

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3 minutes ago, Helplessly Lost said:

3. "You do not have a cross claim because you are the only defendant." No - that's wrong.  Cross-claims go against parties OTHER THAN the plaintiff, in this case, FDCPA claims go against Counsel to the Plaintiff, who becomes a co-party.

Have you read your rules regarding cross claims and counterclaims?   For instance, do the rules specify “co-party” and “opposing party”?  If they do, then that means the rules consider co parties and opposing parties to be different.  The attorney might be the plaintiff’s co party, but he would be YOUR opposing party.   Therefore, the rules would show that claims against an opposing party are referred to as counterclaims.

In addition, you would need to find the rule that allows you to add another plaintiff.

Since I do not know your state of residence, I cannot look up your rules or research your courts’ rulings.

In regard to the “FTC act”, if you are referring to 15 USC §45 which protects consumers against unfair or deceptive acts, courts have ruled that there is no private right of action for violations of the act.  Here is a ruling from the 10th Circuit Court of Appeals.

The district court correctly ruled that there is no private right of action under the FTC Act.  Olds v. Bank of America, 573 F. App'x 710, 711 (10th Cir. 2014)

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@BV80 - Hmm, you seem a bit hung up on how CROSS-CLAIMS work, so I'm not sure what to tell you.  But I'm telling you I've been defendant in suits where precisely what I'm saying here was the case.  I (with my FDCPA attorney) have brought cross-claims against Counsel to the Plaintiff in this manner in the past AND WON (...well, rather, they settled).  So I'm not really sure what you need to look up...but upon a quick check (ie Google Search), it looks like this is how it works in several states (at least).  So, what exactly is the confusion here and what is your overall point about this?  You seem to be wanting to correct me (or something), but this is DEFINITELY how it works in my state...I know that for a fact - 100% certain...I'm not sure what else to say about it.  The bottom line is that Counsel to the Plaintiff sent the Initial Collection Notice, so FDCPA claims go against them...ergo it's a cross-claim...it's plain and simple really!
 

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In regard to the “FTC act”, if you are referring to 15 USC §45 which protects consumers against unfair or deceptive acts, courts have ruled that there is no private right of action for violations of the act.  Here is a ruling from the 10th Circuit Court of Appeals.

The district court correctly ruled that there is no private right of action under the FTC Act.  Olds v. Bank of America, 573 F. App'x 710, 711 (10th Cir. 2014)

Well, that's good information to know and interesting - not sure it answers my question though.  Again, as I stated, I've ONLY READ (on this forum for one) that you CAN bring FTC violations in your counterclaim.  But I'm unsure of what exactly I should be looking for - that IS one of the questions I'm asking here.  I guess you're saying that's one of the things I CANNOT bring a counterclaim for, but I'm sort of asking the reverse of that answer.  Again, the questions is: What (if any) are the FTC violations that I CAN bring counter-claims for?  And especially in regards to unnamed big bank, are there any FTC (and/or FRCA) rules they commonly violate that I SHOULD be looking for?

Does that all make sense @BV80?

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9 minutes ago, Helplessly Lost said:

Hmm, you seem a bit hung up on how CROSS-CLAIMS work, so I'm not sure what to tell you.  But I'm telling you I've been defendant in suits where precisely what I'm saying here was the case.  I (with my FDCPA attorney) have brought cross-claims against Counsel to the Plaintiff in this manner in the past AND WON (...well, rather, they settled).  So I'm not really sure what you need to look up...but upon a quick check (ie Google Search), it looks like this is how it works in several states (at least).  So, what exactly is the confusion here and what is your overall point about this?  You seem to be wanting to correct me (or something), but this is DEFINITELY how it works in my state...I know that for a fact - 100% certain...I'm not sure what else to say about it.  The bottom line is that Counsel to the Plaintiff sent the Initial Collection Notice, so FDCPA claims go against them...ergo it's a cross-claim...it's plain and simple really!

