Filing ammended answer to complaint

[poorbastard42]

OK, when I filed my original answer to complaint from a JDB suing me for an old CC account, I didn't include any affirmitive defenses or counterclaims. Heck, I even forgot to ask for a dismissal. I am filing an ammended answer, including my affirmitive defenses, and praying for dismissal.
Now for the big question - if I can't prove any FDCPA violations, what can I use for counterclaims? Or should I just leave that out?

Thanks for your insight.

[TheBeeGuy]

The idea behind counter claims is for when you actually have FDCPA violations. If you have no violations, you therefore have no counter claim.

[poorbastard42]

Bump

[nascar]

Couldn't be much clearer than that. If you don't have a counterclaim, then you don't have a counterclaim. Sometimes, there simply isn't one.

[MG05]

Here is one: Ohio 1345.02 Unfair or deceptive acts or practices.
(A) No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction. Such an unfair or deceptive act or practice by a supplier violates this section whether it occurs before, during, or after the transaction.
__________________________________________________ _______________
SAMPLE PLEADING:

1. On information and belief the plaintiff is a company which is in the business of buying claims (Bad Debt Buyer) at very significant discounts to face value, and thus plaintiff has not been damaged in the amount of (ENTER AMOUNT) as alleged, because plaintiff has apparently purchased a charged-off claim at a considerable discount to the face value, paying for example 10% or less.

2. If plaintiff’s investment in the claim is negligible, for example (ENTER 10% OF AMOUNT) or less, it would be against public policy and an unconscionable commercial practice to allow the plaintiff to recover a much higher sum such as (ENTER AMOUNT).


__________________________________________________ _______________
4165.03 Injunctive relief.
(A)(1) A person who is likely to be damaged by a person who commits a deceptive trade practice that is listed in division (A) of section 4165.02 of the Revised Code may commence a civil action for injunctive relief against the other person, and the court of common pleas involved in that action may grant injunctive relief based on the principles of equity and on the terms that the court considers reasonable. Proof of monetary damage or loss of profits is not required in a civil action commenced under division (A)(1) of this section.

(2) A person who is injured by a person who commits a deceptive trade practice that is listed in division (A) of section 4165.02 of the Revised Code may commence a civil action to recover actual damages from the person who commits the deceptive trade practice.

(B) The court may award in accordance with this division reasonable attorney’s fees to the prevailing party in either type of civil action authorized by division (A) of this section. an award of attorney’s fees may be assessed against a plaintiff if the court finds that the plaintiff knew the action to be groundless. An award of attorney’s fees may be assessed against a defendant if the court finds that the defendant has willfully engaged in a trade practice listed in division (A) of section 4165.02 of the Revised Code knowing it to be deceptive.

(C) The civil relief provided in this section is in addition to civil or criminal remedies otherwise available against the same conduct under the common law or other sections of the Revised Code.

[poorbastard42]

Thanks MG05. I don't want to add a crossclaim if it doesn't have some kind of substance, don't want to risk P.O.ing the Judge!
Anybody else think this is legitimate enough to include?
Thanks.

[MG05]

Personally I would not worry about pissing off a judge. As long as you’re respectful and have decorum in the court you would be fine. I plan things with strategy and I don’t care if I win the counter claim, but the goal is to expose the debt buyer to the judge or possibly the jury. They now are on the defense to your allegation. Do you see all the pleadings you do to address the original complaint of the JDB? Well any counter claim they will have to do the same. What will they tell the court? This raises the stakes and opens many avenues to let discovery into the proceedings. Just as they are looking for you to slip up to get a summary judgment, you must look to get them on something. I wish you the very best and hope you prevail … I am not an attorney … don’t think like one and I go way outside the norm. Please don’t take my advice for anything but my way of looking at a situation.

[nascar]

Originally Posted by MG05

Personally I would not worry about pissing off a judge.

It has less to do with pissing off a judge than it does exposing yourself to monetary sanctions for filing a frivolous complaint. If that's the case, you can expect the other side to jump on the opportunity to make you pay.

Unless you have a good faith reason to believe that you have a legitimate cause of action, and have a decent argument as to why you do, you might want to think twice before filing a counterclaim.

[MG05]

Nascar thanks for the response ... I certainly don’t view that as a frivolous complaint nor a frivolous defense to a JDB suit. I have actually seen some well written pleadings to that effect. Check out the NCLC Manuals with Companion CD. I would counter your comments by saying that a suit by a JDB without any proper documentation is frivolous. I don’t see any JDB getting any monetary sanctions for the boilerplate crap they sue on. Even if the other side claims a frivolous complaint they still have to file pleadings and have a hearing on it. The reality is that lawsuits must be quite frivolous to warrant sanction by the court, and only inexcusable or dishonest conduct on the part of a party can support any personal sanction. Unfair and deceptive practices are laws not so detail specific that an argument of some merit and forethought would be viewed as egregiously frivolous. What most likely would happen is the judge would tell the pro se person this claim is without merit and end it before litigation began. Point being strategy … don’t always have to win a battle to win a war. Again, I think outside the box on some of the legal strategies and caution others to act on what they believe.

What I would tell the Judge at a hearing:

I am a common hard working person and not a legal professional. In researching the law that I based my counter complaint, I read it as a lay person would read it. I believe in my heart and soul that the person who wrote the law intended to protect the rights of people like me from unscrupulous and unfair actions. Certainly the court must view someone who is suing another party for $3000.00 plus interest and attorneys fees as unfair and deceptive when they only paid $300.00 for the debt that was in essence uncollectable. I would offer that it would be like buying a car at half price knowing the brakes were bad and then after you wreck (because of the faulty brakes) you go back a sue the seller for the blue book value of the vehicle. You purchased something at a significant discount knowing it was defective and now you want to be made whole. How could the court then rule that this is frivolous when it is certainly unfair and deceptive?

Plenty of ways to get the judge to listen to what you need to say. Again, the war not the battle.

[admin]

MG05 - you might want to take more heed to what nascar says - he's a practicing paralegal.

[MG05]

Originally Posted by admin

MG05 - you might want to take more heed to what nascar says - he's a practicing paralegal.

I respect the insight nascar brings to this site but forums are places where people agree to disagree. No disrespect to nascar or to anyone on this site.