What you don't know can hurt you! I'll try to be breif. If you recall, recently I was sued in NJ for a time-barred debt. I didn't know my rights about the SOL and didn't raise any defense. I just hit the panic button as soon as I received the summons and gave in giving the collectors money they asked for. After caving into the demands of the "moeny sharks", I found creditnet and began to study the law which says the debt collector was in clear violation of the FDCRA. I had an attorney who was ready to take my case until he found out about New Jersey's "Entire controversy doctrine": The entire controversy doctrine is a procedural rule applied in New Jersey and other jurisdictions that requires any party to a lawsuit to bring all of its claims that relate to the same set of underlying facts in one single suit. In several recent cases (decided August, 1995), the New Jersey Supreme Court reaffirmed and strengthened this doctrine. The doctrine applies to both plaintiffs and defendants, and even requires the assertion of claims against persons or businesses not otherwise involved in the lawsuit. Awareness of the entire controversy doctrine is very important, as any potential claims that are not brought as part of the original lawsuit will be barred, and forever lost. I believe this conflicts with federal law where FDCPA says I have one year to file a claim. Federal law supercedes state law if they are in conflict with one another. Lawyers?? Anybody?? What if I move this to Federal court? The suit was $2200.00 and might not be worth the cost or trouble. In short, a lawsuit by me will be barred in new Jersey since this is part of the original suit. Attorneys would not take this case on contingency because of so many grey areas and it will be a lot of work to fight this since of the conflicting laws in Jersey. So I'm screwed... I'll just give up and mope for the rest of the evening. I hope this is a lesson to the other newbies to start reading the law and read this board. What you don't know will hurt you. Thanks
This is just to get the debate going. It makes a lot of sense to me. As an example, assume husband and wife decide to divorce. Wife sues for divorce. They go through a nasty court proceeding totally screwing up the lives of each. Accusations fly all over. The whole family is torn up. When it is finally over and things calm down, husband gets mad and goes back to court asking for child custody. More problems. Then when that is over, Mom is mad and sues him for something else, And it goes on and on and on, never ending. That is why they have these rules. Bring all the controversies into court before a Judge and resolve it all at once. Then everyone goes home and lives their life again, knowing the problem is resolved. I think the problem you had is that you did not know of your rights at the time nor of the violations by the other side.
No edoggie, It isn't exclusive to New Jersey, that's a rule of civil procedure, applicable to all of us. And, I don't think it does conflict with the FCRA. The problem is, still is, that you didn't want to read before in the other threads and continuing still, YOU MADE AN AGREEMENT in lieu of having a judgment entered. The time for making your claims was PRIOR to that agreement or AT THE TIME those proceedings were going on. Ignorance of the law isn't a defense. You've just bad timing, that's all -- live and learn. And Search -- here's an old thread on negotiating judgments: http://consumers.creditnet.com/stra...threadid=11627&perpage=20&pgnum=&pagenumber=1 Sassy
Edgoggie: If you paid the collection agency when you found out you were being sued, I assume the suit was dismissed. If that's the case, I don't see how the rule you describe could apply. Since the case was never brought to judgment, you should be free to pursue an action against them. I'm not a New Jersey attorney but the rule that a parties must bring related claims in a single action is universal. At least here--in California--a volutary dismissal by the plaintiff does not bar a later action brought by the defendant in the first suit unless the defendant agreed to release the plaintiff from the claim (cross-claim) as part of a settlement agreement.
edoggie, dave got me thinking, This is from your previous thread, your statement: http://consumers.creditnet.com/stra...hp?postid=242035&highlight=edoggie#post242035 "Ok well the judgment was never entered. We agreed out of court that I'd pay the debt and the judgement would not be entered unless I defaulted on repaying the debt in 5 days. What I received was a summons so it never went into judgement. My point is, can they use the court system to threaten me to pay some debt if it's legally uncollectable ? They used the law to collect something that was legally unenforceable. That period of time had expired. It's like a cop telling you you must tell him the truth or else he will sentence you to prison. Only a Judge/Jury can do that not the cop. The cop used his power under the law to threaten you with something he cannot do legally. Thats my point. There has to be something I can do." Are you saying the CA threatened judgment, served you with a summons and it was THEN that you paid? You never went to court? If yes, there is NO judgment then, is that correct? Sassy
It doesn't really matter about the judgment not being entered. You have no claim for any violation. In order to claim a violation of the FDCPA the lawsuit would have had to have been KNOWN to be time-barred when they filed. Since SOL is not absolute, due to tolling (you could have lived out of State for a period of time, or been in a mental institution) the only way they would have known for sure, legally of the SOL being a valid defense, would have been IF you raised it at the time you were served.
WhyChat, I understand, that's just what I am asking. Was it filed? I'm guessing yes since there were subpoenas. If he made an agreement instead wouldn't it have been dismissed? It's starting to read like they made a deal in the parking lot and edoggie never saw the inside of a courtroom. Sassy
Edoggie, You have to go back to the other thread and I have to backtrack. The filing is still the problem, the filing itself. Sassy
If the basis of his claim for violation of the FDCPA is that the CA threatened legal action that was not legally pssible, then he cannot prevail, as the CA could not KNOW that the SOL was expired because the subject was not raised. Let me put it ths way. He gets sued,he answers with a SOL defense, he goes to court, the CA lawyer says to him ,"were you a resident of N.J. the entire past 7 years, he says, "well no, I was living in Cal. for 2 years, and spent a year in Canada." The SOL is tolled(suspended) for those 3 years. So if he sues the CA on the FDCPA restriction against filing an untenable action,he will lose as the CA COULD NOT know, to a certainty the SOL barred his lawsuit.
Grrr, This is confusing. Ok here are the facts then I'll let you guys rule on this I have about two weeks left if I'm gonna do anything. 1)Summons was filed with the court 2)I settled with the debt collectors out of court to avoid judgement. I never investigated anything I just gave in to whatever they wanted without checking out the debt. I didn't want wage garnishment showing up at my job in fear of losing my job. (My company is very strange about this) 3) I payed the amount asked by the Debt collectors over a period of about 11 months. 4) Judgment was never entered. When I finished paying I got backa noticed saying all claims by the plaintiff have been dismissed. SO.... now where do we stand? Do I still have a case ? The total amount payed out is a little over 2K. Is it worth it to go ahead and fight it ? I'd love to but don't know if I have a case.
Edoggie: Based on your last post in which you clarified the procedural posture of the case, I would say that what you call the "entire controversy doctrine" should not defeat any viable claim you may have against the colletor. This is not the same thing as saying that you have a good claim. I'm not aware of any law that says a collector is prohibited from trying to get money out of someone after the statute of limitations has run nor do I think that the collector has a duty to tell you that there is no enforceable debt. If this is the basis for your suit, it sounds weak to me. Generally, the obligation is on the defendant to raise the statute of limitations defense either in the answer or by way of a demurrer to the complaint. A demurrer (in some places and in federal practice it's called a motion to dismiss) is a motion that says that the complaint fails to state a cause of action or claim. The motion is usually a good one if it appears on the face of the complaint that the default occurred beyond the period of the statute. However, the defense may be waived by payment or failure to assert it in the answer or by motion. It looks like that is what happened here. I'm not a New Jersey attorney. For specific legal advice, you should consult one before making any decision about what to do.
