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APPROPRIATE ACTION/MOTION RE: CAPIAS ON DISMISSED CASE - HOPING TO GET STATUS CHANGED TO "WITH PREJUDICE". SANCTIONS?/MISCONDUCT

Southbridge, MA |

Hello & Thank you in advance. Case re: old credit card debt that "expired"/statute of limitations was up September, 2011. Initial "complaint" filed in April, 2011, Summary process n April, 2012 & default judgment made April, 2012. *NEVER* knew anything 'til months later - OLD/unreliable address :( Successful in having default vacated in August, 2012. Plaintiff's missed new date in October, 2012 and case dismissed "without prejudice". No further activity until a week ago when I recieved (@ SAME OLD address/though they have correct one from court docs. - a CAPIAS. LOTS of stress/anxiety later - and a phone call to their office/left message re: CAPIAS - CAPIAS retracted from Sherriff's office. I WANT to end this permanently. Sanction, motion for "with prejudice" for Plaintiff Misconduct?

Attorney Answers 1

Posted

You could hire an attorney to file a motion to modify dismissal to "with prejudice" given circumstances. You may also have claims against the collector for violations of the Federal Fair Debt Collections Practices Act (FDCPA)...which has some steep penalties in certain situations.

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8 comments

Asker

Posted

Thank you! I was planning on doing the first part on my own, but wanted more input to be sure there wasn't something more appropriate to do given the seemingly strange circumstance of a CAPIAS on a dismissed case. I've spoken to two Attorneys yesterday via phone and both just sounded confused - I get that it's not a typical sounding situation - but the Attorneys sounding "confused" didn't give me faith/clearer course of action :0 Thanks so much - maybe I need to seek out a specific type of Attorney - I thought it might be "simple" for any Attorney - but it didn't sound like it from the conversations I had - it almost made me feel like continuing to represent myself was the way to go. Claims against the collector though I'm pretty sure I'd want an Attorney for...still confused, but Thanking you much for the input!!

Travis J. Jacobs

Travis J. Jacobs

Posted

It is definitely not your typical situation, so I wouldn't hold it against the other lawyers. It's tough to give definitive answers on unusual circumstances. I would file a motion to modify the order of dismissal. That should do the trick, and it will at least get you in front of a judge who can modify the order. As for claims against the debt collection company, it sounds like they've violated the FDCPA for sure. How much was the underlying debt? Did they continue to try to collect the debt after dismissal? (seems like they did from what you wrote).

Asker

Posted

Hello and Thank you - and fair enough re: the lawyers input and the circumstances being unusual. I'm definitely going to file themotion to modify asap. I had to go back and check old credit reports and find the documentation re; the numbers. The original owed amount to the CC company was $3, 135. After that it's on another old credit report under the Plaintiff's business/collector or JDB and it's reported as $6,082. At filing date for this case August of 2011 *(ridiculously LONG time ago/wrong address, etc.) they filed the amount as $7, 180.54. When they won the default judgment on 4-4-12, the amount was $8, 024.79. That judgment was vacated last August, 2012 and then case dismissed w/out prejudice October, 2012. I hadn't heard anything from them *at all* re: anything until their letter of 3-26-13 accompanying the CAPIAS encouraging me to contact them to discuss this matter "before a Deputy Sheriff arrests you." They note the outstanding balance on the top of that letter as $8, 917.08. So they were trying to collect then/with that letter for certain. *I know that's a bunch of figures/facts and appreciate anything you have to offer. *One other concern is whether I need to do anything/file a motion to have the CAPIAS lifted - since that's under a different docket number/SP b/c it's on the initial money judgment :0 The Plaintiff's letter to the Sheriff's office asks that he send it back without serving if possible (though they knew I'd been served since *I* contacted them about it), and the Deputy Sheriff confirmed I was all set/didn't need to come to court that day -but i'm wondering about the paperwork of it being closed/what has to happen. To a law abiding citizen - and a Mother of two small boys who are almost-always with me, it's pretty distressing. My sincere thanks for your time and any input.

Travis J. Jacobs

Travis J. Jacobs

Posted

Well, I would prefer not to get too detailed here where I don't actually represent you. I think youre on the right track though as far as dealing with it. You may have luck speaking to the SP clerk re the Capias and how to 'terminate' its effectiveness. That being said, if the debt collector sent you a capias after the case was dismissed and cont'd to demand the funds...I think you'd have a case against it for violating the FDCPA. In addition, the escalation of the debt amounts seems outrageous, but it could be due to adding collections/atty's fees to the debt, which may have been allowed by contract on the debt you incurred. It depends on the language of the contract, but you should pursue it. I would be willing to review all the paperwork if you contact me directly by phone. If possible, it would be my preference to meet in person, but if you are located far outside Boston I could make other arrangements.

Asker

Posted

Thank you and *very understandable/I realize you don't actually represent me. You have given me good input and I appreciate it. I do think the inflated amount is due to interest and attorney/filing fees. Frankly, the debt is so old I can't imagine I have the original contract to reference - but I'd bet they don't either...? We are about an hour away from Boston. The Attorney for the Plaintiff is actually a Boston attorney. I'm out LOTS of time, incurred LOTS of stress and have spent small money amounts on the case - in mailing/copies, gas, etc. as well as my son's father taking time off so I could attend court/go to the clerk's office. The biggest 'toll" has absolutely been the stress and time loss though - and that fact that a Capias was *ever* issued will always disturb me. I would *love* to think I could even recoup a small amount plus attorney's fees if I made a claim against them...I guess I'm weighing the "what do I have to lose" part. I'm taking down your number regardless!

Travis J. Jacobs

Travis J. Jacobs

Posted

You are very welcome. I hope it all works out either way. Let me know if you'd like to pursue the possibility of an FDCPA violation when youre ready.

Asker

Posted

Attorney Jacobs - I'm not sure if you will still see this...I have been researching more than a bit on FDCPA violations and yes, certainly think I should puruse some sort of claim against them. At this point it's taken so much time, energy and peace of mind from me that it feels more worth moving forward than not. I'm going to contact you re: that and see if we could possibly work together. I'm wondering/was just about to submit the motion re: modifying the judgment and am just wondering if I should include anything other than what I might be thinking - I'm really anxious to send it out to close that chaper/have it in motion. I've written up a pretty formal/standard Motion w/Plaintiff misconduct, failure to comply w/the previous court judgment and will include violating the FDCPA laws - just wanted input to be sure I wasn't doing anything incorrect/inappropriate - even in relating to a further case. Hope that's simple and please let me know if number on the web site is most appropriate way to reach you...? **Or certainly if you feel it would be appropriate/case-wise. Many thanks!! *(And hope in the rest of life you have a wonderful weekend! :)

Travis J. Jacobs

Travis J. Jacobs

Posted

Feel free to give me a call on Monday.

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