Counterclaim Memo

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This memo involves my initial comments upon reading the Court’s Order on Plaintiff’s Motion for Class Certification dated January 23, 2017. The denial of the class claim for damages here can be disgusted in future cases because Indiana has a compulsory counterclaim rule, unlike Pennsylvania, New York State or the Federal Courts (which has a permissive rule on counterclaims). Where the Defendant teachers needed to bring its claim in the Indiana Class Action, or lose it to the compulsory counterclaim rule, that is simply not the case with Defendants in the repo notice class actions we bring in PA, NY or Federal Court. See Cosgrove v. Citizens on this point. I note that this is not the type of opinion that the Defendants can be entirely happy with as well. The Court did certify for declaratory purposes …show more content…

We may be able to take those consumers from the older class periods and argue that they are not subject to any counterclaims as the statute of limitations on that counterclaim has run. If we do so, we might want to consider amending the complaint to bring claims for a class seeking declaratory relief, including all the class members in the ten year period including those with deficiency balances and subject to counterclaims. A sub-class would involve a claim for damages for those consumers who are not subject to a deficiency set-off or counterclaim. Based on this Court’s opinion I see no reason why that type of Class would not be independently certifiable as it does not suffer from the same infirmities occasioned by the deficiency balances or judgments against some of the class members. A part from these observations, I’ll note that I find the opinion well-written, well-reasoned, and well-supported. I feel as if an interlocutory appeal challenge would not be wise. I do feel as if the opinion does give us some favorable paths to move forward in this

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