Author Topic: No validation, ignored Discovery, dismissed w/o Prejudice!  (Read 1812 times)

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No validation, ignored Discovery, dismissed w/o Prejudice!
« on: October 21, 2011 01:47:31 AM »
Timeline of events:

1.   First communication from the JDB is a summons from their lawyer, which is answered within the timeframe allotted by my court.

2.   They sent a Discovery request (which was postmarked 20 days after the date on the Proof of Service document included in the packet).

3.   I answer their Discovery and send it to them CMRRR.

4.   I sent them my own request for Discovery which included my looking for validation of this alleged debt. They never respond.

5.   They file for dismissal without prejudice.

My question is, because I was never able to get any type of validation from them, can I ask for it now?

Is it too late to ask for validation if I never got the chance to before? [I never received a Dunning or any other letter from them indicating an attempt to collect this alleged debt, and they never answered my Discovery where I asked for proof of it either!]

After receiving my free (paper) credit reports I can see the total on the TL is even more now!  :o

Thank you!

KFMAN

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #1 on: October 21, 2011 01:58:14 AM »
If this was my issue, I would do a 623 dispute, to see if they verify and update their tradeline.  Since you ask for DV and they haven't sent it, if they verify and update their trade line, I believe you would have them on both FDCPA and FCRA violations.  You might also have them on a State Deceptive Practice act since they filed a Lawsuit without any proof of an account.

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #2 on: October 21, 2011 03:56:28 AM »
If this was my issue, I would do a 623 dispute, to see if they verify and update their tradeline.  Since you ask for DV and they haven't sent it, if they verify and update their trade line, I believe you would have them on both FDCPA and FCRA violations.  You might also have them on a State Deceptive Practice act since they filed a Lawsuit without any proof of an account.

I never did request validation prior to the lawsuit because I didn't even know about the company or the alleged debt.

The only time I asked for validation was during the Discovery phase of the suit.

If I initiate a 623 dispute while only having requested validation through the now dismissed lawsuit, would their updating the TL still be regarded as a violation? Or should I send an actual letter requesting validation, wait a couple of days, then initiate a 623?

Also, can anybody direct me to a general 623 letter I can begin working with?

As a side note, they increased the amount by several hundred dollars from the total they claimed in the lawsuit that they dismissed once they realized I wasn't going to roll over.

KFMAN

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #3 on: October 21, 2011 05:58:20 PM »
If I read the FDCPA right, once validation is requested, a CA must stop all collection activities until they contact the OC and receive it, and then send it to you.  That is why you need to do a 623 method, because if the verify and update their trade line, that is continue collection activity and they would be in violation. 

It's obvious they can prove the debt exit, so how can they prove they can have a tradeline or the amount listed on the tradeline is accurate?

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #4 on: October 21, 2011 06:14:52 PM »
I see, so my next step then is to dispute the TL with the CRA's correct?

If so, do I mail each CRA the same 623 dispute letter?

I've read enough about this JDB (and obviously dealt with them and their lawyer) to know they WILL verify the alleged debt.

When that happens, I draft both an ITS letter and a complaint and mail both to the JDB? I have every intention of following this through to court if necessary. It seems to be an FDCPA and an FCRA violation. Being in California, I wonder how Rosenthal factors in, if at all.

I appreciate your assistance.


Time2Fight

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #5 on: October 21, 2011 06:15:50 PM »
At that point must the OC/CA/JDB mark the debt in dispute?  Does it remain as in dispute from there on?

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #6 on: October 21, 2011 06:37:20 PM »
This particular TL, as I have two with them, is not marked in dispute because my validation request came in the form of a then active lawsuit against me. The other TL is marked disputed however. That is the one their lawyer pulled a hard inquiry almost two months after signing the green card on that DV!

My source of concern is the fact I never 'DV'd' them the usual way.

It feels like the proverbial rock and a hard place, because I didn't get a Dunning and demand validation, I did it during the Discovery phase which they ignored.

So, it's far past the 30 days I get to request validation, yet I did demand validation during the lawsuit!  1214.

From my understanding, if they verify it with the CRA without validating it for me, it's a violation and the TL does remain on your CR until you come to a mutual agreement to remove it. If they do not verify it within 30 days, I think it has to be removed. Please correct me if I am wrong.

Flyingifr

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #7 on: October 23, 2011 12:34:47 AM »
Timeline of events:

1.   First communication from the JDB is a summons from their lawyer, which is answered within the timeframe allotted by my court.

2.   They sent a Discovery request (which was postmarked 20 days after the date on the Proof of Service document included in the packet).

3.   I answer their Discovery and send it to them CMRRR.

4.   I sent them my own request for Discovery which included my looking for validation of this alleged debt. They never respond.

5.   They file for dismissal without prejudice.

My question is, because I was never able to get any type of validation from them, can I ask for it now?

Is it too late to ask for validation if I never got the chance to before? [I never received a Dunning or any other letter from them indicating an attempt to collect this alleged debt, and they never answered my Discovery where I asked for proof of it either!]

After receiving my free (paper) credit reports I can see the total on the TL is even more now!  :o

Thank you!
Translation: The JDB bought the debt but not the media or the proof needed for Court and tried to get a Default Judgment. It didn't work so they dropped the case and moved on to lower hanging fruit.

