Litigation: Counter Suing the Plaintiff, Counterclaim and Reply

4 Comment(s) | Posted |

What happens if the Defendant also has potential legal claims against the Plaintiff?  When the Defendant has legal rights which have been affected by the Plaintiff, the Rules of Civil Procedure allow the Defendant, in a manner of speaking, to bring his own suit within the action already filed by the Plaintiff.  The way the Defendant does this is by including what are called Counterclaims within the body of the Answer.

Counterclaims are set forth in basically the same manner as the allegations of the Plaintiff's Complaint.  Counterclaims which arise out of the same facts or occurrences described in the Complaint are called Compulsory Counterclaims as they must be brought within the existing lawsuit.  Other Counterclaims which exist between the Defendant and the Plaintiff but do not arise out of the same events and occurrences are called Permissive Counterclaims.  The Defendant may either bring these claims within the existing litigation or file a separate lawsuit to recover.  The Defendant is allowed to counter-sue within the existing lawsuit by setting forth its own numbered paragraphs containing its own factual allegations.  In a way, it is as if the Defendant is submitting her own Complaint at the same time she responds to that of the Plaintiff.  Any Counterclaim gets served on the Plaintiff at the same time as the Answer.  Since the roles in a Counterclaim are reversed (the Defendant is suing the Plaintiff), the Plaintiff now has the same obligations the Defendant had in regards to filing and serving its responsive pleading.

Instead of being called an Answer, this new responsive document is referred to as the Reply.  As with the Answer, the Plaintiff is allowed Thirty (30) days from receipt of the Counterclaim in which to file the Reply and she can extend that period up to Sixty (60) days.  When replying to the Counterclaim, the same rules regarding judicial admissions and denials apply.  In addition, the Plaintiff must raise any Affirmative Defenses to the lawsuit, or else it loses them.  A special rule for the Reply is that when the Defendant raises the defense of contributory negligence, the Plaintiff must include the affirmative reply of Last Clear Chance.  This just means that if the Defendant wishes to argue that the Plaintiff's own lack of care caused the Plaintiff's injury, the Plaintiff can argue that the Defendant was in the best position to prevent the injury from occurring (the last clear chance to avoid the accident).  Again, it is very important that the Plaintiff be careful in how it responds to the allegations of the Counterclaim and raises all applicable Affirmative Defenses so as not to negatively affect the case.  After all of the required pleadings are filed and served on all parties, the parties proceed to the evidence-gathering stage of litigation.  Attorneys commonly refer to this stage of the litigation as Discovery.

Comments

  1. andrzej madura's avatar
    andrzej madura
    | Permalink
    Whether plaintiff, in its reply to defendant's foreclosure counterclaim, may raise his counterclaim with claims caused by defendant's foreclosure counterclaim ?

    kind regards my Phone Florida 941-755-1745
  2. Misty's avatar
    Misty
    | Permalink
    Thank you for this article. I am representing myself in a civil case file against and this was very helpful for me to put my defense together.
  3. Yazmin Rivera's avatar
    Yazmin Rivera
    | Permalink
    Hello,
    My name is Yazmin Rivera and I'm really sorry to bother you, but I was wondering if you knew of anyone that could help me investigate exactly what happened to me and my family? My mother Maria Rivera Hernandez used to live in Ohio. She moved back to Illinois and is living in a trailer home. I was hoping to sell my paintings to get her out of the trailer home, but I feel like I'm being held hostage by the City of Chicago and I haven't heard from any of my family members in over a year. Do you know of anyone that could help me? I just want to find out if my mother is safe.

    I wrote this letter to the Sheriff hoping someone would help me file a police report:

    I'm sorry to bother you, but I'm tired of going to the Berwyn police station and being turned away.
    Today I received a letter from the Department of the Treasury Internal Revenue Service Andover, MA 01810. Employee ID 08-01800
    Wage and Investment Division. They claim they are returning my Federal tax payment for the following reasons. I never sent them a check I sent them a cd regarding proof of identity theft. It was from a woman named Maryann Luther Campus Support.