Then you should contact that attorney for advice. I can offer no further information when I do not know your state of residence.  
 

9 minutes ago, Helplessly Lost said:

Well, that's good information to know and interesting - not sure it answers my question though.  Again, as I stated, I've ONLY READ (on this forum for one) that you CAN bring FTC violations in your counterclaim.  But I'm unsure of what exactly I should be looking for - that IS one of the questions I'm asking here.  I guess you're saying that's one of the things I CANNOT bring a counterclaim for, but I'm sort of asking the reverse of that answer.  Again, the questions is: What (if any) are the FTC violations that I CAN bring counter-claims for?  And especially in regards to unnamed big bank, are there any FTC (and/or FRCA) rules they commonly violate that I SHOULD be looking for?

The only other “FTC Act” would be the FDCPA.  As far as other federal consumer acts, there are the Truth in Lending Act, the Fair Credit Billing Act, and the FCRA. 

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@BV80 
 

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Then you should contact that attorney for advice.  

Well, I don't need advice on HOW to file against the parties in this case (be they cross-claims or counterclaims).  That was never a question I was asking in the first place...I think you brought that up, because you thought I was wrong about something here and wanted to point it out....I guess.  Again, I'm not sure what your whole point was here, but we've certainly spent a lot of time going round and round, while avoiding the really important questions here!  Wouldn't you say?
 

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The only other “FTC Act” would be the FDCPA.  As far as other federal consumer acts, there are the Truth in Lending Act, the Fair Credit Billing Act, and the FCRA.

Ok, what would be common violations I would normally bring against an OC (or unnamed big bank specifically) under the Truth in Lending Act, the Fair Credit Billing Act, and/or the FCRA?

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Really...is that true though?  What if the creditor closed the account because the OC found out that I'm African American or Chinese or something like that.  Would that be legal?  The point being, there are a slew of reasons why a creditor would not be able to close an account, because it violates other parts of the law for example...so it feels like that clause is unenforceable in court. 

OK, let me revise that, they can take any action that is not discriminatory against a protected class. Closing an account because a debtor defaulted on other accounts is not discriminatory unless you can prove that they performed that action against only certain classes of people (a very tough hill to climb). This is the same way that a store can require that you wear a mask even if state law does not require it or a school can reserve certain seats for people from lower economic classes as a was to integrate. All they would have to prove is that race (or any other protected class grouping) is not a factor in those decisions which is very easy for them to do.

 

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n my state, they are required to send a very specific initial collection letter that does not contain any validation information.  From there, you have the right to dispute.  In that case, under 15 USC 1692g § 809, they are required to send you validation within 5 days.  Not sure how it works in other states.  My lawyer on a previous collection case told me this, so I'm 100% confident it is correct.

Then the action might be one with state law but it might not be one with Federal Law against the OC because OC's are still exempt from Federal Law. As for the cross-claim, you would have to prove that the law firm purchased the debt, not that they simply represent the plaintiff in court. That is highly doubtful in this case so you would not have a right to do a cross claim rather you would have to do a separate suit.

Also, if you have an attorney advising you, why are you coming to boards like this? Go talk to the attorney. They would know quite a bit more than us lay people.

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Ok, what would be common violations I would normally bring against an OC (or unnamed big bank specifically) under the Truth in Lending Act, the Fair Credit Billing Act, and/or the FCRA?

If you can bring a private right of action for other financial rules, then yes, you can include them as counter claims. However, like the FDCPA, most of these laws have a very short Statute of Limitations (usually 1 year from violation) so you have to be careful with that too. Google is your friend when it comes to determining private right of action for the various consumer laws.

 

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That's the trick...pretty sure I don't have it.  Requesting it won't work in County Court.  If it was District Court, I would be able to compel it as part of the Discovery theoretically.  But because this is County Court, there is limited discovery, so  I would have to make a request to the judge to get full discovery, or I would have to move to district court to be able to compel discovery to get the old agreement from them.  And even then, would they give it to me or just tell me it's been lost now?

