Author Topic: New violations during lawsuit?  (Read 315 times)

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fisthardcheese

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New violations during lawsuit?
« on: April 05, 2014 09:48:55 PM »
I love hearing all of the legal opinions and ideas, so I am presenting another one of my situations to the board.

Facts:
Midland files suit against me last year.  I have an attorney file answer for me, which included counterclaims for TCPA and FDCPA violations.  AFTER my lawyer filed the answer (about a week later), the JDB law firm collector calls me to offer settlement. Eventually the case ends with a mutual dismissal with prejudice.

Questions:
1.  Can the phone call to me after I have representation on record be construed as an FDCPA violation?
2.  I'm assuming this phone call would not have violated my C&D in place since they asked if I wanted to settle?
3.  If not an FDCPA claim, the call is at least a violation of TCPA.  Would the DWP have any bearing on this call, or is it open to new action since it was not a violation listed in the counterclaim?
Victories thanks to DB:
2 JDB Suits dismissed w prejudice
1 TCPA Settlement
1 Landlord/CA settlement

(*but I still have no idea what I'm doing*)

BellEbutton

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Re: New violations during lawsuit?
« Reply #1 on: April 05, 2014 09:54:22 PM »
1692c(a)(2)

(a) Communication with the consumer generally
Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—

     (2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer;


The FDCPA applies to `attorneys who regularly engage in consumer-debt-collection activity, even when that activity consists of litigation.  Heintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995).

fisthardcheese

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Re: New violations during lawsuit?
« Reply #2 on: April 05, 2014 09:58:15 PM »
Ahh, perfect!  Thanks Bell.

I feel silly now, it's right there clearly in the statute.  I was working too hard to make it fit into some other parts of FDCPA.
Victories thanks to DB:
2 JDB Suits dismissed w prejudice
1 TCPA Settlement
1 Landlord/CA settlement

(*but I still have no idea what I'm doing*)

BellEbutton

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Re: New violations during lawsuit?
« Reply #3 on: April 05, 2014 10:18:22 PM »
Ahh, perfect!  Thanks Bell.

I feel silly now, it's right there clearly in the statute.  I was working too hard to make it fit into some other parts of FDCPA.

I understand.  I've done the same thing plenty of times.  :)

Shadowbuddha

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Re: New violations during lawsuit?
« Reply #4 on: April 11, 2014 06:17:47 PM »
If there was a mutual dismissal with prejudice presumably there was a settlement agreement.  If there was a settlement agreement, there likely was a waiver of all claims that could have been brought up to the time the agreement was signed.

"I was THIS CLOSE to being complete!" - Fight Club

I am not your attorney.  Nothing I say should be construed as legal advice nor does it create an attorney client relationship.

coltfan1972

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Re: New violations during lawsuit?
« Reply #5 on: April 11, 2014 08:06:58 PM »
If there was a mutual dismissal with prejudice presumably there was a settlement agreement.  If there was a settlement agreement, there likely was a waiver of all claims that could have been brought up to the time the agreement was signed.

This ^^^
Scroggin succeed in making this case an expensive nightmare for both CBOJ and its counsel.

Scroggin made a mockery out of CBOJ's deposition.

Scroggin made perverted "one-liners" during his deposition.

Scroggin called CBOJ'S counsel "a little witch."

Scroggin has engaged in the exact type of behavior the FDCPA was designed to prevent.

Scroggin used the FDCPA as a "sword of intimidation."

Rebecca Worsham - Lead Counsel, Scroggin v. CBOJ, 3:12-cv-128 SWW, Eastern District of Arkansas.

fisthardcheese

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Re: New violations during lawsuit?
« Reply #6 on: April 11, 2014 10:42:01 PM »
"The parties in the above styled action do hereby voluntarily dismiss all claims and counterclaims asserted, with prejudice."

Signed by their lawyer and my lawyer.  Stamped Filed with the court clerk.

This is all that was agreed to and signed. No other settlement agreement was made.  Either they are that dumb or they believe I am not smart enough to go after them for the violations made during the case.

It may have also helped that I used a not-as-agressive NACA lawyer who is knows for just cutting deals and moving on.  He does not like to file suit on the offensive and especially not against the other law firms. He likes to maintain the relationships in order to get easy settlements for his clients.

Fortunately for me, I have already given this information over to another attorney who DOES enjoy going after the collector law firms.  He was interested so I sent him all of the files I have and am waiting to hear back from him.
Victories thanks to DB:
2 JDB Suits dismissed w prejudice
1 TCPA Settlement
1 Landlord/CA settlement

(*but I still have no idea what I'm doing*)

siskelsghost

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Re: New violations during lawsuit?
« Reply #7 on: April 11, 2014 11:08:08 PM »
Dude, really?

The attorney offered a mutual walkaway with prejudice and you now want to sue them for calling you to offer a walkaway?

Dude, really?


CleaningUp

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Re: New violations during lawsuit?
« Reply #8 on: April 11, 2014 11:17:23 PM »
Settlement negotiations are not admissible evidence.

Also, when you stipulated the mutual walk-away your established a de jure closure of the matter an anything that relates to it.

This is another, relatively unhelpful attempt to bend a pretzel.

Not bright.


cracrap

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Re: New violations during lawsuit?
« Reply #9 on: April 12, 2014 06:52:27 PM »
Claim preclusion.
say nope to dope...ugghh to drugs...and God bless Ronald Reagan!!!


Quote from: smurfy

this really is not a spectator sport ... you have to know what your doing ... or you will get in very hot water very quickly

fisthardcheese

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Re: New violations during lawsuit?
« Reply #10 on: April 12, 2014 07:20:25 PM »
Dude, really?

The attorney offered a mutual walkaway with prejudice and you now want to sue them for calling you to offer a walkaway?

Dude, really?

No, they called to get me to pay the full amount of the debt before the court hearing.  After I had counsel on record.  The walkaway offer came 6-months later.

Settlement negotiations are not admissible evidence.

Also, when you stipulated the mutual walk-away your established a de jure closure of the matter an anything that relates to it.


I would not construe their calls as a settlement negotiation, and I was bringing it up only because I had an attorney of record and any settlement offer should have gone through him anyway.

But all that is moot, because your second point is correct.  Res Judicata would apply on this call.  This is why I asked about it in my original OP.  One of my questions was in fact, would this be precluded by the DWP.  It was a simple question, I was not knocking on the court house door with this claim yet.

I do have new FCRA claims against Midland for actions taken well after the DWP.  I have a lawyer working on those claims and as I was pulling all of the files of this case for him, I remembered this phone call and brought it to his attention as well as asked about it here.  The lawyer told me the same thing as you guys pointed out, except without all of the sarcastic quips.
Victories thanks to DB:
2 JDB Suits dismissed w prejudice
1 TCPA Settlement
1 Landlord/CA settlement

(*but I still have no idea what I'm doing*)

Mech85

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Re: New violations during lawsuit?
« Reply #11 on: April 12, 2014 08:05:39 PM »
Someone else will have to chime in on this because I'm still trying to get all the ropes lined up on this stuff, but isn't there something around that would tie any and all violations prior to a hearing into one action?

Like if they sued you and you counterclaimed, which you said you did, and they later kept violating before the hearing - wouldn't those violations be able to be added to the counterclaim since the case hadn't been heard and assumed as such?

I'd venture a guess that since the DWP took place 6 months after all of this that it would encompass anything and everything they've done up to that point. But, if it wasn't strictly outlined as such in the settlement/dismissal then I'm not sure.  That's just my line of thinking, so please correct me if I'm wrong. (Personally I'd be happy with the walk away and leave it.)