Let's review the worst dumb telemarketing counterclaim I've ever seen
- Peter Schneider
- Jan 17
- 10 min read
Updated: Feb 14
The five folks reading this blog know I'm following the saga of Nathan Barton's telemarketing lawsuits against Joe Delfgauw and friends. And how to beat frivolous counterclaims. Today is our lucky day because we get to do both. For those who don't know, the underlying case is this one. Barton v. Delfgauw, 3:21-cv-05610-DGE, (W.D. Wash. Nov. 1, 2024).
There was a new filing in the case today titled Motion to Dismiss State Court Counterclaims, so like a moth to the flame I had to go take a look and instantly regret the ensuing crap fest. Here is the filing, and what I want to direct everyone's attention to is the last document in the filing, an answer and counterclaim to a new Barton lawsuit against Delfgauw (addressing alleged calls Delfgauw's companies were placing 10 months after getting sued the first time, talk about a lack of telemarketing talent) in all of it's 7 page goodness.
Then let's go page by page and learn why representing yourself should give you pause when you shopped your lawsuit around to every lawyer in town, they all said no, and you file it yourself. Problem 1 - This is an answer and countersuit to a lawsuit where Xanadu Marketing Inc. isn't a party. Problem 2, it demands the plaintiff file the lawsuit "with 14 days" but the lawsuit already has a case number indicating it was filed. Last, Joe Delfgauw is trying to file a countersuit for two businesses while being a pro se. That doesn't work.
Page 2 foreshadows problems to come - by its own admission this counterclaim has the exact same parties and the same causes of action in earlier lawsuit.
The third page seems to confirm Joseph Delfgauw is acting as his own attorney.
Now to the good stuff! The counterclaim. Up top we see Starter Home Investing mentioned, but only Xanadu Marketing in the PARTIES section. What happened to Starter Home? Dumped at the alter? Doesn't want in on the riches this counterclaim will bring?
But that isn't the big issue. The big issues, where have we seen the highlighted text before? Oh yes, back in that federal lawsuit Joe Delfgauw admitted to in his very own answer! These were exactly the issues Joe Delfgauw litigated and lost in the federal lawsuit.
Page five has more of the same but worse. These were the same claims the federal court dismissed, and this slimy telemarketer wants to relitigate his loss in a new court. Who is Xanadu Call Center? How do you sue someone for fraud and then say maybe they did it, or someone else did it. Yes, one person plus everyone else on the planet equals anyone could have done it.
The federal court dismissed the Fraud by Nondisclosure claim in the federal lawsuit because it isn't an applicable cause of action in a situation like this, so Joe Delfgauw took a known frivolous claim and added it to a second res judicata barred counterclaim.
Joe Delfgauw won't be needing attorney fees because this dog of a lawsuit is going to be taken behind the chemical shed and put down (unless the counter-defendant wants to have a little fun first), and if Delfgauw is lucky, without getting sanctioned.
If you are not used to lawsuits, getting sued won't seem so funny and this vexatious telemarketer litigant is so untalented this lawsuit has a half life of a box of donuts at the police station. Someone harassing you with a bogus counterclaim might require a little more work to put away.
If you have read my post about defending against bogus counterclaims like this one, you might wonder what can be done in a situation like this. An anti-SLAPP motion won't work on fraud claims in Washington State, but it might work in other states. While I don't find rule 11 motions useful very often, in this situation that motion is the best tool for the job.
This would give Joseph Delfgauw 21 days to dismiss his counterclaim and slink away without sanctions.
Judges hate pro-se's for a reason. More often than not, their lack of knowledge is seen as wasting a court's time, and Joe Delfgauw might be starting to veer into sovereign citizen territory. Someone purporting to be Delfgauw's agent emailed yesterday:
Mr. Barton, I am part of Mr. Delfgauw’s Legal Team and I will be your point of contact going forward. He received an email from you today, the other emails were recently found in spam. - Please use this email going forward legal@apello.net. - Which email would you be using going forward? - You have sent us emails from multiple emails and they get lost in spam. We would like you to please follow the letter of the law, Mr. Delfgauw would need to be personally served on all documentation. We will not accept anything via email. We only have one other case going on right now, which is the state case beyond the current case, in which we are countersuing you on. If you're going to withdraw that and go through the federal courts, Mr. Delfgauw will need to be re-served. Next issue, Will you be defending yourself in our cases against you? We have four cases that will be filed. 3 of them you can defend yourself, 2 are in Washington, one in Florida. The fourth is a class action suit from your previous TCPA cases that we are collaborating with. -- Sincerely, The Paralegal for Apello Family of Companies O-745 Lake Michigan Drive NW Grand Rapids, Michigan 49534
"Paper terrorism" is a euphemism referring to sovereign citizen use of false liens, frivolous lawsuits, bogus letters of credit, and other legal or pseudo-legal documents lacking sound factual basis as a method of harassment against an opponent on a scale rivaling conventional armed terrorism.
This email unmasks the true nature of many telemarketers. If you take them to court and hold them accountable for unwanted phone calls disruptive to your life, their new go-to tactic is to file a counterclaim. But don't take that from me, this comes from their very own Czar.