If the county court is a small claims court (which I suspect it is), then you can simply follow the process and if a judgement is issued, you can probably request a trial de novo at the district court level as long as you pay the court fees. That would set aside the county court case as if it never happened and you would redo the case in district court. Look at your state rules on that however.

It sounds like you have an attorney advising you in these matters though. I would suggest that you pose these questions to your attorney who would be able to give you a better answer than we would. We are not attorneys here (for the most part). Our advise is like getting advise from some random person at the street corner and should be taken as such.

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@WhoCares1000
 

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Then the action might be one with state law but it might not be one with Federal Law against the OC because OC's are still exempt from Federal Law. As for the cross-claim, you would have to prove that the law firm purchased the debt, not that they simply represent the plaintiff in court. That is highly doubtful in this case so you would not have a right to do a cross claim rather you would have to do a separate suit.

This quote is dead wrong!  ANYONE who sends a collection notice (other than the OC) can be prosecuted under the FDCPA, including Counsel to the Plaintiff (even when the plaintiff is an OC).  This fact SAVED me the first time I was sued by an OC.  It's AMAZING TO ME that so many people on this forum don't seem to understand that fact!

 

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Also, if you have an attorney advising you, why are you coming to boards like this? Go talk to the attorney. They would know quite a bit more than us lay people.

Did you forget?  I'm trying to do this one WITHOUT the costs of an attorney this time - please feel free to reread my original post, I think you've forgotten the backstory here!


 

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If you can bring a private right of action for other financial rules, then yes, you can include them as counter claims. However, like the FDCPA, most of these laws have a very short Statute of Limitations (usually 1 year from violation) so you have to be careful with that too. Google is your friend when it comes to determining private right of action for the various consumer laws.

This is not helpful...you avoided the real question completely.  I wasn't ask "IF" I could do it, I was asking "What are those common violations?"  And if one thing is abundantly clear here - you don't seem to have any idea what those are...


 

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If the county court is a small claims court...

 ** BIG SIGH ** - No...but I think you should stop trying to give legal advice here @WhoCares1000 ...thanks for your help and all, but I need correct information, not a bunch of wild guesses...


Can anyone on this forum with **actual knowledge** of court procedures help here?

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1 minute ago, Helplessly Lost said:

Can anyone on this forum with **actual knowledge** of court procedures help here?

NO.  You steadfastly REFUSE to disclose what state this is in or any details that make that possible.  Add to that your arrogant argumentative narcistic nature and I doubt anyone here is going to go to any great lengths to assist you.

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NO.  You steadfastly REFUSE to disclose what state this is in or any details that make that possible. 

Wow - the anger here - LOL!!  If you actually read the thread, I've told people everything they need to know here.  Again the original question:

Should I file the "Motion to Consolidate" first by itself (which IS ALLOWED in my state) or should I file the "Answer" with it?  Or does it make sense to file a different motion completely (like to dismiss)?  You don't necessarily NEED to know the state I'm in to give a general answer on strategy @Clydesmom and these people aren't actual lawyers anyway, so I wouldn't take any information you find in this forum as legal advice.

 

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Add to that your arrogant argumentative narcistic nature and I doubt anyone here is going to go to any great lengths to assist you.

That's interesting...I explain to people how the law works and I'm the one that's being argumentative???  Gosh...I'm not sure what to say...

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NO.  You steadfastly REFUSE to disclose what state this is in or any details that make that possible. 

Also, I'm not looking for someone to Google something real quick and then post some generic answer they found on this board, just so they can get their numbers up in this forum @Clydesmom.  Rather, I was hoping someone with REAL EXPERIENCE in defending a case like this could discuss what their knowledge of what the correct strategy for defending yourself successfully might be.  Is that too much to ask?

