Author Topic: Going to sue Legal Assistant.  (Read 2923 times)

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innocentme

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Re: Going to sue Legal Assistant.
« Reply #15 on: April 04, 2012 10:42:53 PM »
I just finished my draft email to attorney representing the legal assistant.  Any comments prior to me sending?

Quote
Mr. Attorney:

I wanted to reach out to you, and your client to try to settle the above claim.  I called the courthouse to check and see if your client had answered the above suit.  I was informed over the phone that your client responded on 3/28/2012 and was denying the claim and demanding jury trial. 

As you are aware.  I have elected arbitration to resolve all disputes.  I sent this election to your firm in the letter dated 2/1/2012.  It was received by your firm on 2/2/2012.  Your client, MS. Missy, acknowledged and made reference to my letter in a signed letter she sent to me, dated 3/7/2012. 

I initiated my claim against MS. Missy in Small Claims court in response to her violations in connection with the alleged account, and the contract that governs it.  While the contract allows for a small claim exception to the binding arbitration, the case had to remain in small claims in order to avoid being subject to arbitration. 

Your removal of the case from small claims and into Circuit Court is a FDCPA violation once again. 

I will vigorously defend my rights, and will not allow you, your firm, or your client to continue to violate my rights under the law. 

If your client would like to settle this matter, I demand the following:

A certified check for the claim amount, filing fee, and service fee totaling $1,419.07 made out to "Innocentme".

In exchange, I will dismiss the case against your client, and will sign a release, that you can draft, to release MS Missy from any and all claims to date.

At this time, I am unaware of any response or counterclaims to the case filed, as the clerk just stated that MS Missy denied claim and demanded jury trial.  If your client did have any counterclaims, I would then ask for a mutual dismissal of all claims with prejudice. 

Thank you for your prompt attention to this matter. 

Innocentme
:whackacow2:
I am not an attorney.  I just love to know my rights, and to defend them at all costs.  Even if that means going on the offensive.  I'm always nice, until I'm not.

innocentme

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Re: Going to sue Legal Assistant.
« Reply #16 on: April 05, 2012 05:06:14 PM »
The attorney didn't like my email.  I received a response from him this morning. 

Quote
Dear innocentme,
 
Your offer is rejected.  The only acceptable resolution as to your filing regarding Ms. Missy is dismissal of your suit against her with prejudice and with a full release.  Removal of your suit to Circuit Court is our legal right and is not a violation of the FDCPA.
 
Regards,
 
Mr. Attorney

Looks like he doesn't want to settle this.   Looks like my JAMS complaint is going to get some new respondents. 
I am not an attorney.  I just love to know my rights, and to defend them at all costs.  Even if that means going on the offensive.  I'm always nice, until I'm not.

innocentme

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Re: Going to sue Legal Assistant.
« Reply #17 on: April 05, 2012 05:33:56 PM »
I am struggling with how to respond. 

I don't want to "educate" my opponent.  But, until he has the ah ha moment, he still thinks that he isn't doing anything wrong, and continues to not recognize the why behind my suits.

So no settlement will be had, until his eyes are opened up to his misdeeds. 
I am not an attorney.  I just love to know my rights, and to defend them at all costs.  Even if that means going on the offensive.  I'm always nice, until I'm not.

cprems

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Re: Going to sue Legal Assistant.
« Reply #18 on: April 06, 2012 12:06:44 AM »
If I have the story correct to date -

You elected and initiated in JAMS.

You filed suit - was this after a claim was forwarded to JAMS?

I'm not seeing the violation you are forwarding if you indeed filed suit post JAMS. This may be an unclean hands issue. You can't complain about them participating.

I'm having a hard time following your thinking. I understand about compelling them to JAMS but you are going to have a hard time convincing an arbitrator that they violated after you filed suit.

Can you explain your line of thinking.

AM I missing something here?

ALL my postings have NO legal value.

 I AM the "village idiot" please hold my posts to this standard.

 If you need legal Counsel - contact an Attorney.

innocentme

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Re: Going to sue Legal Assistant.
« Reply #19 on: April 06, 2012 12:27:26 AM »
I hope this clarifies.

CITI filed suit against me.

I immediately elected and initiated arbitration against CITI through their representative attorneys to resolve all disputes between us.

Collector attorney, and legal assistant violated FDCPA.

I filed a separate Small Claims suit against the legal assistant for the violations. 

Contract has a small claims exception, but it has to stay in small claims. 

By them removing it from small claims, and into circuit court, it was taking an action that they were not allowed to take, per the contract.
Quote
ARBITRATION
PLEASE READ THIS PROVISION OF THE AGREEMENT
CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE
RESOLVED BY BINDING ARBITRATION. ARBITRATION
REPLACES THE RIGHT TO GO TO COURT, INCLUDING
THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE
IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION,
A DISPUTE IS RESOLVED BY AN ARBITRATOR
INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES
ARE SIMPLER AND MORE LIMITED THAN COURT
PROCEDURES.
Small claims section.
Quote
What about Claims filed in Small Claims Court? Claims filed
in a small claims court are not subject to arbitration, so long
as the matter remains in such court and advances only an
individual (non-class, non-representative) Claim.
I am not an attorney.  I just love to know my rights, and to defend them at all costs.  Even if that means going on the offensive.  I'm always nice, until I'm not.

cprems

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Re: Going to sue Legal Assistant.
« Reply #20 on: April 06, 2012 12:44:12 AM »
It's going to be a stretch.

