Author Topic: Please critique my TCPA Complaint...Need your help  (Read 1177 times)

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kevinmanheim

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Re: Please critique my TCPA Complaint...Need your help
« Reply #45 on: November 07, 2016 09:31:07 AM »
They are directly challenging the process server's affidavit.

You could have fun with that argument, but filing the amended complaint will make more work for them. I would go with making more work.

If it were me, I would CMRRR all future pleadings to the Exec VP's home address, in addition to filing with the court. That way, the Exec VP can't argue he didn't receive them.

Include a friendly note to the VP, letting him know you took a pic of the envelope contents before mailing them. Wish him happy holidays, too.

bdrew6

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Re: Please critique my TCPA Complaint...Need your help
« Reply #46 on: November 07, 2016 06:43:10 PM »
Wow they are a frequent flyer.  Ive not seen this many suits for a small collection firm in a while.

I like that idea.  Direct the process server to serve the VP at his home, ideally around 10PM.
« Last Edit: November 07, 2016 07:39:43 PM by bdrew6 »
(Pro se) BK chap 7 {discharged}
(Pro se) 3 TCPA  {2 settled, 1 win (Federal)}
(Pro se) 1 FDCPA {1 settled}

isueyoutoo

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Re: Please critique my TCPA Complaint...Need your help
« Reply #47 on: November 08, 2016 12:38:57 AM »
Before I filed the suit, I sent an ITS with a draft complaint to Annoying Collector's attorneys.     

I put in a call today to the attorney today to see if she wanted more time to respond, but alas she was unavailable :(

Since Annoying Collectors so graciously provided the personal emails of their employees and the Executive VP in their MTD claiming they never received the complaint, I thought it would be a nice gesture on my part to forward the final version of the complaint (and the declaration of diligence by the process server that he included the complaint in the original service) to everyone on the email chain (including the Exec VP and a bunch of other employees).

Oh, to my surprise...the attorney responded in less than a minute with this:

Quote
Mr. iSueYou,
 
Please cease and desist all direct communications with Annoying Collectors. This includes e-mails which are cc’ed to billybob@annoying.com; damethepain@annoyinglaw.com; and, diarmaria@annoying.com.  All correspondence related to this case should be sent to the Losers Law Group.
 
Thank you in advance,
BigShot Attorney

Ironic, considering this suit is over them calling me in violation of my cease and desist.

Wow, do you think she was screening her calls? Guess their attorney didn't like me emailing their client  ¯\_(ツ)_/¯      :vbrofl:
My posts are purely fictional and not legal advice, I'm not a lawyer...I'm a Jedi! 

started with 119 negs!  (Great Recession) only 3 left.

4 collection suits dismissed (pro se)
1 Federal wrongful foreclosure settled
2 Loan Mods (for family members)
2 ARB settlements

Always use the force for good.

BellEbutton

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Re: Please critique my TCPA Complaint...Need your help
« Reply #48 on: November 08, 2016 03:08:43 AM »
Even if the MTD is granted, you can serve the complaint to them right there in court.

In CA, the OP can't serve the complaint himself.

Bruno the JDB Killer

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Re: Please critique my TCPA Complaint...Need your help
« Reply #49 on: November 08, 2016 02:40:00 PM »
They have already been served according to the process server. OP would be providing a copy of the complaint as a courtesy.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Please critique my TCPA Complaint...Need your help
« Reply #50 on: November 08, 2016 04:04:50 PM »
They have already been served according to the process server. OP would be providing a copy of the complaint as a courtesy.

Read the post to which I responded.  If the MTD is GRANTED, then it means service was not accomplished.

Bruno the JDB Killer

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Re: Please critique my TCPA Complaint...Need your help
« Reply #51 on: November 08, 2016 05:01:05 PM »
Don't hold your breath on that one. Chances of that flying is about zero when the process server documents say otherwise.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

isueyoutoo

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Re: Please critique my TCPA Complaint...Need your help
« Reply #52 on: November 30, 2016 01:39:59 AM »
I filed my  process server's proof of service and his "declaration of due diligence" which was a form on which he essentially said that the complaint was served with the summons.  I also had the summons and complaint served a 2nd time as a precaution and filed an Opposition to the MTD.    I appreciated the ideas about amending but I was concerned that technically the time period I had to amend had passed if you measure from the first date of service (despite Defendant's lies, they were served properly the first time).

The Defendants filed a withdrawal of their Motion to Dismiss today and an answer.  I think they saw the handwriting on the wall.... 1215

The answer was a complete boilerplate denial of everything.   I've always settled at this point in a case so we are now in new territory.   I guess it's on to discovery now as they haven't reached out to me about settling yet.  Any general tips on what I should do next and/or specific Discovery I should do? I feel I have everything I need to prove my case, but maybe I can uncover more violations!

We have a Joint Case Management statement due first week of January and a Case Management Conference 2nd week of January.
My posts are purely fictional and not legal advice, I'm not a lawyer...I'm a Jedi! 

started with 119 negs!  (Great Recession) only 3 left.

4 collection suits dismissed (pro se)
1 Federal wrongful foreclosure settled
2 Loan Mods (for family members)
2 ARB settlements

Always use the force for good.

kevinmanheim

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Re: Please critique my TCPA Complaint...Need your help
« Reply #53 on: November 30, 2016 05:54:57 PM »
You have nothing to prove your case. They have denied the claims. You must prove them. You can't do that with unauthenticated phone records.

