Changing a dismissal without prejudice to a dismissal with prejudice

[Oldad]

This is an Ohio case. I am not a lawyer, just an abused and fed up consumer. I was sued recently and for the second time by a collection agency, Asset Acceptance, but this time I came out on top, at least for the moment, and have a question I need answered. The situation is this. As is Asset Acceptance's pattern, when they filed the complaint I was not served properly, but this time I found out about it anyway and answered the complaint in a timely fashion so they could not file a motion for summary judgment, which is what they like to do and often get away with it. In my answer to the complaint I denied the debt within a motion for a more definite statement. They subsequently filed an interrogatories and admissions request, which I also answered, but I waited until the last day they were due and sent the answers by certified mail, return receipt requested. This is where someone in the plaintiff's lawyer's office screwed up. He or she evidently thought either that I did not file the answers or that I was late filing the answers, so they filed their motion for summary judgment, in which they claimed that since I did not answer the interrogatories I admitted the debt. I then filed a motion in opposition, pointed out the fact that I have already disputed the debt, enclosed a copy of the answers I had filed earlier, and also enclosed a copy of the return receipt which had been timestamped by the post office. Shortly thereafter plaintiff's lawyer filed a motion ex parte, apparently to speak to the judge to explain that they made a mistake. Telling anyone that the debtor does not dispute the debt when he has in fact disputed the debt is a violation of the law - see 15 U.S.C. 1692e (8), originally stipulated in the Fair Debt Collection Practices Act.. A few days later I received a copy of a motion for dismissal without prejudice from the plaintiff, which was followed the next day by a signed copy of the notice of dismissal and entry order from the judge. I was of course happy to have the case dismissed but I am dissatisfied that it was done "without prejudice". As I understand it, this means that Asset Acceptance can come back at me again a year from now on this same debt and make me go through this all over again. My question is this. Can I file an objection to the dismissal without prejudice and ask the judge to change it to a dismissal with prejudice?

[KJHOOK13]

Let me ask this: do you or do you not owe the debt or any portion of it to the creditor?

[cosine]

You can file any objection you like. That doesn't mean it will be acted on.

None of the processes or motions carried out established that the debt is not valid. They simply established nothing. Someone tried to sue. You disputed it. They moved to dismiss. It was dismissed. The case was simply not heard. The judge had no reason to believe it should be dismissed with prejudice, and had no such motion before him, anyway.

Yes, they can sue again if not SOL barred by then. Unless the facts change, dispute it again just as you did before, but this time make your own motion to dismiss with prejudice (and include all the evidence of the first time). Sometimes judges will do this even if there is no evidence you don't owe the money, just because the plaintiff isn't really pursuing a case. But that may not prevent the next CA they sell the account to from doing this all over, yet again.

[Oldad]

Thanks cosine. What you say makes sense. I am a pro se defendant and am learning a lot quickly. I should have asked the judge to dismiss the complaint with prejudice when I filed my opposition to their motion for summary judgment. I knew I had the advantage at that point but did not know how best to use it. Oh well now I know. Still I take comfort in the fact that Asset Acceptance's stock price is in the toilet and their net income is a third of what it was just three years ago - down from $45 million in 2006 to $15 million in 2008. The Internet is a great equalizer. Those of us who need and deserve a chance to start over again are learning how to fight back instead of being forced to file chapter 7 bankruptcy by the likes of them.