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cutebrowneyedgirl43

Once court rule small claims case closed can debt collector take me back to court again 2 years later

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In January 2011 I went to court for a small claim debt collection....after a few showinings in court it eventually was dismissed because the plaintiff didn't show for court. But the paperwork the court show for that date say the case was closed without prejudice. Now two years later, the same collection agency is attempting to take me back to court for the same debt with a new case number. Are they allowed to do this? It seems like harrassment. i went to all the court dates before and it got dismissed do I really need to go thru all the ^(^&&^ again?

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but under what circumstances would the court dismiss the case without prejudice? originally the case when I was in the courtroom the judge said it was dismissed because the other party wasn't present....if i would have thought of it I would have gotten papers stating that, it is now the papers say without prejudice so is there anyway to argue that there is an error in the paperwork because there is now way it could hae gotten dismissed without prejusice if both parties were present at the time?

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But isn't there someway that I can show there is an error in their paperwork? Originally the last court case the case was dismissed entirely because the plantiff (the creditor) didn't show...so why would they close a case without prejudice based on them not showing and on top of that they then open a NEW case 2 years later? Everything I've read online says that they have within 1 year to refile if a judgement is not filed within their favor (and that is if the SHOW UP FOR COURT) and after that it becomes more difficult to get it reopened. So why are they allowed to file again now after a no show and a waste of my time last time? How do I get someone to see that the court records of being dismissed without predjudice don't make sense if both parties were present at the hearing and that the real reason it was dismissed was because the plantiff did not show for court?

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but under what circumstances would the court dismiss the case without prejudice? originally the case when I was in the courtroom the judge said it was dismissed because the other party wasn't present....if i would have thought of it I would have gotten papers stating that, it is now the papers say without prejudice so is there anyway to argue that there is an error in the paperwork because there is now way it could hae gotten dismissed without prejusice if both parties were present at the time?

There two possibilities for a dismissal: either with prejudice or without prejudice. The former means that the plaintiff cannot refile the same claim again later. The latter means that the plaintiff is not barred from filing the claim again.

A dismissal with prejudice is generally occurs when it's clear to the court has that there is simply no way that the plaintiff can make his case if he was to file again later. A good example of this is a dismissal based on the expiration of the statute of limitations (SOL). Once the SOL is gone, nothing the plaintiff can do later will cure that problem. So, the court would dismiss that with prejudice because there is nothing the plaintiff can do to overcome the problem.

A dismissal that is the result of the plaintiff failing to show up is generally going to be dismissed without prejudice. That’s because the fact that the plaintiff failed to show doesn’t mean the plaintiff couldn't make his case if he were to file again and litigate the matter to conclusion. The basic philosophy here is that the courts prefer to decide cases on the merits rather than procedural grounds where possible. In other words, the courts try to give everyone their day in court to argue present their case.

Your options now will depend on the laws and court rules that apply, and you did not say in what state and type of court the case was filed. First, check to see if the SOL for suing you has passed. If the SOL is gone, that’s a good defense you for you. If it is still open, you might still be able to get it dismissed, this time with prejudice, if you can show that the 2 year delay has significantly damaged your ability to present a defense to the claim. However, simply having to deal with the aggravation of the litigation again isn’t likely to be good enough to get it dismissed.

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The small claim suit is for a credit card debt in Wisconsin that is about 4 years old. Our problem with the debt is that over 70 percent of it is over the limit fees and lates charges that the company kept the card open well after it could have closed it just to collect on these fees. I am bipolar and was well off of my meds at that time and had no control over the card spending to get it that high in the first place, don't remember any of the charges on it so we have asked for a breakdown of the bill and they were unable to provide it for us 2 years ago so we doubt they will now, and overall don't really remember anything about the card in the first place, more so even now now that 2 more years have gone by. We had asked for copies of all the charges back in the first hearing since I had no recollection of making them and whether they were in fact mine or not and they were unable to provide them so how do I handle it now 2 years later and i am even more unlikely to remember the charges. Having been manic and bipolar at the time of the charges I honestly have no recollection of any of this and was hospitalized shortly after because of my manic behavior.