    I called Lisa Madigan's Office and a woman named Jackie answered and told me to make a police report because I was involved in a scam. I was not sure if she was implying that I was a part of this scam, but this is false. I was taken advantage of but I was not part of a scam. I believe I was a victim of identity theft and like she said my identity was compromised. She said I needed to file a report in case someone bought a boat or house under my name and I was like omg this is absurd. I'm sure they are aware of what's going on.

    I used to work for a company named American Campaigns the owner who goes by the name Charlie Ferral and Carlos Ferral forced me to cosign for a motorcycle against my will in 2008 in Riverside. He took out a total rewards out under my name without my consent and I don't even know what's it's for I never go to casinos. He also took me to his personal banker named Elvin Rodriguez to open a business account called Chicago Indesign. He had already had website up and running under that name. I had no idea what he was scheming. He introduced me to Dorothy Brown via conference call and informed her I was their new graphic designer. I had no clue who she was until I started getting sued left and right for credit card debt and her name was stamped on the paperwork. Anyhow, I had overheard Charlie ordering supplies from a company named Grimco under my name and I quit right away because I was furious that I was not informed as to what was going on. I guess he was trying to open up a credit account at Grimco under my business name. Anyhow, after I quit I was sued left and right. I had changed the name of the Tax Id business name from Chicago Indesign to Min Graphic Design, but he still had access to my information because was the one who helped me fill out the Tax Id form online.

    Anyhow, after I left American Campaigns I didn't make anything of it until I was constantly being dragged into court and I felt like it was a conflict of interest.

    He went around burning me to all the print shops so they wouldn't hire me, but I ended up getting raped or forced into having sex by a broker named ALex Rivera and almost raped by a Cuban man named Alex Bernal. I designed a few business cards for Alex but he kept giving me checks that would bounce so I stopped working with him. He tried forcing me to open up a bank account with both our names for his foundation called BuenFruto.org in Guatemala. Of course I just ignored him and didn't make anything of it til he gave me a business card from the foundation and realized his wife's name was Maria Azurea. I just thought wow maybe it was just a coincidence because my mother's name is Maria. It's a very common name. This other broker named Marcos Castellanos had introduced me to Alex Bernal and said he need a graphic designer so I went to interview with him and I got the job, but then he invited me out to dinner and he was drunk and tried forcing himself on me and I had my ex call the police because it was near Skokie. He ended up calling me a trick and I was confused as to what was going on. I think none of this would have happened if Charlie wouldn't have gone around burning me to all the print shops. I recall meeting with Marcos Castellanos another broker at a subway because he needed a postcard designed and he told me his son had been kidnapped in Guatemala, but I thought he was making it up or something. I didn't know why he was telling me this.

    You have to understand I was born here in the US, but I had barely started dealing with spanish Speaking clients that needed business cards. Or maybe I was slow or naive to catch on to what these guys were doing.

    I'm just going be flat out and honest Charlie Feral, ALex Rivera and Julio Kestler all tried forcing me to marry them and I have no idea why. They didn't even know me and I didn't even know them, but they kept insisting.

    Later my uncle said if you only knew you were worth $100,000, but my stepfather thinks my family might have taken a life insurance policy on me or something.

    It's a really long story, but I have been getting a lot of death threats and have been followed by thugs everywhere I go.

    I actually thought these AFrican AMerican people worked for the City of Chicago or were connected to Charlie.

    Both Charlie and Julio had guns which at first made me laugh because you always see those things in the movies, but then I started freaking out thinking all crazy thoughts.

    Julio Kestler a print shop owner once told me he knew people who forged documents and stole inheritances then I remembered that guy Alex Rivera. I thought he was informing me of what people were capable of. For some reason Julio didn't strike me as that type of person, but then I started freaking out because my mother was going to these African American and Cuban psychics who knew Charlie and Julio.

    I thought I was being forced into a marriage or perhaps they were holding my family hostage or something because they knew everything about my family.

