bfwizard

New help on loan company filing a motion for non-suit dismissal without prejudice

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Backstory is the (and timeline)  

1) loan company files a lawsuit

2) I answered the lawsuit and denied the claim (I am not a lawyer....I'm defending myself)

3) The loan company and  I agreeded on a very favorable settlement (and got the documention) and I payed the settlement

4) loan company filed a motion for non-suit and asked for a dismissal without prejuduce of the case (and failed to mention any settlement)

 

So...I have heard that I should shoot for dismissal with prejudice so there is no posbility I will see this again.

So My plan is to

1) object the motion "dismissal without prejudice" and provide the settlement letter that says it is considered payed in full    

 

My question is can I ask, in the objection, for the court "dismissal with prejudice" or do I just object, give the evidence, and then go ahead and file another motion  "dismissal with prejudice"

 

Again, I'm not a lawyer, so any advice would be helpful!!!!!

 

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You need to check your state and local rules of practice, but what I would do is respond to their motion, show evidence the case was settled, and you paid the settlement, so the proper outcome is dismissal WITH prejudice.  The case is settled and over.

I wonder if their strategy is they want to sell the balance to a JDB, who, if the case is dismissed without prejudice, would be able to sue you.  

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2 hours ago, nobk4me said:

You need to check your state and local rules of practice, but what I would do is respond to their motion, show evidence the case was settled, and you paid the settlement, so the proper outcome is dismissal WITH prejudice.  The case is settled and over.

I wonder if their strategy is they want to sell the balance to a JDB, who, if the case is dismissed without prejudice, would be able to sue you.  

Even if the balance is sold, res judicata would apply because the matter is settled. If they (or another JDB) tried to sue you, that would be the affirmative defense and could probably be a FDCPA violation on the subsequent JDB.

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17 hours ago, bfwizard said:

Backstory is the (and timeline)  

1) loan company files a lawsuit

2) I answered the lawsuit and denied the claim (I am not a lawyer....I'm defending myself)

3) The loan company and  I agreeded on a very favorable settlement (and got the documention) and I payed the settlement

4) loan company filed a motion for non-suit and asked for a dismissal without prejuduce of the case (and failed to mention any settlement)

 

So...I have heard that I should shoot for dismissal with prejudice so there is no posbility I will see this again.

So My plan is to

1) object the motion "dismissal without prejudice" and provide the settlement letter that says it is considered payed in full    

 

My question is can I ask, in the objection, for the court "dismissal with prejudice" or do I just object, give the evidence, and then go ahead and file another motion  "dismissal with prejudice"

 

Again, I'm not a lawyer, so any advice would be helpful!!!!!

 

When you paid the settlement amount, did they give you anything in writing that shows the agreed-upon amount (settlement amount) and states that the account has been settled and paid?  

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14 hours ago, WhoCares1000 said:

Even if the balance is sold, res judicata would apply because the matter is settled. If they (or another JDB) tried to sue you, that would be the affirmative defense and could probably be a FDCPA violation on the subsequent JDB.

Res judicata means there was a final adjudication  on the merits.  Absent a court ruling or dismissal with prejudice, there was no ruling on the merits, so res judicata would not apply.   Without prejudice would not allow for that defense,

However, if the OP has a settlement agreement that shows the JDB agreed on a settlement amount and that the OP paid that amount, the proper defense would be “accord and satisfaction”.   “Accord” means the parties agreed on a settlement amount and “satisfaction” means that the agreed-upon amount was paid.

That’s why I asked the OP if there was an agreement showing an amount that he paid.   If there is, he could easily prove that defense.  Also, when there is a settlement agreement, a JDB cannot sell the reminder as though the remainder is owed, because that remainder is not owed.  The settlement amount was all that was owed.   That’s the purpose of a settlement.

If the JDB were to sell the rest of the previous balance (not owed), the OP would not necessarily have an FDCPA claim against the new JDB due to the fact that the new JDB may have been sold the account under false pretenses.  He would need to consult an attorney.  In any case, settlement documentation would support a dismissal based on “accord and satisfaction”.  

