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Lucy, Esq.
Lucy, Esq., Attorney
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Experience:  Lawyer
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I sold a house in Ohio on a short sale in 2011 - then i moved

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I sold a house in Ohio on a short sale in 2011 - then i moved to Michigan. In Dec 2012 - I received a notice of Dismissal without prejudice - Case no.(NNN) NNN-NNNN- signed by the judge - the plaintiff was Asset Acceptance, LLC. I didn't even know they were trying to get money from me. So - I thought - great. Dismissed. Then - in April of 2013 - I received another notice of Dismissal without prejudice - Case no.(NNN) NNN-NNNN- signed by the judge - --- completely different paper - date - signature - but same case number. I was a little confused - didn't they realize they'd already done this? (I didn't know what without prejudice meant). I let this go. On 7/19/13 I was served with papers that I am being sued for this same thing - by the same place - Asset Acceptance ........ can they do that, when it has been dismissed twice - without prejudice?
Submitted: 11 months ago.
Category: Legal
Expert:  Lucy, Esq. replied 11 months ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today. I'm sorry to hear that this happened.

Unfortunately, a dismissal without prejudice does mean that the company can file the suit again. They are only prohibited from filing if the dismissal is with prejudice. In Ohio, the statute of limitations for breach of contract is eight years (reduced from 15 in 2012), so they have a lot of time left to try to collect.

One thing that you can do is look to see what the basis was for the prior dismissals, to see if you can ask that it be dismissed again. Asset Acceptance is a debt buyer. They have to be able to prove that they bought a debt that you owed, but you can raise any defense that you would have against the original creditor. So, for example, if the bank agreed to waive the balance due on the loan as part of the short sale, then you can defend on the basis of "accord and satisfaction". The bank agreed to accept a partial payment in full settlement of the loan. That's usually how a short sale works. Take a look at the documents. Unfortunately, you do have the respond to the lawsuit in order to avoid having judgment entered against you and you don't want to forfeit the right to defend yourself by not replying.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Customer: replied 11 months ago.


What about the fact that it was dismissed without prejudice twice? doesn't that matter? I thought if they dismiss it twice without prejudice that equals - with prejudice?

Expert:  Lucy, Esq. replied 11 months ago.
Was the initial case dismissed by the plaintiff? It sounded like it was dismissed by the judge. I'm sorry, I misunderstood what you were saying.

When a plaintiff voluntarily dismisses a case without prejudice, twice, yes, that's a total bar to refiling. Ohio R. Civ. P., Section 41(A).

But you still have to respond to avoid a default judgment (which you'd then have to go to court to get removed and try to repair your credit). That means filing a Motion to Dismiss on the grounds of res judicata. This document has some good arguments, as well as some cases you could cite.
http://cp.cuyahogacounty.us/internet/opinions/494438%20-%20NMIvPARKS.pdf
Customer: replied 11 months ago.

 


You are totally worth the money - but a few other things -


I'm in Michigan now


and I'm being sued in Michigan - not Ohio


so it's Michigan law ....


 


and yes - it says -


Notice of Dismissal by Plaintiff


Plaintiff/Attorney for plaintiff files this notice of dismissal of this case without prejudice as to: all defendants. - order to dismiss - and it's signed by the judge - the first one is dated 12/10/2012


then -


same thing again - dated 4/29/2013


signed again - by the judge


 


but - the case number XXXXX XXXXX same -(NNN) NNN-NNNN- not sure if that matters


 


It's two different signatures - but the same judge - it's stamped two different times -


 


Then - I get this one on 7/19/2013 - and it says - there is no other pending or resolved action within the jurisdiction of this - blah, blah -


it's the same exact court - same exact judge - same exact plaintiff and attorney - only a different attorney at the same firm signed it this time - is the only difference. Sorry - this is so much I know. I know I need to respond and I will - I will even get an attorney - I just want to know what you know about this and Michigan law as it pertains to this situation.

Customer: replied 11 months ago.
Relist: Other.
The answer was good - but I live in Michigan - I asked for information about Michigan - and I got information about Ohio (which is where the original debt was) - I think she might be looking up the answer - but I'm not sure what happened to her .......
Expert:  Lucy, Esq. replied 11 months ago.
I'm sorry for the delay - I stepped away to get lunch.

In Michigan, it's Rule 2.504(A)(1). (It's on page 110 of that document.)

it doesn't have to have the same case number XXXXX only the same cause of action by the same plaintiff against the same defendant.
Customer: replied 11 months ago.


I'm sorry - I tried to retract that relist - I am very happy with your response and answers - this is new to me and I wasn't sure how the response times worked . I will give give a rating when I'm done and it will be excellent. I hope that won't hurt you.


 


I was worried that because both dismissals without prejudice - have the same case number XXXXX they might not count as two dismissals without prejudice ......... I'm worried it could be an error - like they weren't aware they had already done it ......... do you think that would matter? I really think this is my last question - and again - sorry for not being more patient.

Expert:  Lucy, Esq. replied 11 months ago.
It's not a problem. I completely understand, and no, it doesn't count against me.

What the language of the rule says is that a second dismissal is treated as a dismissal on the merits when "when filed by a plaintiff who has previously dismissed an action in any court based on or including the same claim." (emphasis added).

So, as long as it's the same cause of action, the different case numbers don't matter. Any time a person files a new Complaint after a case is dismissed, they get a new case number.
Customer: replied 11 months ago.


I wish you lived in Michigan


 


Thank you!


 


 

Expert:  Lucy, Esq. replied 11 months ago.
You're welcome. I'm glad I could help. Have a good weekend.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 19639
Experience: Lawyer
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