They are allowed to defend themselves, but I do see the theory behind it.

They should have chosen arbitration as the venue? Is this your theory?

The only upside I see here, would be you tolling any SOL for their violations.

You are going to be hard pressed and IMO far reaching in gaining a contract violation after you filed the suit.

On this claim, unless they violate, leave this one alone.

I am all for defending my rights, but in this particular instance, I'd be inclined just to MTC.

I may be viewing this wrong, its just my take on it.
ALL my postings have NO legal value.

 I AM the "village idiot" please hold my posts to this standard.

 If you need legal Counsel - contact an Attorney.

CleaningUp

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Re: Going to sue Legal Assistant.
« Reply #21 on: April 06, 2012 01:37:58 AM »
I agree with CPREMS.  You are on very shaky grounds. By the contract, YOU could well be in violation for pursuing the collection agent's agent in court when YOU have elected arbitration for all disputes within the bounds of the original claim.

This could be an expensive gamble on your part.
« Last Edit: April 06, 2012 02:00:03 AM by CleaningUp »

PC1978

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Re: Going to sue Legal Assistant.
« Reply #22 on: April 06, 2012 03:04:13 AM »
I hope this clarifies.

CITI filed suit against me.

I immediately elected and initiated arbitration against CITI through their representative attorneys to resolve all disputes between us.

Collector attorney, and legal assistant violated FDCPA.

I filed a separate Small Claims suit against the legal assistant for the violations. 

Contract has a small claims exception, but it has to stay in small claims. 

By them removing it from small claims, and into circuit court, it was taking an action that they were not allowed to take, per the contract.Small claims section.

I know I am new to this forum but my take on the situation and it is just my opinion is:
-Citi is an original creditor, not subject to the FDCPA.  The contract is only binding on and only applies to you, citi and the alleged debt.
-Citi's attorney is a debt collector (assuming they are a debt collection law firm, which most of them are in these cases).  They are bound by the FDCPA.
-If you have FDCPA claims against the law firm (or their employees) these claims have nothing to do with Citi; and the alleged contract between you and Citi does not pertain to any FDCPA violation by the attorney.
-You have every right to sue the law firm for FDCPA violations (assuming they meet the definition of a debt collector) but they are not bound by the Citi contract since this is a seperate issue and they did not enter the contract with you.
-Since the Citi contract is not binding on the law firm and I am assuming there is no contract between you and the law firm with an arbitration clause the dispute would have to be resolved through the courts.

It would be the same as if a collection agency violated while collecting for an original creditor.  You could sue the collection agency but not the OC.
As long as you have a solid case with proof and you are willing to argue the case the more they fight the more it costs them.

WardOfTheCourt

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Re: Going to sue Legal Assistant.
« Reply #23 on: April 06, 2012 03:25:34 AM »
...

I sued legal assistant in SMALL CLAIMS for FDCPA, State FDCPA and court costs, and fees.

...
Seems that the OP already has multiple CoAs and has kindly provided Ms. Missy a presumably much lower cost alternative to mandatory contractual arbitration. If she/they are not pleased with that gesture most likely a quick settlement payout would be in their best interest.

Maybe Ms. Missy is an angel and has never made a mistake, FDCPA or otherwise, so they will happily defend her honor to the death. Highly improbable IMHO.

Whether the additional purported FDCPA violation (not familiar with OP's state FDCPA statute) has merit is not easily discerned at this point but it is hopeful that the other claims against the legal assistant are good ones with traction to prevail.

Curious as to what the actual wording of and in what manner the OP elected arbitration, "I have previously elected arbitration to resolve all disputes.  (I have an active arbitration about the alleged debt currently.)" It may be questionable as to whether such election can be construed broadly enough to force arbitration in lieu of presumably lower cost small claims especially if both parties are willing to have the issue decided in that forum.

Ah, love the smell of a well traveled green card coming back home. ;D



Admin Note:  Edited to remove disruptive colored text.
« Last Edit: April 06, 2012 08:47:39 PM by Admin0248 »
All warfare is based on deception. | Pretend inferiority and encourage his arrogance. The Art of War by Sun Tzu

cheeks

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Re: Going to sue Legal Assistant.
« Reply #24 on: April 06, 2012 03:57:54 AM »
Came across a recent case where an employee is held liable for FDCPA violations, may be of interest (haven't found the case yet to read):

Russell v. Goldman Roth Acquisitions, LLC (No. 1-10-cv-1224; March 12, 2012; Maloney, J.)

via varnumlaw.com

innocentme

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Re: Going to sue Legal Assistant.
« Reply #25 on: April 06, 2012 08:01:21 AM »
Thank you all for your input.  I like both supporting and dissenting opinions, as it is helpful to both reassure that I am on the right track, and also gives me an idea of what the opposition will throw at me. 