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Thanks for all the responces.  So that is a bit more clear...

 

1) I do have a written settlement agreement

2) I payed the settlement

3) They sent me back a written doc that says " Please be advised the the above acount has now been settled in full"

4) then they filed a motion for non-suit and asked for a dismissal without prejuduce of the case (and failed to mention any settlement)

 

So should I oppose (object) this motion?  It seems with #3 saying it is settled,  even if it they(someone) filed suit again my defense would be "accord and satisfaction".  

Should I do nothing?  Are there unintended consquences of not getting dismissal with prejuduce?

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22 hours ago, BV80 said:

Res judicata means there was a final adjudication  on the merits.  Absent a court ruling or dismissal with prejudice, there was no ruling on the merits, so res judicata would not apply.   Without prejudice would not allow for that defense,

However, if the OP has a settlement agreement that shows the JDB agreed on a settlement amount and that the OP paid that amount, the proper defense would be “accord and satisfaction”.   “Accord” means the parties agreed on a settlement amount and “satisfaction” means that the agreed-upon amount was paid.

That’s why I asked the OP if there was an agreement showing an amount that he paid.   If there is, he could easily prove that defense.  Also, when there is a settlement agreement, a JDB cannot sell the reminder as though the remainder is owed, because that remainder is not owed.  The settlement amount was all that was owed.   That’s the purpose of a settlement.

If the JDB were to sell the rest of the previous balance (not owed), the OP would not necessarily have an FDCPA claim against the new JDB due to the fact that the new JDB may have been sold the account under false pretenses.  He would need to consult an attorney.  In any case, settlement documentation would support a dismissal based on “accord and satisfaction”.  

I have to stop posting stuff at 5am. You are correct that it would be accord and satisfaction.

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16 hours ago, bfwizard said:

Thanks for all the responces.  So that is a bit more clear...

 

1) I do have a written settlement agreement

2) I payed the settlement

3) They sent me back a written doc that says " Please be advised the the above acount has now been settled in full"

4) then they filed a motion for non-suit and asked for a dismissal without prejuduce of the case (and failed to mention any settlement)

 

So should I oppose (object) this motion?  It seems with #3 saying it is settled,  even if it they(someone) filed suit again my defense would be "accord and satisfaction".  

Should I do nothing?  Are there unintended consquences of not getting dismissal with prejuduce?

The only effect would be is if they did not report to the CRA saying satisfied for less than full amount. You would then have to dispute the tradeline and say that the debt was satisfied which could get messy depending on the stance the creditor/JDB takes.

As far as the scenario above, 10 years ago, I would have expected something like this to happen. I expect it less now because most JDBs have cleaned up their business. However, there are a few that still are unethical and might try to sue you. Again, you simply put accord and satisfaction as you affirmative defense, attach the agreement, and counterclaim for FDCPA violation. That would stop them in their tracks.

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1 hour ago, WhoCares1000 said:

I have to stop posting stuff at 5am. You are correct that it would be accord and satisfaction.

LOL!  I know what you mean.  😀

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On 5/9/2021 at 8:02 AM, BV80 said:

LOL!  I know what you mean.  😀

 

On 5/9/2021 at 6:42 AM, WhoCares1000 said:

The only effect would be is if they did not report to the CRA saying satisfied for less than full amount. You would then have to dispute the tradeline and say that the debt was satisfied which could get messy depending on the stance the creditor/JDB takes.

As far as the scenario above, 10 years ago, I would have expected something like this to happen. I expect it less now because most JDBs have cleaned up their business. However, there are a few that still are unethical and might try to sue you. Again, you simply put accord and satisfaction as you affirmative defense, attach the agreement, and counterclaim for FDCPA violation. That would stop them in their tracks.

So that I understand.....I shouldn't bother opposing (objecting) to their motion?

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3 hours ago, bfwizard said:

 

So that I understand.....I shouldn't bother opposing (objecting) to their motion?

You can if you want to. Whatever way the judge rules however, you should be all set because you settled the debt.

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