Please review this document motion to strike/grounds for defense/counterclaim/etc

[beeboah]

I have spent a few days on this document. Could some of you chime in?

I am not done, because I keep going back to change things, but this is where it sits.

I need some stronger counterclaims and I have no idea who to sue. Do I so all of them for FDCPA violations?

What else can I sue for?

Thanks for all.

[masterduke]

Beeboah, Way to kick some debt attorney whazoo! My only concern is, if there is ANY indication that this so-called debt may have belonged to you, the jerk debt attorney will jump on that to move for summary disposition/judgement. So be careful of any sentence structure those two creeps(attorney/judge) could use to jab you with. They will stoop to anything to get a "win". You want this dismissed with Prejudice so this debt attorney can not come back after you.

[beeboah]

Masterduke

Thank you.

I was just about to move on from this since no one said anything I figured it was pretty good.

Do you see something in there where I am admitting that the debt is mine?

I figure you might be looking at where I said "admit".

The only admission there is where I live in the County they say that I do.

Is that what you meant?

Thanks for taking the time to comment!

[masterduke]

I did not know what the question that you had answered "admitted"(even there, what is their point in getting you to affirm your place of residence?) be careful. They are super creeps and you would be amazed at what they can construe as the "hook" they need to slam you with(both the attorney and judge)???? You need to think about that answer in the entire context of what is taking place here. Would this addmission be all they would need to shoot down your entire arguement? From personal experince, the one admission my wife submitted in her answer to wolpoff was, eventually all the judge needed to find in wolpoffs favor. Regardless of the myrid of evasive answers/lies/ that they had sent us during the discovery phase.

[beeboah]

Originally Posted by masterduke

I did not know what the question that you had answered "admitted"(even there, what is their point in getting you to affirm your place of residence?) be careful. They are super creeps and you would be amazed at what they can construe as the "hook" they need to slam you with(both the attorney and judge)???? You need to think about that answer in the entire context of what is taking place here. Would this addmission be all they would need to shoot down your entire arguement? From personal experince, the one admission my wife submitted in her answer to wolpoff was, eventually all the judge needed to find in wolpoffs favor. Regardless of the myrid of evasive answers/lies/ that they had sent us during the discovery phase.

Thank you VERY MUCH for this warning.

What would you suggest when they state "upon information and belief the Defendant is a residance of Wally World, VA"

So could I just fall silent to that paragraph?

Thanks!!

[Judge Roy Bean]

You need to get a copy of your local court rules before submitting that response. First, you can't set a date and time for anything in your motions. Generally, in many jurisdictions, you file a separate request motion for a hearing on your original motion and make sure your opposing counsel is served with it - some allow US mail, others require physical service. The court will then set the hearing on the docket and notify the parties.

Just a comment on organizing it, The titles should be numbered (Roman numerals) and placed just before their respective parts of the response, not as a list at the top, and all paragraphs relevant to each should be numbered to make it easy for everyone to reference them. But again, check your local rules.

Don't over-provide information; a response should be very limited to the claims the plaintiff makes - each of those should be a simple denial or admit or as you've used, a sentence indicating you don't have sufficient information on which to answer. Your counter-claims might even be organized as "affirmative defenses," itemized in their own paragraphs and not blended in.

The more specific and clear your paragraphs are, the more likely you can successfully defend them.

The phrase "upon information and belief" is commonly used to indicate that the claimant does not yet have physical evidence to firmly state that an allegation is a matter of fact. It's much like "as far as we know."

As to your other questions about counter-claims, in these cases the relief under the act limits it on a per-instance basis. If there are other damages as a result of the actions of the plaintiff, you have to itemize them and provide evidence of your alleged losses. One of the more common attempts is to demonstrate that the alleged debt has damaged your credit rating and you paid more in interest for some other transaction, but you've indicated they haven't reported it.

Also, you can't recover legal expenses for being your own attorney or for your time spent in court.