The FDCPA claim against the debt collector attorney's legal assistant is a separate claim than the original CITI complaint.  I filed against CITI in JAMS almost 2 month ago now. 

My exact wording for the arbitration election was
Quote
Any underlying arbitration clause associated with this alleged account is hereby invoked.  I hereby ELECT arbitration to resolve all disputes between us. 

The original violations against the legal assistant were for FDCPA violations in collection of the alleged CITI debt.

I decided to sue the legal assistant per the contract in small claims under the small claims exemption previously mentioned. 

I figured that the law firm would come to her defense and have it removed from small claims.

I originally just thought it was going to be my way of getting the legal assistant into JAMS, but after reviewing the events, I also believe the act of removing it to circuit court was a violation in and of itself.

It is not the first and only violation, but it is added to the list of continuing violations.  It just adds to my growing list of violations that this firm has done in collecting for CITI, and not reading the contract that they are collecting upon.   

pc1978, thank you for your input.  Per the contract that the law firm is trying to collect upon, I quote the following.
Quote
Claims Covered
What Claims are subject to arbitration? All Claims relating
to your account, a prior related account, or our relationship
are subject to arbitration, including Claims regarding the
application, enforceability, or interpretation of this Agreement
and this arbitration provision. All Claims are subject to arbitration,
no matter what legal theory they are based on or what remedy
(damages, or injunctive or declaratory relief) they
seek. This includes Claims based on contract, tort (including
intentional tort), fraud, agency, your or our negligence,
statutory or regulatory provisions, or any other sources of
law; Claims made as counterclaims, cross-claims, thirdparty
claims, interpleaders or otherwise; and Claims made
independently or with other claims. A party who initiates
a proceeding in court may elect arbitration with respect to
any Claim advanced in that proceeding by any other party.
Claims and remedies sought as part of a class action, private
attorney general or other representative action are subject to
arbitration on an individual (non-class, non-representative)
basis, and the arbitrator may award relief only on an individual
(non-class, non-representative) basis.
Whose Claims are subject to arbitration? Not only ours and
yours, but also Claims made by or against anyone connected
with us or you or claiming through us or you, such as a
co-applicant or authorized user of your account, an employee,
agent, representative, affiliated company, predecessor or
successor, heir, assignee, or trustee in bankruptcy.

So from above, you can see the that law firm, and their employees trying to collect upon the alleged debt would also be subject to the arbitration clause in the contract. 
I am not an attorney.  I just love to know my rights, and to defend them at all costs.  Even if that means going on the offensive.  I'm always nice, until I'm not.

daryl1689

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Re: Going to sue Legal Assistant.
« Reply #26 on: April 06, 2012 10:09:19 AM »
Thank you all for your input.  I like both supporting and dissenting opinions, as it is helpful to both reassure that I am on the right track, and also gives me an idea of what the opposition will throw at me. 


I think we are trying to say that you are not on the right track.

WardOfTheCourt

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Re: Going to sue Legal Assistant.
« Reply #27 on: April 06, 2012 07:46:07 PM »
It is unclear how the OP's process is an expensive gamble. Litigation is always a gamble for the self represented. IMHO

Anyone with legitimate claims pursuing a CA and their employees goes forward with best wishes from this quarter.

Quote
Dear innocentme,
 
Your offer is rejected.  The only acceptable resolution as to your filing regarding Ms. Missy is dismissal of your suit against her with prejudice and with a full release.  Removal of your suit to Circuit Court is our legal right and is not a violation of the FDCPA.
 
Regards,
 
Mr. Attorney

The attorney's response stating "Removal of your suit to Circuit Court is our legal right" doesn't ring true due to contractual limitations. This appears to leave this discussion as to whether the attorney is correct on his other claim, "and is not a violation of the FDCPA."

Assuming several solid claims and one that is unclear as to merit what kind of expense, beyond usual and customary,  is the OP likely to encounter in the proposed litigation path?
All warfare is based on deception. | Pretend inferiority and encourage his arrogance. The Art of War by Sun Tzu

CleaningUp

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Re: Going to sue Legal Assistant.
« Reply #28 on: April 06, 2012 08:50:56 PM »
If he loses, he WILL get stuck with the opposition's legal fees.


WardOfTheCourt

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Re: Going to sue Legal Assistant.
« Reply #29 on: April 06, 2012 09:40:51 PM »
If he loses, he WILL get stuck with the opposition's legal fees.


IOW same as all litigation "usual and customary" expenses. If the OP has no valid claims litigation is not a smart move. If 3 out of 4 claims are solid then the OP is left with the normal litigation risks of "usual and customary" expenses.

Missed the part where it is alleged that the OP has no valid claims and all claims are frivolous. Taken as true then litigation would be ill advised.

Again, it would be wise to heed the advice recommended earlier in this thread:
Litigious? Read this first
     http://www.debtorboards.com/index.php/topic,7215
All warfare is based on deception. | Pretend inferiority and encourage his arrogance. The Art of War by Sun Tzu