settling a judgment

Asking them to file a satisfaction of judgment with the court is a reasonable thing to do indeed.

How well your letter might work is anybody's guess. I would say that if the judgment amount is somewhere between $600 and maybe $750 that might work indeed. If it is greater than that it may not stand much of a chance of working at all.

That's just my guess for whatever it is worth.

 

I agree with Bill. A judgment creditor has no valid reason to settle insofar as they can garnish, levy and attach in most jurisdictions. By offering accord and satisfaction; i.e., money, you alert them that you indeed have some ability to pay. However, you really have no options here otherwise unless you have some valid ground to move to vacate.

 

Apex, do you practice in federal courts? Reason I was wanting to know deals with a question of FRCP which is this. If a defendant argues that the court has no jurisdiction in a federal case is it the responsibility of the plaintiff or the court to respond? I tend to think the plaintiff should not attempt to respond to the defendant's challenge since it is the court's jurisdiction that is being challenged. I can't find anything in FRCP that addresses that issue.

In another case a couple of years ago and in a different federal court the judge made a separate ruling on jurisdiction of the court even though nobody challenged jurisdiction. In that case the judge stated that the court was required to address the matter sua sponte. Seems to me that if the plaintiff were to respond that just might not sit too well with the judge.

In this particular case the defendant challenged both subject matter and in personam jurisdiction. The defendant is represented by an attorney while the plaintiff is pro se. Defendant argues that the court has no inpersonam jurisdiction because the defendant is a corporation having it's principal place of business in a state different than that of the plaintiff!!!! (LOL).

Defendant argues that the plaintiff caused his own damages if any. Doesn't really say why it claims such except that the way it is worded and the defendant is a 3rd party debt collector it leaves little doubt that the argument is trying to claim that if the plaintiff had paid his debt he would have had no problems from the DC. (LOL)

The defendant also raises a res judicata argument because the plaintiff sued the defendant in local court using a totally different violation he did not mention in his federal case. In the local court the plaintiff lost because the judge ruled that the plaintiff had failed to state his damages therefore had no claim. That ruling came even though the plaintiff plainly claimed statutory damages of $1,000 per violation and had complained on only 1 violation. Can you imagine that? (LOL).

So now counsel for the defendant thinks that because 1 violation was dismissed in local court res judicata applies to all of defendants complaints in this new federal case. What I wonder is whether or not this joker is even authorized to practice law in federal courts. We will check that out on Monday. I've seen other instances where attorneys were defending in federal courts but had no authorization to practice law in federal courts. Neither they nor the judges were all that happy about the results of the Plaintiff finding out about that and suggesting to the court that the defendant attorney should show cause why he should not be sanctioned for the unauthorized practice of law. (LOL). Judges have routinely denied that motion but will make the attorney meet his requirements to practice law in federal courts. Might not do the plaintiff much good but it sure does make the offending lawyer look bad before the court. (LOL).

 

Yes, they can place a junior lien on the car which would have to be paid before you could sell it or trade it in. A suggestion of bankruptcy is so overused that most judgment creditors don't care anymore. They will approach you before discharge with an offer sometimes and other times, they just leave you alone.

 

Bill:

I'm licensed in the M.D.Tn. and practice before the federal bench at the Nashville Division frequently.

With that said, if a Defendant moves for dismissal under Rule 12 for lack of jurisdiction then, yes, a Plaintiff must file an opposition and a memorandum in support thereof as to why jurisdiction is properly vested in the court. If they plug it in as an affirmative defense, you can ignore it since they've waived it via appearance through answering the complaint or you can motion to strike. I typically ignore it because I don't have time for something superfluous that isn't going to affect my client anyway.

As for res judicata, sounds as though the Plaintiff's case in state court wasn't adjudicated upon the merits rather, it was dismissed under the rules of procedure. Hate to tell defense counsel but, a case must be adjudicated upon the merits and the issue that is subject to res judicata must have been presented and defeated.

Finally, unless defense counsel plead unclean hands or comparative fault, the Plaintiff's act of allowing something to go to collection is inapplicable. Moreover, and most importantly, an underlying debt cannot be introduced in a CCPA claim in federal court insofar as it defeats the legislative intent behind the CCPA in that it would serve as a chilling effect if it were permissible to introduce it.

 

I'll have the paperwork in both cases in hand early this A.M.
In his initial complaint the plaintiff established jurisdiction of the court under 28 U.S.C. 1331 and 1332. Then further established jurisdiction pursuant to each and every one of his half dozen complaints individually. As example, This Honorable Court has jurisdiction under 15 U.S.C. 1692(g) because it is a federal question.
Defendant clearly outlined each of his denials as affirmative defenses and no mention was made of 12(b)(6).

This is the plaintiff's first federal case so he is naturally extremely nervous about it. Of course he also wants to kill the defense dead and get his money as quickly as possible. They all do. (LOL). I can understand that well enough but I don't want to see him do something that might tick the judge off in his haste. My thinking was that since the defendant challenged jurisdiction in his affirmative defenses it might be more appropriate for the plaintiff to wait about 15 days before filing motions to strike in order to see if the judge will jump in and establish jurisdiction of the court sua sponte. If the judge don't do that within maybe 15 days then motion to strike probably wouldn't do any harm.

OH HO! You taught me one that time. (LOL) Thanks. No, the judge in local court small claims court did not rule on the merits of the case. Just dismissed because the plaintiff didn't establish damages. The judge ruled that since there were no stated damages there was no injury therefore no cause of action. Case dismissed. I tried to tell the plaintiff that he ought to just dismiss his local small claims court case because the judge wasn't going to understand the case anyway and would dismiss but he wouldn't listen to me and let it go forward. I didn't know about the fact you just revealed to me so I told him not to include the same cause of action in his federal case that he used in his small claims case because the defendant would come back claiming res judicata. He didn't need it anyway because he had half a dozen more causes of action without that one.

I've got a case of my own that I'm going to file my response to this very late this afternoon, about 4:45. I'm waiting until almost the very last minute to file hoping the plaintiff will file motion for default judgment today before I file my response. My 35 days exclusive of day of service is over today. I wanted to file a counter suit in order to move it out of small claims but didn't want to use up any of my multitude of causes of action for federal court. I would use one of my sillier causes to move it to district so if the court dismissed it I wouldn't lose much anyway.

On the other hand, I'm going to lose in small claims court or in district no matter what I do so I'm thinking that maybe I just ought to leave it where it is so as not to tip the plaintiff off to what I'm going to do when this little shindig is over.

The defendant apparently didn't plainly plead unclean hands but may have claimed that the plaintiff did cause his own damages by failing to make timely payment of his medical bill. The inference was that if the plaintiff had paid his debt to the hospital in a timely manner the defendant would not have had to take action against him. I'll have to read the actual response myself in order to see exactly how the response was worded. Defendant also didn't seem to plead comparative fault nor anything to do with CCPA.

I'll have to check it out personally when I see the actual documents filed by the defendant because trying to remember what the plaintiff read to me over the phone don't work very well.

Although your excellent tip about res judicata probably won't be of any use in the present situation I know that it will be of great value at some point in the future so I really appreciate your having pointed that out to me. Little tidbits like that can really help sometimes. Thanks.