All of this hinges, however, on whether or not you actually obtained goods or services using the card. If you did, and they think you have resources or assets, they may expend the effort to actually come up with the evidence to obtain a judgment. At this stage, they may not have anything but the computer record of the account and evidence that they bought it.

The 1099 issue depends on whether or not the issuer "forgave" the debt. Only if they negotiated something with you and reduced it is a 1099 involved. When they sell it for collections, they aren't forgiving it. They take a book loss against income on the difference between the balance owed and what the debt buyer paid for it. Legally, what you have is a new, smaller debt owed to the buyer. Again, if you negotiate with them and they reduce it, they can issue a 1099 for the difference.

Finally, most of these firms won't waste their time on squeezing blood out of a turnip. Some of them will simply withdraw (ask for a dismissal) or let it die a slow death on its own (dismissed for want of prosecution).

Good luck!

[beeboah]

Originally Posted by Judge Roy Bean

You need to get a copy of your local court rules before submitting that response. First, you can't set a date and time for anything in your motions. Generally, in many jurisdictions, you file a separate request motion for a hearing on your original motion and make sure your opposing counsel is served with it - some allow US mail, others require physical service. The court will then set the hearing on the docket and notify the parties.!

I was wondering about that. I got this idea off of the legal aid site, so I never questioned it. All of my other motions have been in the context you describe.

Originally Posted by Judge Roy Bean

Just a comment on organizing it, The titles should be numbered (Roman numerals) and placed just before their respective parts of the response, not as a list at the top, and all paragraphs relevant to each should be numbered to make it easy for everyone to reference them. But again, check your local rules.!

Thanks for this. I am going by what I have done in previous filings and haven't had any problems. The attorney does it like this to. I'll check into it though.

Originally Posted by Judge Roy Bean

Don't over-provide information; a response should be very limited to the claims the plaintiff makes - each of those should be a simple denial or admit or as you've used, a sentence indicating you don't have sufficient information on which to answer. Your counter-claims might even be organized as "affirmative defenses," itemized in their own paragraphs and not blended in..!
The more specific and clear your paragraphs are, the more likely you can successfully defend them.

Thank you.

Originally Posted by Judge Roy Bean

The phrase "upon information and belief" is commonly used to indicate that the claimant does not yet have physical evidence to firmly state that an allegation is a matter of fact. It's much like "as far as we know."

Are you saying that I have misused that phrase? Thanks

Originally Posted by Judge Roy Bean

As to your other questions about counter-claims, in these cases the relief under the act limits it on a per-instance basis. If there are other damages as a result of the actions of the plaintiff, you have to itemize them and provide evidence of your alleged losses. One of the more common attempts is to demonstrate that the alleged debt has damaged your credit rating and you paid more in interest for some other transaction, but you've indicated they haven't reported it.

Well they reported it then withdrew it, maybe I need to go back to when they withdrew it.

Originally Posted by Judge Roy Bean

Also, you can't recover legal expenses for being your own attorney or for your time spent in court.

Thanks for the warning.

Originally Posted by Judge Roy Bean

All of this hinges, however, on whether or not you actually obtained goods or services using the card. If you did, and they think you have resources or assets, they may expend the effort to actually come up with the evidence to obtain a judgment. At this stage, they may not have anything but the computer record of the account and evidence that they bought it.

Interesting, what makes them *think* that you have the resources or assets in the first place. That is what I am sooooo curious about.

Originally Posted by Judge Roy Bean

The 1099 issue depends on whether or not the issuer "forgave" the debt. Only if they negotiated something with you and reduced it is a 1099 involved. When they sell it for collections, they aren't forgiving it. They take a book loss against income on the difference between the balance owed and what the debt buyer paid for it. Legally, what you have is a new, smaller debt owed to the buyer. Again, if you negotiate with them and they reduce it, they can issue a 1099 for the difference.