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Sorry, but your mental condition is no defense.

The Wisconsin statute of limitations is 6 years so the Plaintiff has the right to refile.

All you can do is go to court and see how it goes.

There's probably no question that you owe the money. It's just a matter of how much.

Even if the plaintiff can only prove part of it, the plaintiff is likely get a judgment against you, which will likely include the plaintiff's attorney fees since WI small claims court allows attorneys and credit card contracts generally have an attorney fee provision.

See the WI guide to small claims for additional informaiton about the process.

http://www.wicourts....d=2&language=en

It also appears (from that guide) that you are required to file a written answer.

There is also no discovery in small claims so you'll have to wait till you get to court to see what kind of evidence the plaintiff has.

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Our big thing at the time is that our loser ex-sister inlaw was living with us at the time which is why we wanted to see the copy of the original charges. We were debating filing charges againsnt her but we needed proff that she had used the card and in order to get that we need to get the copies from the collection agency. We already had one police report against her on breaking and entering into our former appt and stealing on unknown amt of cash which the asst.dist. attn. would not prosecute because it was family. So we know she is capable of taking this card and using it. now 2 years later and still now break down of these charges it only makes it harder to prove that she made the charges. so now how do we handle this case?

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Our big thing at the time is that our loser ex-sister inlaw was living with us at the time which is why we wanted to see the copy of the original charges. We were debating filing charges againsnt her but we needed proff that she had used the card and in order to get that we need to get the copies from the collection agency. We already had one police report against her on breaking and entering into our former appt and stealing on unknown amt of cash which the asst.dist. attn. would not prosecute because it was family. So we know she is capable of taking this card and using it. now 2 years later and still now break down of these charges it only makes it harder to prove that she made the charges. so now how do we handle this case?

Again, you wait till you get to court and see what kind of evidence is presented by the plaintiff.

Chances are, though, that the record of charges won't identify who made the charge only that the charge was made to the card using the proper PIN or password.

If there are charges that you don't recognize but were made on the card anyway, that will be no defense to you owing the money.

Once the credit card lawsuit is over, you'll have the option of suing your ex sister-in-law for any unlawful charges that she made on the account. Once you file suit against her, you can subpoena the non-party credit card company for any records they might have of the charges. But, as you say, good luck proving anything against your ex sister-in-law.

When all is said and done, I'm afraid that you will be taking all the heat for the debt.

If it's a lot of money, you might want to consider bankruptcy.

If it's only a few thousand you might want to consider negotiating a cash settlement before you get into the courtroom.

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Without prejudice means it can be filed at a later date as long as the claim against you is within the statute of limitations. I would consult with an attorney to determine whether the claim is within the statute of limitations.

Edited by FindLaw_AHK
As per the Community Guidelines, links to personal web pages or blogs may be included in the signature line. Other personal or identifying information in this post has been removed. -Moderator

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On 2/13/2013 at 4:56 PM, cutebrowneyedgirl43 said:

Our big thing at the time is that our loser ex-sister inlaw was living with us at the time which is why we wanted to see the copy of the original charges. We were debating filing charges againsnt her but we needed proff that she had used the card and in order to get that we need to get the copies from the collection agency. We already had one police report against her on breaking and entering into our former appt and stealing on unknown amt of cash which the asst.dist. attn. would not prosecute because it was family. So we know she is capable of taking this card and using it. now 2 years later and still now break down of these charges it only makes it harder to prove that she made the charges. so now how do we handle this case?

What this person failed to mention is that if you're on disability for your condition and your means of income is your monthly check then if your don't show up in court and they win the case. They can't garnish your monthly check! The law doesn't allow garnishing SSI/SSA checks. Only if you're employed then they may can get a garnishment to garnish payments from employee checks, but then there are court documents that you can get at the courthouse to file asking the Judge to stop the garnishment. In many States it is illegal yet courts allow it unless you file the proper court papers to stop it.

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43 minutes ago, Cher said:

What this person failed to mention is that

 

This is a six and a half year old thread.  Why the f*** would you resurrect it and write a bunch of stuff that has no relevance to anything that the OP wrote?!

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