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1) Going to an internet board for legal advice is akin to going to some random person on the street corner for legal advice. You don't know what you are getting is correct and you have no assurance that it is correct. You also have no legal recourse if the advice is not correct.

2) In French-Canadian society, the saying was "If you want it legal, go to a notary." The same advice applies here. If you want competent legal advice, go to an attorney.

3) Although we can figure out who the OC is that you are talking about (you are not being that cagey), it is a little difficult to figure out the state. I have some guessed but apparently according to you, my guesses are bad anyways so who know. Being that, some board members might not be in tune with all the legalities of your state just as I would not expect you to know the legal and court quirks in Minnesota.

4) Maybe what you are asking for and saying is wrong, is not advice you will get from this board anymore because those that have tried what you want to do before have had their derriers handed back to them on a silver platter and they have not come back to report that.

5) I told you to use Google because if you are going to go it alone, you had better be able to research the answers to you questions, both in this board and outside this board. You are going to try some stuff that you have better know your case law on because you will probably have to state your legal backing to a judge at some point.

6) I am suggesting that you bring in a lawyer for this case, particularly the one that gave you the advice you are basing your opinions are. Let that attorney put his money where his mouth is and we will see if the opinions hold up when their bar license is on the line.

7) Finally, and this is important to say, you probably do owe the OC a certain amount. Most people who come to this board do owe their creditors. Some have had real issues (such as yourself) and other simply do not want to pay them. I am not judging you on that but it has to be put out there that you borrowed the money and now the OC wants their money back according to the contract you agreed to. Now, there might be some unresolved disputes that would be up to a judge to decide but that is it (unless you can prove some reason that you really don't owe any money such as identity fraud).

With all that said, obviously you don't want my advice. That is fine, I am a big boy and can take rejection. I will simply move on because I really have nothing more to add to this topic. I just have to ask this. Win, Lose, or Draw, I would like for you to come back and report how things turned out.

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One problem is it is very difficult to figure out what the OP is trying to convey.  The OP keeps saying he's given all the information we need to help him, but we really don't have the information.  Everyone seems to be rather confused.

From what I can tell, the OP's attorney did well in a case doing something or other.   I think it had something to do with claims against the lawyer or FTC or the FDCPA. Supposedly there is some law in this state about 5 days, except we don't know the state or the law.  The only law quoted appears to be completely different from what the OP says.  

Anyway, people aren't helping the OP, and the OP isn't very happy.  

There are several possibilities:

1. The OP is making everything up.  Not likely, but possible.

2. The OP's attorney did something in another case that helped a lot, but the OP doesn't understand what it was and is hoping the rest of us can figure out something to make this all go away.  

3. The OP does know what the attorney did, but either can't or won't communicate what it was to us, and won't explain why it is or isn't applicable to this case.   

As far as I can tell, the OP is trying to get a list of what the attorney or BOA or whoever may have possibly done wrong, without any ideas as to what they could have done wrong.  And something something about 5 days that nobody here can make any sense out of.  

As far as my answer, it looks like the OP is trying to find a magic bullet to make BOA go away.  AFAIK, no such magic bullet exists.  If there were very clear violations by the BOA attorney, perhaps a deal could be made with the attorney to drop charges against the attorney in exchange for the BOA charges going away.  I have done this in arbitration, but never in court.  

 

So I will give the advice I would give to anyone facing BOA:

If you have legitimate counter claims against BOA, file a counter claim.   I once had a truly legitimate claim against an OP, and that worked wonders, but I have never heard of any OP doing the same thing with anyone else.  The OP sent a truly false letter in collecting the debt that was enough to get their attorney to drop the case.  

If you have legitimate claims against the attorney, then maybe work out a deal where you drop the claims and they drop the case.  As I mentioned, that worked for me once.  But I had legitimate claims against the attorney.   

If neither, your choices are to fight this out and almost certainly lose, settle, BK, or find some way to make yourself judgment proof.  

 

 

 

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