    Then my grandmother passed away the same day Jimmy Lomas a 3 year old toddler was hit by a car and that was really traumatic because that's when I started fearing for my life. He was run over by some guy named Erick Ochoa and I have no idea if he was connected to Juan Ochoa, but I looked him up online and I guess Charlie Ferral ran his campaign for Cicero. I remember going to the Berwyn post office once and that guy Juan approaching me for a signature for Cicero. I told him no I didn't want any involvement in political affairs.

    Maybe it was just a coincidence but ever since then I've been afraid to leave my house because I have no idea what these people are capable of doing.

    I remembered when my cousin Jackie DIaz was getting married I was shopping for a dress at the North Riverside Mall and these thugs came into the store. The African AMerican woman brushed against my shoulder and told me, "If I were you I'd assassinate myself." Again, I have no clue what the hell is going on.

    I actually thought Charlie was sending these thugs after me in order for me to stop printing at Julio's. The few times I went out with Kestler I always noticed these thugs around us. I thought I was going insane. I wasn't sure if he was aware of these guys or if it was just me.

    Also, when I started working for Office Depot I was dragged into court and when I went to cash the check the young lady at the currency exchange informed me that someone by the name of Yazmin Rivera Maldonado was cashing checks under my name.

    I tried going to the police station, but they told me to get a credit report.

    Then when I recently received a letter that my case was being transfered to the Maywood office I was so upset I started burning all my school project and destroying some of my paintings. When I found the laptop bag Charlie had given me I realized the name printed on the Logo of the bag was Roberto Maldonado. Then it hit me that was the same last name of the girl on the id at the Berwyn currency exchange. I also noticed there is a Yazmin Rivera working at the City of Chicago listed on their website, but it's not me. It's pure Fraud.

    I also received a box of checks and a stamp from US Bank which I have never ordered, but they look like the types of checks that Charlie used to use in his office.

    It's just really weird because like I said I never ordered these checks.

    I honestly, feel like this is a real injustice and they pretty much took away my freedom and liberty and persecuted me like a criminal when they are the criminals. I feel like I was taken advantage of they are older and I'm sure they've done this to people before. If it wasn't for my stepfather I would be homeless right now. Not to mention I have to put with his domestic violence let alone these thugs following me around and threatening to kill me.

    I have no idea if the city is trying to set me up or entrap me but I feel like a hostage. I'm not a drug addict or a drug dealer why must I be defamed and pay for the crimes of other people?
    I always felt like I was being set up because you only see these things in the movies and I thought why me?

    They wouldn't even let me work they kept dragging me into court.

    I don't know what's going on. All I know is I'm afraid to leave my home. I feel forced to go to the Dollar Store because if I don't clean my stepfather lashes out at me.

    I don't understand what these people want from me.
    They took away my freedom and now they want to take away my paintings.

    Some of these paintings are from high school and college.

    I gave my Mustang to Fernando Pena because he had given me $900 and I didn't feel right taking the money. I would stay at his home to get away from my home, but Fernando also forced me to have sex with him. I used that money pay Kestler for the posters. I think I still owe him $400. I'm not too sure exactly. I used some of that money to buy water color paints and paper.

    I barely have any clothes and shoes I sold everything I had family jewelry, camera scanner, printer. I sacrificed all material possessions in order to pay for my paint brushes and canvases.

    I don't have any money why won't these people just leave me alone. They ruined my life and my career and I've developed agoraphobia because of all these events. I'm scared of being shot as soon as I leave my house.

    I'm scarred and traumatized for life because of this and I'll never be the same person I used to be.

    If I do take action against him I know the threats are going to get worse especially since he's politically connected.

    I just want to be left alone by these people and not feel like a hostage. I have nothing left except my paintings please don't let these people take away my paintings from me. This is really an injustice. They took away my right to work then they threatened to take away my computer books and tools of trade. They are virtually holding me prisoner in my own home since 2008.

    Any advice would be greatly appreciated.

    Thank you.

    Sincerely,

    Yazmin Rivera

    1445 S. Scoville
    Berwyn, IL. 60402
  4. metallzäune streichen's avatar
    metallzäune streichen
    | Permalink
    Good information. Luckmy me I came across your blog by accident
    (stumbleupon). I've saved it for later!

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