I was sued by a debt collector in Texas for $4,364.83 and was served on July 14. I responded right away by filing an answer and a motion to compel arbitration with the court, and I sent a copy to the collection agency.
Two weeks later, the collection agency sent a letter stating that the case was dismissed without prejudice, meaning they can refile it in the future.
How can I get it dismissed with prejudice so it’s permanent?
I’ve heard that if you file an answer and a motion to compel arbitration, the case cannot be dismissed without prejudice. I’m not a lawyer, but I was told this is true. Filing a Motion to Dismiss is an option, but what should I include in it?
Do I need to file a motion to dismiss if the plaintiff wasn’t present on the court date and the case was dismissed? What’s the best way to handle this?
I’m not a lawyer, but I know that the court’s Rules of Civil Procedure must be followed. If the rules for your court allow a plaintiff to voluntarily dismiss a case without prejudice, they have the right to do so, and you can’t change that. As long as they followed the correct procedures, their actions are within their rights.
The rules apply to both parties. If you had to dismiss a case for any reason, you’d want the option to refile. If the other party could step in and prevent you from re-filing, it wouldn’t be fair.
Regarding whether a case can be dismissed without prejudice after an arbitration demand, that information should be outlined in the specific rules for your jurisdiction. Rules can vary by state, so it may apply in one state but not another. You’ll need to find the exact rule that supports what you were told.
That said, the chances of the plaintiff refiling the case against you are probably low, since they know you’d just submit another motion to compel arbitration.
These are the relevant details regarding Rule 41 in Texas:
Yes, voluntary dismissal without prejudice is permitted, but that doesn’t prevent the plaintiff from filing again. I’ve been informed that in Texas, the judge holds the ultimate authority, and if the judge rules in my favor, the matter is settled. I filed my Answer along with a counterclaim, specifically to “Compel Arbitration.”
There’s another rule that states if you file an Answer, you can ask for dismissal. Rule 41(a) allows the plaintiff to dismiss their lawsuit if the defendant (you) has not filed an Answer to a Motion for Summary Judgment. The plaintiff may dismiss a lawsuit without a court order based on Rules 23(e), 23.1(c), 23.2, and 66, along with any relevant federal statutes, if:
- An Answer or Motion for Summary Judgment has been served before a notice of dismissal is issued.
There are only two situations where a dismissal is allowed if the defendant has taken such action:
- The defendants agree to dismiss the case; or
- The judge overseeing the case dismisses it.
A voluntary dismissal means that if the case is filed again, any dismissal in this new case will result in a permanent end to the case. If the defendant has filed a counterclaim, the case can only be dismissed if that counterclaim is still active.
Also, are you referring to the Federal rules or the state court rules? Federal rules have a Rule 41 for dismissal, but I’m unsure if the dismissal falls under Rule 41 in Texas state court rules. Here are the Texas state court rules.
A claim is essentially a request for relief. Look at the claims made against you; they assert that you did something wrong, such as opening an account, defaulting, and not making payments. They are asking the court for relief, which in this case is the amount they say you still owe.
A counterclaim is similar. It involves alleging that the other party did something wrong. For example, if the plaintiff is a debt buyer, you could claim they violated the FDCPA or Texas debt collection laws. You would need to specify the statutes and sections they violated, explain how they violated them, and request monetary relief based on those statutes. The FDCPA allows for up to $1,000 in damages if violations are proven, so having proof is essential.
In summary, a counterclaim is like a claim in that you assert the other party did something wrong and seek the court’s relief.
A move to compel is, well, a request for the court to take action. A counterclaim refers to a demand made on the opposing party. Someone else filed a claim against you. It stated that they are due the amount you opened an account with and failed to pay.
You’re asking the court to decide that arbitration should be used to settle the complaint, even though your motion just asserts that arbitration is covered by the agreement. A motion is not used to make a counterclaim.
You could inquire with a local debt defense lawyer. A lot of lawyers offer free consultations; some even offer phone consultations.
I’m not a lawyer, but it’s unlikely they will file against you again once they see you are actively responding and submitting motions for arbitration. I recommend keeping an eye on your mailbox for any official communications from the court or an arbitration company, so you don’t miss any updates regarding whether they proceeded with arbitration.
From my research, I found that nearly 90% of people sued for debt either don’t respond to the lawsuit, resulting in a default judgment for the creditor, or they reach out to the creditor before the lawsuit progresses and settle the matter. The reality is that there are tens of thousands of these cases processed, and for creditors, it’s often a numbers game, weighing the opportunity cost. If you have significant debt, they may be more inclined to pursue recovery, but hiring their own lawyers incurs costs, and at some point, it may not be worth it for them.