How to stop a CA cold in its tracks

No. Worst case scenario is they would ask for a continuance.

 

Excellent point Dixi. I cought that too.

Maybe Bill will elaborate.

 

Let's not get off on a tangent here and I suspect that may be what is starting to happen here. If you sue the attorney because he committed violations of FDCPA that has nothing to do with his being able to work for his client. That would be two totally different issues even though they evolved out of the same situation. In order to wrap the attorney up that way you absolutely have to do it by filing countersuit against the plaintiff and name his attorney as co-defendant. I have my doubts that filing a separate suit against them both would keep the attorney from defending on the original case. Although I'm no legal expert by any stretch of the imagination, my understanding is that it would have to be a counter suit although I may be wrong on that.

I'm almost dead certain you can't do that. Oh, I suppose you might be able to if you had special circumstances which arose by chance and you asked the permission of the court but if you did it the way you are saying I'm pretty sure it would be disallowed and dismissed because it would be seen as a surprise and the courts don't like any kind of surprises. Again, I can't do anything but just guess about some of those things but I'd almost be willing to bet that if you didn't do it when you filed your answer to the MSJ the court would chunk it in a heartbeat. Just my gut feeling. But I just about know the court would be very unlikely to consider any such "surprise" motion.

I believe a motion to dismiss or strike (whichever is appropriate in your jurisdiction) would be accepted and would have to be ruled on before their case could proceed. That kind of move shouldn't be considered as any surprise and probably wouldn't raise any eyebrows unless it had real merit. Most of the time even motion to dismiss or strike is also done at the time of making answer to the court so even then its not going to be a surprise if filed.

One cannot jump to such conclusions as you seem to have done. Everything has to go by the rules and before you move you need to study the RCP for both your jurisdiction and Federal. Quite often Federal takes precedence over state and you have to know when as well.

No, not at all. They get away with those surprise maneuvers on TV but in real life its just not usually accepted.

 

Actually, when I was working for the dark side in banking we had someone try that. It was small claims and he had the lawyer for the bank served on the court house steps. We just went into court and brought it to the judges attention. The judge said let's go on with the trial and as the evidence develops if I see a conflict I'll grant a continuance. He let the case proceed to conlusion.

 

That is exactly what I would have expected a judge to do under the circumstances you describe.

People these days will try most anything because they are so desparate but they need to proceed with caution and not just grab up any old idea they see and run with it. On top of that, while these message boards are great they also have tendency to give so much information that people can become real confused.

I just saw a thread develop where a guy asked a couple of very simple questions about validation and in less than a dozen posts later someone else jumped in and apologized to the guy because he was having so much trouble getting answers to his questions and referred him to another thread that is 7 "pages" long and full of all kinds of legal stuff some of which is correct and some of which is not as usual. All that "real helpful guy" did was to add more confusion and garbage to make the problem of "no answers" even worse.

Its real tough to strike a happy medium so too much information isn't put out that it just becomes a case of information overload and ends up being worse than useless.

 

Nothing wrong with that. Such mental ramblings often lead to enlightenment and better understanding.

Ok. Sure! Why not.

FDCPA has little to do with it. C&D is a basic well established legal concept.

Let's analyze that just a bit. First you forbid them to contact you meaning they are left with little or no choice but to sue and then you want to sue them for their pursuit of the only legal remedy that your demand left them? I don't think that would be received too well in court.

Yes.

One cannot use the law to force the other party to do that which they cannot do by law.

That would be seen as a sort of "double blind" trap and would be seen immediately for what it is.

We need to think about the fact that courts today attempt to operate in equity as well as in law. While we might often wish that they operate strictly in law at times they often rule in equity realizing that there are many situations where the law alone cannot resolve all societal problems and that people will attempt to use the law to entrap the other party and when the court perceives such things going on they will rule in equity and forget the law every time. It is in fact that very thing which results in the plaintiff winning almost every time and the pleas of the debtor usually falling on deaf ears.

It is furthermore the reason that I have recently started believing that it is almost fruitless to attempt to either answer or file countersuit when faced with a MSJ. You will be attempting to force rule of law upon an equity court and the results are usually not favorable. Once the court errs then it can sometimes be forced onto the path of law rather than the path of equity.

And then one might be able to get yet another court to rule in equity on that motion which you file because you believe the law has been broken thereby creating an inequitable situation.

When we are under the gun we want the court to rule on points of law but when we go on the offensive we want the court to rule in equity.

 

You nullify the validation request if you send the C&D too soon and thus actually hurt yourself by not giving them a "reasonable time period" to respond.

Unfortunately, when push comes to shove you'll be held to a standard of reasonability...

Now, the best course of action has previously been discussed here and that's to:

1: send validation request, get cert proof back, wait 31 days after they receive request
2. Pull a copy of the affected credit report. If there's already a trade line on there, it better be noted "in dispute"...if it's not, you now have a fcra and fdcpa violations
3. Then send estoppel/ Cease and desist letter. I'd send also a demand letter for their violations already and demand they remove the inquiries too.

also, it's been noted by the ftc that inquiries (unsubstantiated ca accounts) are considered continued collection activity and in and of themselves connote a collection issue to which the consumer usually has little or no recourse correcting (I disagree. you can sue and request injuctive relief)... but in normal language... the

Meaning: get the inquiries off your file too as they poison your score and file.

If when you send the joint Notice of Demand and C&D they pull another inquiry, you have yet another fcra violation (with cases to back it). companies can't pull your file just b/c you threaten to sue

 

Now that is an interesing tag line indeed. The answer? Well, I tend to think that the answer is the obverse of the old saying which is, "If at first you don't succeed then try, try again."

So, as I see it, the answer to your tagline question is to do exactly what I am doing day in and day out. I am certain that I will always succeed because I always have. So I will always keep on succeeding day after day using the same things that worked yesterday and the day before and the day before that.

And if by some odd chance of luck I fail then I will never give up until I am once again succeeding day after day after day.

Success breeds success.

 

There you go! Put the old Triple Whammy on them! Since estoppel means stop and cease means stop and desist means stop you got the Triple Whammy on them and really nailed them down tight. Now all they can do is to contact you one more time and tell you that you have left them no choice but to sue you and they will see you in court real soon.

That strategy ought to win you the Rube Goldberg award.