That is why I always suggest inserting a Counterclaim in the Answer -m that way they can't dismiss the suit until the Counterclaim is taken care of - usually by either cancelling the debt or sending you a check.

Expect another JDB to get this so now you know - INSERT A COUNTERCLAIM.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #8 on: October 23, 2011 12:40:09 AM »
Translation: The JDB bought the debt but not the media or the proof needed for Court and tried to get a Default Judgment. It didn't work so they dropped the case and moved on to lower hanging fruit.

That is why I always suggest inserting a Counterclaim in the Answer -m that way they can't dismiss the suit until the Counterclaim is taken care of - usually by either cancelling the debt or sending you a check.

Expect another JDB to get this so now you know - INSERT A COUNTERCLAIM.

This lawsuit came before I had learned anything at all.

I literally had no clue about what I was doing, and they probably would have gone away a lot quicker had I put in any affirmative defenses.

The only thing I did when I answered was file a denial. That's it.

A sick part of me is ready for it.

KFMAN

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #9 on: October 23, 2011 03:44:48 PM »
Translation: The JDB bought the debt but not the media or the proof needed for Court and tried to get a Default Judgment. It didn't work so they dropped the case and moved on to lower hanging fruit.

That is why I always suggest inserting a Counterclaim in the Answer -m that way they can't dismiss the suit until the Counterclaim is taken care of - usually by either cancelling the debt or sending you a check.

Expect another JDB to get this so now you know - INSERT A COUNTERCLAIM.
What Counterclaim would you insert?

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #10 on: October 23, 2011 07:50:36 PM »
What Counterclaim would you insert?

I think you were asking this of Flying, but if I were to do it all over again, I would have added that I want my $380 fees that I had to pay to simply file an answer!

I shouldn't be taking a loss like that because they didn't even have the proof to file right?

It's no loss to them to file and not have a counter claim to keep them from sneaking away into the night with their request for dismissal they never told me about.

Had I asked for my fees, I think they would have had to tell me about the request, and I would have had leverage to get it with prejudice instead.

Flyingifr

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #11 on: October 24, 2011 01:58:17 AM »
What counterclaim to insert? ANY FCRA or FDCPA violation will do. Also, in the even you prevail, a counterclaim for the costs of your defense would be appropriate, so a counterclaim for SOMETHING is always appropriate.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Morality of Debt? No one ever went to the Nether Regions for not paying a debt.

Founder of the Credit Terrorist Training Camp (Debtorboards)

BigSal

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #12 on: November 15, 2011 09:04:10 PM »
Timeline of events:

1.   First communication from the JDB is a summons from their lawyer, which is answered within the timeframe allotted by my court.

2.   They sent a Discovery request (which was postmarked 20 days after the date on the Proof of Service document included in the packet).

3.   I answer their Discovery and send it to them CMRRR.

4.   I sent them my own request for Discovery which included my looking for validation of this alleged debt. They never respond.

5.   They file for dismissal without prejudice.

My question is, because I was never able to get any type of validation from them, can I ask for it now?

Is it too late to ask for validation if I never got the chance to before? [I never received a Dunning or any other letter from them indicating an attempt to collect this alleged debt, and they never answered my Discovery where I asked for proof of it either!]

After receiving my free (paper) credit reports I can see the total on the TL is even more now!  :o

Thank you!

Not legal advice.  Not a lawyer.

If they dismissed it after the filing of the Answer and you did not consent to it being without prejudice, then that operates as an adjudication on the merits under many court rules.  Thus, if anyone ever tries again, file an affirmative defense of res judicata and move for sanctions.
If you need legal advice, go see a lawyer.

CleaningUp

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #13 on: November 15, 2011 09:10:45 PM »
You can argue that, but you may or may not get it.

From a more practical standpoint, it is unlikely that the original plaintiff will re-sue, more from the lack evidence to support his case than anything else.

If he does re-sue, it is likely that he has definitive evidence to establish his case and could easily argue that his initial dismissal was because evidence he though was available at the time turned out not to be.

As long as the issue is within SOL there remains the possibility of a a successful law suit.

BigSal

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Re: No validation, ignored Discovery, dismissed w/o Prejudice!
« Reply #14 on: November 15, 2011 09:32:06 PM »
From a more practical standpoint, it is unlikely that the original plaintiff will re-sue, more from the lack evidence to support his case than anything else.

If he does re-sue, it is likely that he has definitive evidence to establish his case and could easily argue that his initial dismissal was because evidence he though was available at the time turned out not to be.


Then I would argue that he should not have wasted the court's time with that lawsuit.

And then add the following (if in federal court (diff't in state court)):

"Voluntary dismissal by the plaintiff is available under F. R. Civ. P.
41(a)(1)(A)(i) if it is filed before “the opposing party serves either an answer or a motion
for summary judgment.” F. R. Civ. P. 41(a)(1)(A)(i). This rule has been “strictly
interpreted” by several courts of appeals including our own to “make clear that only an
answer or a summary judgment motion can extinguish a plaintiff's right to dismiss the
complaint without prejudice.” Manze v. State Farm Ins. Co., 817 F.2d 1062, 1066 (3d Cir.
1987) (listing cases)."

The defendant filed an answer thus extinguishing their right to a voluntary dismissal under the rule. 

If the strategy is to delay and increase costs, hitting them with a motion to dismiss before filing a general denial answer certainly accomplishes that goal.
If you need legal advice, go see a lawyer.

 

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