Finally, most of these firms won't waste their time on squeezing blood out of a turnip. Some of them will simply withdraw (ask for a dismissal) or let it die a slow death on its own (dismissed for want of prosecution).

Good luck!

Thanks for all of this and Godbless.

[beeboah]

just wanted to let you know where I am coming from in my putting the notice of hearing within the context of the motion.....

Please take a look on page 2.

http://www.lsnv.org/Adequacy_Bill_Motion_Strike.doc

Thank you.

[charlesa6]

Originally Posted by Judge Roy Bean

You need to get a copy of your local court rules before submitting that response. First, you can't set a date and time for anything in your motions. Generally, in many jurisdictions, you file a separate request motion for a hearing on your original motion and make sure your opposing counsel is served with it - some allow US mail, others require physical service. The court will then set the hearing on the docket and notify the parties.

Just a comment on organizing it, The titles should be numbered (Roman numerals) and placed just before their respective parts of the response, not as a list at the top, and all paragraphs relevant to each should be numbered to make it easy for everyone to reference them. But again, check your local rules.

Don't over-provide information; a response should be very limited to the claims the plaintiff makes - each of those should be a simple denial or admit or as you've used, a sentence indicating you don't have sufficient information on which to answer. Your counter-claims might even be organized as "affirmative defenses," itemized in their own paragraphs and not blended in.

The more specific and clear your paragraphs are, the more likely you can successfully defend them.

The phrase "upon information and belief" is commonly used to indicate that the claimant does not yet have physical evidence to firmly state that an allegation is a matter of fact. It's much like "as far as we know."

As to your other questions about counter-claims, in these cases the relief under the act limits it on a per-instance basis. If there are other damages as a result of the actions of the plaintiff, you have to itemize them and provide evidence of your alleged losses. One of the more common attempts is to demonstrate that the alleged debt has damaged your credit rating and you paid more in interest for some other transaction, but you've indicated they haven't reported it.

Also, you can't recover legal expenses for being your own attorney or for your time spent in court.

All of this hinges, however, on whether or not you actually obtained goods or services using the card. If you did, and they think you have resources or assets, they may expend the effort to actually come up with the evidence to obtain a judgment. At this stage, they may not have anything but the computer record of the account and evidence that they bought it.

The 1099 issue depends on whether or not the issuer "forgave" the debt. Only if they negotiated something with you and reduced it is a 1099 involved. When they sell it for collections, they aren't forgiving it. They take a book loss against income on the difference between the balance owed and what the debt buyer paid for it. Legally, what you have is a new, smaller debt owed to the buyer. Again, if you negotiate with them and they reduce it, they can issue a 1099 for the difference.

Finally, most of these firms won't waste their time on squeezing blood out of a turnip. Some of them will simply withdraw (ask for a dismissal) or let it die a slow death on its own (dismissed for want of prosecution).

Good luck!

You are right on the money, JRB. No doubt. Good advice, and input.

[masterduke]

Originally Posted by beeboah

Thank you VERY MUCH for this warning.

What would you suggest when they state "upon information and belief the Defendant is a residance of Wally World, VA"

So could I just fall silent to that paragraph?

Thanks!!

I think that failure to answer a question may be then seen as an admission?? But I'm not sure(senior moment lol). Also "Upon information and belief" is a statment that can be used as much as you need it in your reponses. You will see if/when you send them interrogs, how many times they will use repeated statements to answer your questions. Stuff like "This falls out of the realm of permissable discovery"! You try to use that line and watch the blob on the bench lite up like a roman candle! But its O.K. for Mr. debt attorney to use this and lots of other evasive answers. JRB is right about not voluntering too much info. As brief and as non reveling, while "answering" their question/traps they have sent. Remember, this is all vomiting out of some 'canned' computer debt collector software with some dope paralegal churning out the same crap day after day. It is nothing more than a system of traps set to snag as many victims as possible. Don't get discourged!