Next Steps on Small Claims case?

[legalpad2]

Jurisdiction

Illinois

I am a defendant in a small claims case in Illinois

When I submitted my answer in the last month I denied all claims. I was suppose to show up to court next week for the case/trial. The plaintiff earlier this week filed a motion to dismiss without prejudice.

I know this means they have the choice to refile or amend things and bring it back. I paid for the filing fees the first time and hoping to avoid the run around. Trying to find out what my next steps are. I do not have representation or trying to get any at this time since I don't think the plaintiff has a case at all.

Am I able to file a motion to dismiss with prejudice? Am I able to file something to get my filing answer fees back? Or do I just wait and see if they re-file down the road and same process happens again.

 

[Zigner]

You may be able to ask that the other party pay your filing fees, but why should it be dismissed with prejudice? There have been no facts presented that would tend to show that the case is not a valid one.

 

[adjusterjack]

Am I able to file a motion to dismiss with prejudice?

Why?

What would your grounds be?

Why were you sued?

 

[legalpad2]

There were no grounds or proof in the first place. It was from a debt collector for a credit card company. They never provided any original contract/signature with my name. It really didn't get that far in but I don't owe this money.

I am fine with not doing a motion for dismissal with prejudice...my point is if they can refile it again and I don't owe this money to begin with I am paying an answer filing fee everytime. Not a ton of money, but over $100 this time and something I don't owe. If they are able to bring this up again and I pay the fee, just losing money for no reason. Than what steps do I need to take so I get my answer fee back?

 

[legalpad2]

You may be able to ask that the other party pay your filing fees

What steps do I take to do this?

 

[legalpad2]

Why?

What would your grounds be?

Why were you sued?

No contract/signature or any paper trail given by plaintiff. Never provided any paperwork I requested and they are looking to dismiss it because of this reason. Throw in they didn't even have my address totally correct on the summons. Received something from lawyer office last July and I asked for proof of debt....never received anything...than lawsuit in April and still not able to prove anything after I requested multiple times.

 

[adjusterjack]

They never provided any original contract/signature with my name.

They wouldn't have to. For many decades credit cards have been obtained without signing anything. That doesn't make the contract any less enforceable as there is other evidence of the card holder's agreement.

Than what steps do I need to take so I get my answer fee back?

You'll need to show that the plaintiff filed a lawsuit just to harass you and had no intention to pursue it. Ask for a dismissal with prejudice and an award of your answer fee.

The process may differ with your court and I don't guarantee anything.

 

[legalpad2]

They wouldn't have to. For many decades credit cards have been obtained without signing anything. That doesn't make the contract any less enforceable as there is other evidence of the card holder's agreement.



You'll need to show that the plaintiff filed a lawsuit just to harass you and had no intention to pursue it. Ask for a dismissal with prejudice and an award of your answer fee.

The process may differ with your court and I don't guarantee anything.

Thanks! Yeah I get it just find it weird if it technically isn't closed and than can re-open it that I would have to pay another answering fee, etc.

When filing that, do I just ask for both of those on the same motion form? I don't follow much court lingo/language but trying to do this without getting a lawyer as know I don't owe this money. I have a courthouse in town so I go in person to file....just they can't give legal advice or trained in it to give it out.

 

[adjusterjack]

You should be able to respond to the Plaintiff's motion and ask for relief in the same document.

Here's some information about motions from the Illinois court website.

Motion Forms | Office of the Illinois Courts

 

[zddoodah]

The plaintiff earlier this week filed a motion to dismiss without prejudice.

Has the motion been granted and the case dismissed?

Am I able to file a motion to dismiss with prejudice?

We have no way of knowing your abilities. The better question is whether there is any basis in fact or law to seek dismissal without prejudice. Is there? I assume that if such a basis did exist, you'd have filed a motion to dismiss instead of an answer.

Am I able to file something to get my filing answer fees back?

No.

There were no grounds or proof in the first place. It was from a debt collector for a credit card company. They never provided any original contract/signature with my name.

