How Do I File a Counterclaim When a Car Buyer Sues Me Due to Repossession of the Automobile?
We;re assuming the plaintiff was sold a car by your husband. Typically, a financed car will need to have the lien released before it may be sold. If the seller didn't have the right to sell the car, it may be possible to for the buyer to sue for breach of contract and obtain restitution.
To sell a financed car with a lien on it, you must arrange for the lender to receive their money and release the lien. This is a routine process for finance companies. The buyer pays the finance company/bank directly. If you owe more than the sale amount, you'll pay the finance company/bank the difference. If the buyer is paying more than you owe, you'll receive the difference. Once you and the finance company/bank representative sign the lien release and it is notarized, the vehicle title is clear, and it may be transferred to the buyer.
A counterclaim can attempt to offset or reduce the amount of a plaintiff's original claim against the defendant; or bring a different claim by a defendant against a plaintiff. For example, a claim may be made that the car loan was paid or less was owed on the car than claimed. A counterclaim may be filed as part of the defendant's answer to the complaint. In certain cases, as described below, a compulsory counterclaim must be made in answering the complaint or it is waived.
Please see the following AL court rule:
Rule 13. Counterclaim and Cross-Claim
(a) Compulsory Counterclaims.
A pleading shall state as a counterclaim any claim which at
the time of serving the pleading the pleader has against
any opposing party, if it arises out of the transaction or
occurrence that is the subject matter of the opposing
party's claim and does not require for its adjudication the
presence of third parties of whom the court cannot acquire
jurisdiction. But the pleader need not state the claim if:
(1) at the time the action was commenced the claim was the
subject of another pending action; or (2) the opposing
party brought suit upon his claim by attachment or other
process by which the court did not acquire jurisdiction to
render a personal judgment on that claim, and the pleader
is not stating any counterclaim under this Rule 13; or (3)
the opposing party's claim is for damage covered by a
liability insurance policy under which the insurer has the
right or the obligation to conduct the defense. In the
event an otherwise compulsory counterclaim is not asserted
in reliance upon any exception stated in paragraph (a),
relitigation of the claim may be barred by the doctrines of
res judicata or collateral estoppel by judgment in the
event certain issues are determined adversely to the party
electing not to assert the claim.
(b) Permissive Counterclaims.
A pleading may state as a counterclaim any claim against an
opposing party not arising out of the transaction or
occurrence that is the subject matter of the opposing
(c) Counterclaim Exceeding Opposing Claim.
A counterclaim may or may not diminish or defeat the
recovery sought by the opposing party. It may claim relief
exceeding in amount or different in kind from that sought
in the pleading of the opposing party. All counterclaims
other than those maturing or acquired after pleading shall
relate back to the time the original plaintiff's claim
(d) Counterclaim Against the State of Alabama.
These rules shall not be construed to enlarge beyond the
limits now fixed by law the right to assert counterclaims
or to claim credits against the State of Alabama or an
officer or agency thereof.
(e) Counterclaim Maturing or Acquired After Pleading.
A claim which either matured or was acquired by the pleader
after serving a pleading may, with the permission of the
court, be presented as a counterclaim by supplemental
(f) Omitted Counterclaim.
When a pleader fails to set up a counterclaim through
oversight, inadvertence, or excusable neglect, or when
justice requires, the pleader may by leave of court set up
the counterclaim by amendment.
(g) Cross-Claim Against Co-party.
A pleading may state as a cross-claim any claim by one
party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the
original action or of a counterclaim therein or relating to
any property that is the subject matter of the original
action. Such cross-claim may include a claim that the party
against whom it is asserted is or may be liable to the
cross-claimant for all or part of a claim asserted in the
action against the cross-claimant.
(h) Joinder of Additional Parties.
Persons other than those made parties to the original
action may be made parties to a counterclaim or cross-claim
in accordance with the provisions of Rules 19 and 20.
(i) Separate Trials; Separate Judgments.
If the court orders separate trials as provided in
Rule 42(b), judgment on a counterclaim or cross-claim may
be rendered in accordance with the terms of Rule 54(b) when
the court has jurisdiction so to do, even if the claims of
the opposing party have been dismissed or otherwise
(j) Appealed Actions.
Where an action is commenced in a court from which an appeal
lies to the circuit court for a trial de novo any
counterclaim made compulsory by subdivision (a) of this
rule shall be stated as an amendment to the pleading within
thirty (30) days after the appeal has been perfected to the
circuit court or within such further time as the court may
allow; and other counterclaims and cross-claims shall be
permitted as in an original action. When a counterclaim or
cross-claim is asserted by a defendant in an appealed case,
the defendant shall not be limited in amount to the
jurisdiction of the lower court but shall be permitted to
claim and recover the full amount of its claim irrespective
of the jurisdiction of the lower court. If the plaintiff
appeals a case to the circuit court from a lower court and
obtains a trial de novo in the circuit court, the plaintiff
shall be limited in the amount of his recovery to the
jurisdictional amount that could have been claimed and
recovered in the lower court, unless the defendant asserts a
counterclaim in excess of the jurisdictional amount of the
lower court. If a defendant appeals to the circuit court from
a judgment rendered by a lower court, the plaintiff in the
circuit court on a trial de novo shall be permitted to claim
and recover the full amount of its claim even though the
amount might exceed the jurisdiction of the lower court. For
purposes of this Rule 13(j), the word "appeal" includes
petition for writ of certiorari.
(dc) District Court Rule.
Rule 13 applies in the district court except that, (1)
Rule 13(a) is modified so as to excuse the pleader from
asserting a compulsory counterclaim when the claim is
beyond the jurisdiction of the district courts and, (2)
Rule 13(j), Appealed Actions, is deleted.