You need to serve the defendant with interrogatories, and schedule a deposition of their employee. Without that evidence, you will lose on a summary judgment.

Check your local rules. You need to keep tabs on the discovery deadlines and procedures. Expect your opponent to try to delay you and trip you up. They will do anything to prevent you from getting discovery that is admissible.

isueyoutoo

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Re: Please critique my TCPA Complaint...Need your help
« Reply #54 on: November 30, 2016 06:21:45 PM »

You need to serve the defendant with interrogatories, and schedule a deposition of their employee. Without that evidence, you will lose on a summary judgment.
 

@Kevinmanheim: Thanks for the gentle shove in the right direction :)    Do you (or anyone here) have any links to sample interrogatories, deposition questions, requests for document production, etc?   
My posts are purely fictional and not legal advice, I'm not a lawyer...I'm a Jedi! 

started with 119 negs!  (Great Recession) only 3 left.

4 collection suits dismissed (pro se)
1 Federal wrongful foreclosure settled
2 Loan Mods (for family members)
2 ARB settlements

Always use the force for good.

CleaningUp

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Re: Please critique my TCPA Complaint...Need your help
« Reply #55 on: November 30, 2016 07:49:51 PM »
Getting proper discovery is both an art and a science.  There are any number of discussions about discovery on the Board.  Go to the FORUM page and do your search for "discovery".  Be prepared to wade through A LOT of stuff, most of it is useful.

You need to craft your definitions carefully.  Many have tripped themselves up by playing fast an loose in this area only to find that they created a loophole big enough to sail the US 7th Fleet through it.

You need to focus your requests on things that might actually make your case for you...But be careful...It can't look like it's a fishing expedition.

You need to phrase your questions so as to minimize the chances of getting the evasive answers that you know will be coming.

You need to include requests for everything that you possibly might be able to use...somewhat of the reverse of the recommendation for requesting materials that actually might help.  Again, you have to avoid making things look like a fishing expedition.

As you can surmise from the above, phrasing discovery is a delicate process and needs some of your sharpest thinking to do properly...

But it can be done if you put in the time and the energy...And, remember, it is what you actually ask or say that counts, not what you think you are asking or saying.  The opposition is going to try to find every way it can...and some that it shouldn't...to avoid and evade giving you the stuff with which to hang them.

isueyoutoo

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Re: Please critique my TCPA Complaint...Need your help
« Reply #56 on: November 30, 2016 09:54:23 PM »
Thanks for the tips CleaningUp! 

I emailed the Defendant's attorney's about holding our Rule 26f conference in person.  They are 90min away and wanted to do it over the phone, but they are in court in my city all the time.  I proposed a neutral location half way between our offices.

Their response:
Quote
Then iSueYouToo you are  most welcome to travel to our office since you apparently have nothing better to do. We will have coffee available

Pretty funny and pretty insulting!  I'm sure the judge would love to hear about this.    My response:

Quote
Dear Defendant,

I take this case very seriously and so should you.  Furthermore, your insults are inappropriate and unwelcome.

The purpose of the conference is to clarify the issues and give the parties the best opportunity to settle the case without wasting the resources of the court and the public.  To that end, a face to face meeting was originally contemplated when this rule was created.

Please confirm that you flat out refuse to meet in person in a neutral location, or please let me know a date and time that we can meet in a mutually agreeable neutral location.

Sincerely,

iSueYouToo
My posts are purely fictional and not legal advice, I'm not a lawyer...I'm a Jedi! 

started with 119 negs!  (Great Recession) only 3 left.

4 collection suits dismissed (pro se)
1 Federal wrongful foreclosure settled
2 Loan Mods (for family members)
2 ARB settlements

Always use the force for good.

rebuilder2006

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Re: Please critique my TCPA Complaint...Need your help
« Reply #57 on: November 30, 2016 10:05:49 PM »
Remember, in a TCPA case it is up to the Defendant to both establish and prove that they had your prior express consent to call you using an automated dialing system and use an automated voice messaging system.

I is NOT up to the Plaintiff to prove that they did not have your prior express consent.

The burden of proof, for prior express consent, is on the Defendant.


CleaningUp

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Re: Please critique my TCPA Complaint...Need your help
« Reply #58 on: November 30, 2016 10:51:31 PM »
Judge may just chuckle and smile, and tell you to take a large slurp and lap it up.

There is no law that that says they can't be flippant if they so chose when responding to your proposals.

Also...burden of proof for establishing that the caller used an automated dialing and voice messaging system is on the Plaintiff.



isueyoutoo

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Re: Please critique my TCPA Complaint...Need your help
« Reply #59 on: November 30, 2016 10:57:08 PM »

There is no law that that says they can't be flippant if they so chose when responding to your proposals.

It's good motivation!  Game has just barely begun, but so far the scoreboard is Plaintiff 1 Defendant 0.
My posts are purely fictional and not legal advice, I'm not a lawyer...I'm a Jedi! 

started with 119 negs!  (Great Recession) only 3 left.

4 collection suits dismissed (pro se)
1 Federal wrongful foreclosure settled
2 Loan Mods (for family members)
2 ARB settlements

Always use the force for good.