Fellow creditnetters I need your help. A year ago I was getting repeated phone calls from a CA and sent c/d letter. After proof they recieved it, they continued to call me for about a month after. I have caller ID photos of it. Hired an attorney and filed in federal court. He stated it was the best case he had ever seen as far as documentation. We lost. Judge through out the case before we went to trial. So we were a little sad about this. But today I get a call from my attorney saying that the defense attorney has made a motion to countersue for attorney fees and court cost in the amount of 14k. What can I do? I am so scared at this point. I have little faith in my attorney!!! I thought they couldn't countersue if it was a legitimate complaint.. I appreciate any advice folks, thanks ..
Judge said that she didn't think that the CA was deliberatley calling. We had sent a c/d letter and had proof that they recieved it. They continued calling both human and automated machine leaving messages on our answering machine. This continued for at least a month after we sent the letter. We had very good pictures of their number on called id. They denied that they had called and said that wasn't their number. No catches to this case, nothing Im not including, just as simple as can be and the judge didn't even let this go to trail. I am very concerned to the fact that we never got a chance to go to trial. The judge is totally against the consumer in this district. Thats fine I can stand to lose and have moved on, but having to pay the C/A attorney fees of that amount is absolutley nuts!!! Butch I'm going to email you right now..
Re: Re: being countersued by CA for Quigs-- was your case dismissed with or without prejudice? If it was without prejudice you may consider refiling and demanding a jury trial. Just because the judge didn't like your case doesn't mean crap if she didn't preclude you from refiling. You may also think about changing the venue a bit. How about state court? Small claims? The closer you keep it to you and people that YOU elect the more likely you are to get a hearing of your complaint on terms that are favorable to you. Thats my two cents worth..hope it helps.
Re: being countersued by CA for 14K One other thing... a CA CAN call you ONE more time after you send a full C&D to tell you that: 1) to advise the consumer that the debt collector's further efforts are being terminated; (2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. Did you answer any of the calls and record them on tape? If not, then you screwed yourself. All the CA would have had to do is to tell the court that they were tryig to call you to tell you they are terminating their efforts to collect on the account. Poof... all the documentation in the world wouldn't help you...
OK, let's take a couple of seconds and really see what's going on here. First, let's understand under what corcumstances a party can sue for reimbursement of their own legal fees: It is a long established fact in our adversary legal process that each side pays their own legal fees, with two exceptions. Those exceptions are: 1. Prior contractural agreement wherein the loser agreed to reimburs ethe winner's legal fees, and 2. Cases where suit was brought "in bad faith". Bad faith has been very narrowly interpreted, and for good cause - to broadly allow suit by the winner against the loser fopr wide pruposes would discourage litigants from vigorously defending their legal rights. In order to prevail in a suit for reimbursement of a winner's legal fees, the suit had to have been brought by the loser in order to harass or otherwise obstruct the other side, with little or no chanmce of success in the suit. I believe this is teh type of suit you are facing. In your original suit, you alleged FDCPA violations and brought suit. FDCPA is intended by Congress to be "self-enforcing", meaning the primary method of enforcement was intended by Congress to be suits by aggrieved consumers. To allow countersuits for reimbursement of the costs of defending those suits (that Congress intended) would eb a de facto gutting of the primary enforcement tool of the law, and contrary to the intent of Congress. Therefore, suits of this nature should only prevail when the FCRA/FDCPA suit is brough in bad faith - with no evidence, no prima facie case at all. The question of whether or not a collector is permitted to call ona specific date and whether or not a collector's call is a violation ofa C&D letter is a matter for the Trier of Fact to determine (read that "the Court"), and if that was the sole grounds for the countersuit, then above is your counter-argument. In fact, if taht is the sole argument being raised, then YOU may have a very reasonable argument that YOU have the right to sue THEM for the costs of defending against THIS suit, since their attorney is supposed to know taht they are suingf over something that is contrary to public policy - you cannot sue if the sole issue in teh suit is one that has to be decided by a trier of Fact.
Re: Re: being countersued by CA for 14K I think I have found the answer, in a real "The shoe is on the other foot" way. http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&threadid=59688 Heintz v. Jenkins... The debt collector attorney argued that if attorneys were considered debt collectors, they would be subject to countersuits under the FDCPA if their cases lost at trial. In other words, just because the judge who presided over your suit ruled against you, this does not mean that the law suit which you brought against the CA was completely frivelous, and completely without merits, and intended only to harrass the debt collector. Which are essentially the requirements that they need to prove to stick you with the bill for their legal services.
