HELP CNetters -- Mommy2Cats

Hi Mommy2Cats,

I have been reading and reviewing your documents and correspondence at the creditcourt.com site.

It appears to me that the attorney representing Cap One has filed a counterclaim for $600-ish based on your initial claim for FCRA violations, yes?

Somewhere, and surely the C-Netters know and can help, there is something saying it is inappropriate in the least, maybe it was not allowed or not allowable (work with me here brain!) to counterclaim for the DEBT when the issue is the FCRA violations.

Where did I read that? Someone knows, please post it -- Every court action is a victory for all of us.

Perhaps it was the Nelson v. Chase case, I will check there first.

Mommy2Cats, can you update with your timeframes so we know what kind of deadlines you are under, please?

Sassy

 

Mommy2Cats,

I'm wondering on Cap One, since the attorney filed knowing you paid if you could slam him (are all lawyers in Phoenix as stupid as these 2 you have the misfortune or fortune, it could work for you that they are so dumb, to meet up with?) under the Fair Credit Billing Act as they are the OC, and certainly the Federal and State Unfair and Deceptive Trades Practices Act.

BTW, isn't your Cap One, or the bogus countersuit anyway, beyond the SOL for enforcement?

What I was thinking of, cut and pasted below, also explained here: http://www.hinshawlaw.com/ArticlesPublications/lossarticles/debtcoll.cfm
appears to be specific to counterclaims for the debt under the FDCPA and not FCRA, grrrrrrrrrr. Though, I don't know why the same argument wouldn't apply if the basis of the claim is the violations themselves.

3. "I Can't Be Liable Because They Owe the Debt"
The FDCPA is a strict liability statute, and whether the debt is legitimate is irrelevant to a finding of liability. Counterclaims seeking payment of the underlying debt cannot generally be brought in an FDCPA case, although one court recently allowed a debt collector to exercise a right of set-off. Crawford v. Equifax Payment Svcs., Inc., 1998 WL 704050 (N.D. Ill. 1998). The fact that the debt is admittedly owed or that set-off may be asserted does not preclude a debtor from maintaining an FDCPA suit, either individually or as a class action in appropriate circumstances. If this is your best defense, your position will most likely be overrun.

Lawsuit anxiety please advise:
http://consumers.creditnet.com/stra...threadid=31852&perpage=20&pgnum=&pagenumber=2

An FDCPA claim â??has nothing to do with whether the underlying debt is valid. An FDCPA claim concerns the method of collecting the debt. It does not arise out of the transaction creating the debt[.]â? Azar v. Hayter, 874 F. Supp. 1314, 1318 (N.D. Fla. 1995) (refusing to find waiver of FDCPA claim as compulsory counterclaim to state court action on the debt because claim â??does not arise out of the transaction creating the debt, and thus was not a compulsory counterclaim under state law in the action to collect the debt.â?), affirmed, 66 F.3d 342 (11th Cir. 1995), cert. denied, 516 U.S. 1048 (1996). The Act makes debt collectors liable for various â??abusive, deceptive, and unfair debt collection practicesâ? regardless of whether the debt is valid. McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir. 1992). Our analysis is further consistent with the well-settled principle that the FDCPA is a strict liability statute and that a consumer need not show intentional conduct by the debt collector to be entitled to damages.

(this is a dialogue between Robin and the posters)

What they are saying is that if a debtor files suit against a ca for FDCPA violations, the ca cannot countersue for the debt itself. One has nothing to do with the other.

There is a rule in the FDCPA that says a ca can claim it was "an honest mistake". But that won't fly in your case as they committed several violations, not just one oversight.

"Notorious" LKH

Here's the FTC brief on Chase v. Nelson, for the student loan goobs that don't get it:
http://www.ftc.gov./ogc/briefs/nelsont.pdf

FCRA gives consumers cause:
http://subscript.bna.com/SAMPLES/la...96ba85a310bdf7bb85256b7d00740a15?OpenDocument

Court says furnishers face reinvestigation liability under FCRA:
http://www.a2cb.com/collection/may2001.htm

http://consumers.creditnet.com/straighttalk/board/showthread.php?threadid=21491

Dornhecker v Ameritech -- Court case on FCRA liability for furnishers of info: http://www.ilnd.uscourts.gov/JUDGE/PALLMEYER/RRP_OPIN/00c26.PDF

Here's a summary of dornhecker: http://www.cdiaonline.org/acdvnews2.cfm

Specific and victorious student law suit:
http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&pgnum=1&postid=191183

small claims update:
http://consumers.creditnet.com/stra...ostid=229391&highlight=countersuit#post229391

Threatened by countersuit:
http://consumers.creditnet.com/straighttalk/board/showthread.php?threadid=29572

Lawsuit filed against me:
http://consumers.creditnet.com/straighttalk/board/showthread.php?threadid=5603

Sassy

 

FCRA 616 (617) has the same provision, for both willful and negligent non-compliance:

c) Attorney's fees. Upon a finding by the court that an unsuccessful pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorney's fees reasonable in relation to the work expended in responding to the pleading, motion, or other paper.

If filing a suit after and knowing that you paid isn't bad faith, I don't know what is!

I was curious about the SOL because he shouldn't have filed a counterclaim beyond the SOL for enforcement whether you raised it as an affirmative defense or not -- more bad faith.

Sassy

 

sorryyyyyyyyyyyyyyy charlie ;-)

No no no, shaking head, I've been christened a lot of things, he he he, but NEVER librarian.

Good try though!

Sassy

 

Hi Breeze!!!!!!!!

Where can I find abuse of process information? That is state law, federal?

Sassy

 

wow Breeze, thanks!

I plugged it into google as well, looking for Arizona specifics, too bad my butt is numb and I'm googly-eyed.

WHAT is the deal with Allstate, they are everywhere in my surfings too!

There's enough reading for weeks and weeks but this will definately help Mommy2Cats!

Sassy