The debt collector doesn't have to provide its evidence before suing you. Obviously, you know or should know whether a signed agreement exists. However, you can't prove a negative. Also, I've got a bunch of credit cards for which I never physically signed a contract. Doesn't mean the issuers of those cards couldn't successfully pursue me if I failed to pay.

If they are able to bring this up again and I pay the fee, just losing money for no reason.

If it were to happen again, you could argue that the plaintiff was acting in bad faith and ask for a judgment in the amount of your filing fee. However, until and unless another case gets filed, it's a non-issue.

 

[legalpad2]

You should be able to respond to the Plaintiff's motion and ask for relief in the same document.

Here's some information about motions from the Illinois court website.

Motion Forms | Office of the Illinois Courts

Thanks for the help!

Yeah I know what form that is....they just have a ton of forms that go with all sorts of things so know exactly what it looks like in person stapled, have to file, send copy to them in mail, etc.

 

[legalpad2]

Yes, the case is dismissed.

I did not sign up or have this credit card ever. Maybe I was told the wrong thing but when I went to the clerk's office they said I had to answer first. That is what I did and never made it to any trial or have to show up for anything before the plaintiff asked for dismissal. If anything, I should have filed my answer first and than filed the motion to dismiss.




Yes I am aware, hence why I am trying to save money and not get a lawyer. I have no fear of losing this case. It is more of me losing money I guess it would be on the filing fee. If they would do it again, etc. Never signed up for card, initialed for it, applied for it, etc. Think they were hoping for a no answer and judgement.



This is why I am on a legal forum. Because you are saying no I can't ask for filing fee money back this time, other person on here said I can. Not saying it would be approved, but two different versions and that is why I am asking. Only time I have had this happen so the legal lingo and filling out the right forms is confusing at times.

 

[zddoodah]

Yes, the case is dismissed.

Then there's nothing to discuss. If the plaintiff ever refiles, then there might be something to discuss at that time.

you are saying no I can't ask for filing fee money back this time, other person on here said I can.

"adjusterjack" suggested that, in your response to the plaintiff's motion to dismiss, you request dismissal with prejudice and/or an order for payment of your fees. However, since the motion has been granted and the case dismissed, that opportunity no longer exists (and, IMO, such a request never would have been granted in the first place).

TBH, requiring a defendant pay a filing fee in small claims court is BS, but that's a different issue.

 

[adjusterjack]

This is why I am on a legal forum. Because you are saying no I can't ask for filing fee money back this time, other person on here said I can. Not saying it would be approved, but two different versions and that is why I am asking

I suggested a method with no guarantees. It costs you nothing to try it. The judge will decide. After all, small claims court is informal and rules are relaxed.

 

[legalpad2]

Exactly my point......

Isn't worth my time spending more on hiring a lawyer so on here. Already paid the answer fee so I might as well at least request in a motion that they cover the filing fee charge. If not approved, than so be it.

Do appreciate the input from both sides

 

[welkin]

OP, after you requested the proofs that you owed the debt and it wasn't complied with, the debt collector violated the FDCPA.

Received something from lawyer office last July and I asked for proof of debt....never received anything...than lawsuit in April and still not able to prove anything after I requested multiple times.

You missed the boat when you didn't answer the small claims complaint with a counter claim that there is a violation of the FDCPA. But it is not too late to do so by suing the collector. There are monetary remedies for such violations. You have one year to act from the date of the violation.

I suggest you use the link above to read a summery of the Act.

 

[Zigner]

OP, after you requested the proofs that you owed the debt and it wasn't complied with, the debt collector violated the FDCPA.

What part of the FDCPA do you think the debt collector violated? They only would have had to provide the requested information if they were going to continue collection efforts. They chose to discontinue collection efforts and take it straight to court...

 

[Tax Counsel]

You missed the boat when you didn't answer the small claims complaint with a counter claim that there is a violation of the FDCPA.

If there was a violation of the FDCPA there is a remedy under that law to pursue damages. But the FDCPA in no way limits collectors from filing lawsuits and does not require the collector to notify the defendant first that it intends to do so. In some jurisdictions violations of the FDCPA can result in dismissal of the claim, however. So what is the FDCPA violation that you see here?

