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Can plaintiff amend his original claim and balance at summary judgement stage?


cubschicago
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If the original claim was initially based on a total of 54 statements, but later during the summary judgment stage, the plaintiff decides to amend it to include only 50 statements because they acknowledge that the last four were not sent to the defendant's registered address, could this raise concerns about fairness and transparency in the legal proceedings? What legal defenses might be available for the defendant in such a situation? Can the defendant compel the plaintiff to dismiss the case and file a new complaint? Is it necessary for the plaintiff to file a motion for leave to amend the complaint at the summary judgment stage? Are there any relevant case examples or legal defenses that the defendant could explore in similar situations? Greatly appreciate all help!

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22 hours ago, cubschicago said:

If the original claim was initially based on a total of 54 statements, but later during the summary judgment stage, the plaintiff decides to amend it to include only 50 statements because they acknowledge that the last four were not sent to the defendant's registered address, could this raise concerns about fairness and transparency in the legal proceedings?

Quite the opposite.  If they are amending the complaint based on an error the OC made that is completely transparent and fair.  They are reducing the amount they are seeking not increasing it.  There is nothing illegal about it.

22 hours ago, cubschicago said:

What legal defenses might be available for the defendant in such a situation?

None that I can think of but feel free to consult a consumer attorney.

22 hours ago, cubschicago said:

Can the defendant compel the plaintiff to dismiss the case and file a new complaint?

The defendant can certainly try but I wouldn't hold my breath for success.  You can file a motion for anything it doesn't mean it has legal basis or will succeed.

22 hours ago, cubschicago said:

Is it necessary for the plaintiff to file a motion for leave to amend the complaint at the summary judgment stage?

Yes.  If they intend to amend the complaint in any way they are required to motion for the changes.  As long as it is done before a verdict is rendered and the Defendant has sufficient time to respond to their motion it is legal and within the rules of civil procedure.

 

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  • 2 weeks later...
On 2/3/2024 at 4:26 PM, Clydesmom said:

Quite the opposite.  If they are amending the complaint based on an error the OC made that is completely transparent and fair.  They are reducing the amount they are seeking not increasing it.  There is nothing illegal about it.

None that I can think of but feel free to consult a consumer attorney.

The defendant can certainly try but I wouldn't hold my breath for success.  You can file a motion for anything it doesn't mean it has legal basis or will succeed.

Yes.  If they intend to amend the complaint in any way they are required to motion for the changes.  As long as it is done before a verdict is rendered and the Defendant has sufficient time to respond to their motion it is legal and within the rules of civil procedure.

 

 Is it possible to file a lawsuit against a debt collector under FDCPA §1692(e) for misrepresentation if they request a different amount than the original debt stated in the initial pleadings, at the stage of summary judgement? Thanks!

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1 hour ago, cubschicago said:

Is it possible to file a lawsuit against a debt collector under FDCPA §1692(e) for misrepresentation if they request a different amount than the original debt stated in the initial pleadings, at the stage of summary judgement? Thanks!

It would entirely depend on WHY the amount was changed.  If it was to inflate the amount they are awarded that would be a violation.  If they are correcting an error then it would fall under the bonafide error exception in the FDCPA and would not be a violation.  Another reason would be sometimes a creditor wants to pursue the case in small claims vs. state court and chooses to sue for less than the total amount owed to stay in the lower court.  That would not be a violation either.  

Another thing to keep in mind is that if a law firm does commit an FDCPA violation pursuing a suit against a consumer all the creditor/JDB does is fire that firm and use another one forcing the consumer to abandon a counter claim.  Also the maximum award in an FDCPA violation is $1500.  If the debt is more than that the creditor will many times just continue and deduct the amount the consumer wins from the amount they are owed.  It does not mean they will just walk away from the suit.

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