OP, after you requested the proofs that you owed the debt and it wasn't complied with, the debt collector violated the FDCPA.

Actually, that doesn't violate the FDCPA and the alleged debtor cannot get sanctions for the creditor simply failing to provide the proof demanded in a letter that meets the FDCPA requirements. The violation would occur if the collector continued collection efforts after the request for proof of the debt was received by the collector and no response was provided to that request. If the creditor never provides the proof but ceases all collection efforts, then there is no violation. Congress wrote it that way because the debtor's objective of ceasing harassment over the debt has been achieved with the letter.

And the thing is, the FDCPA does not regulate the litigation process. So a filing of a lawsuit to collect the debt before providing would not be an action that triggers a claim under the FDCPA. The reason for that is quite simply that for the plaintiff to win, the plaintiff will have to provide proof of the lawsuit. The FDCPA is meant to deter the harassment of debtors by collectors that occur prior to litigation.

 

[welkin]

But the FDCPA in no way limits collectors from filing lawsuits and does not require the collector to notify the defendant first that it intends to do so.

I didn't say otherwise.

Received something from lawyer office last July and I asked for proof of debt....never received anything...than lawsuit in April and still not able to prove anything after I requested multiple times.

Validation of Debts The debt collector must provide the consumer with certain basic information. If that information was not in the initial communication and if the consumer has not paid the debt five days after the initial communication, the following information must be sent to the consumer in written form: • The amount of the debt; • The name of the creditor to whom the debt is owed; • Notice that the consumer has 30 days to dispute the debt before it is assumed to be valid; • Notice that upon such written dispute, the debt collector will send the consumer a verification of the debt or a copy of any judgment; and • Notice that if, within the 30-day period, the consumer makes a written request for the name and address of the original creditor, if it is different from the current creditor, the debt collector will provide that information. If, within the 30-day period, the consumer disputes in writing any portion of the debt or requests the name and address of the original creditor, the collector must stop all collection efforts until he or she mails the consumer a copy of a judgment or verification of the debt, or the name and address of the original creditor, as applicable.

The violation would occur if the collector continued collection efforts after the request for proof of the debt was received by the collector and no response was provided to that request.

A few things we don't know are (1) who owned the debt , (2) was the attorney acting as the debt collector and (3) who was the plaintiff in the suit? Was the debt assigned or purchased?

I would have answered the complaint with a counterclaim alleging a violation of FDCPA and let the court decide. At least I would have had a chance of recovering my fees.

 

[legalpad2]

I didn't say otherwise.






Validation of Debts The debt collector must provide the consumer with certain basic information. If that information was not in the initial communication and if the consumer has not paid the debt five days after the initial communication, the following information must be sent to the consumer in written form: • The amount of the debt; • The name of the creditor to whom the debt is owed; • Notice that the consumer has 30 days to dispute the debt before it is assumed to be valid; • Notice that upon such written dispute, the debt collector will send the consumer a verification of the debt or a copy of any judgment; and • Notice that if, within the 30-day period, the consumer makes a written request for the name and address of the original creditor, if it is different from the current creditor, the debt collector will provide that information. If, within the 30-day period, the consumer disputes in writing any portion of the debt or requests the name and address of the original creditor, the collector must stop all collection efforts until he or she mails the consumer a copy of a judgment or verification of the debt, or the name and address of the original creditor, as applicable.



A few things we don't know are (1) who owned the debt , (2) was the attorney acting as the debt collector and (3) who was the plaintiff in the suit? Was the debt assigned or purchased?

I would have answered the complaint with a counterclaim alleging a violation of FDCPA and let the court decide. At least I would have had a chance of recovering my fees.

Portfolio Recovery got it from Synchony Bank. Never heard of either of them until I received the lawsuit. Portfolio was the one trying to get lawsuit against me but they had a law firm they hired and that law firm asked court to dismiss the case without prejudice after I denied all claims against me in my answer.