In Jackson v. Direct Building Suppliers, 2024 WL 1721144 (M.D. Pa. April 22, 2024) a court just upheld a lead buyer’s ability to sue a litigator for fraudulently submitting a lead form and I can sincerely think of no reason why such counterclaims won’t be brought in every “fake lead” case from now on.
And when the counterclaim goes against them in one court, these telemarketers intend to refile them and new harassing lawsuits in multiple states. All so they can protect their empire of illegal calls. But if this was a working strategy, sovereign citizens would be running the country and their not.
If you get a dumb telemarketer like this one who wants to use a pretend lawyer as a go between, I personally wouldn't communicate with them. This unnamed person wants to take the role of an attorney, but without the rules and protections dealing with an opposing attorney provides. This person might truely be a random person just messing around, or Joe Delfgauw might want to use this unnamed person to make decisions or speaks for Delfgauw in a way Delfgauw can disavow later if he wants to.
Good morning, I am part of his legal team, but I am not an attorney and can not represent him. I am the company’s paralegal and am assisting the attorney in the case and the future cases we are preparing to file against you that will come one at a time. We are aware you have asked for discovery however most of what was sent has the Federal case number on them and it just looks like a duplicate of the federal case. You mentioned that you will be filing in federal court, but we have not been served, so we are just working off of the state court filings. Is this discovery pertaining to the state case? We have seen how you confused Ms. Gibson in the Federal case and would like things done by the book with full legal compliance. We will not waive service and would like everything served personally. Would you like me to send over the same discovery answers as the Federal case since they are the same questions? Is there anything else I can help you with regarding the cases? Sincerely, The Paralegal for Apello Family of Companies O-745 Lake Michigan Drive NW Grand Rapids, Michigan 49534
I would send this unnamed person claiming to sort of represent Joseph Delfgauw and corporations a message telling them you won't communicate with them, and why.
I am glad that we both want to do things by the book, which is why until an attorney appears in the case and the attorney identifies you as his agent, or Mr. Delfgauw himself unmistakably communicates that you are his agent for all things related to this lawsuit and he agrees to be bound by your decisions, I won't communicate with you further. And Mr. Delfgauw's unmistakably communication has to be to the Clark County Superior Court judge in this case so that your relationship to Mr. Delfgauw and your power to bind Mr. Delfgauw with your actions are on record with the judge. Nathen
And then I'd stick with not communicating with the person further unless a real attorney puts in a notice of appearance and then claims the unnamed "paralegal" as his own. Apparently anyone in Michigan can be a 'paralegal'
The second surprising fact about paralegals . . . is that anyone can become a paralegal straight out of high school—high school diploma optional. Michigan Bar.
Update. Joe Delfgauw is the poster boy for a man-child telemarketer who lost in court and intends to use the legal process to harass the TCPA plaintiff to punish him for holding the telemarketer accountable. He must fancy himself to be a Bond villain, laying out his master plan to the protagonist and Joseph Delfgauw is why you should read my defense from the dark arts (counter-claims) post. Apparently Mr. Delfgauw believes the legal system is there for his petty revenge efforts.
“By the Boat means that you follow all the laws. If I tell you who to deal with, that’s what you deal with. That’s by the book. While we have a moment, I want to thank you for rejecting the settlement, Donna’s insurance company was willing to pay the money Because of her mess up. But you were rejecting it is exactly what I wanted so thank you. I also want to thank you for giving me another shot at a countersuit. I will not let Donna or anyone mess this one up. There’s just too much evidence against you so again thank you. I want to apologize in advance all of the counter suits and lawsuits that are coming your way. You might as well get to Manal, you’re gonna get to know for the next 10 years. I’m contacting every single person that you ever scammed and reopening those cases because of the proof I have against you. And I needed to be able to counter sue you to do this. I have contacted his eagerly said they are very happy and both Seth at black list alliance and Andrew Wade from Florida going to be in contact as well The private investigator I hired has almost all of the information that I need, again thank you for this, the first Fort lawsuits will be getting served to you in the next 60 days”.
Maybe he accuses everyone else of fraud because that's what he would do? Or should I say, has done?
Update: you can't make this stuff up. This telemarketer is so dumb he must have someone at his house to tie his shoes in the morning because he sent this "threatening" email to Mr. Barton:
Good afternoon, Mr. Barton, Mr. Delfgauw has asked you to use this email legal@apello.net for all correspondence. He did not receive your email, but his son did, delfgauw@gmail.com is his son’s email address. His son is thinking about pressing charges under the Can Spam Act. Mr. Delfgauw wants to keep things between you and him, but if you want to bring the kids in on it by continuing to email his son, just let us know. You have emailed Bdelfgauw@gmail.com unsolicited, at least five plus times. So, we highly suggest that you stop. Mr. Delfgauw is entertaining having him file because you're not supposed to send unsolicited emails to the wrong person. We have told you the email to use. That's the only email we will respond to. Anything else, if you choose not to use this email address, then we can communicate directly through the court with everything. We've tried to be cordial about this, but you're obviously not following instructions, so we will make a motion with the court, and we will decide what to do in your violation of the Can Spam Act as you are sending spam to someone who did not sign up and we have requested for you to stop. We would like to make you aware we are filing a motion to dismiss. You've already sued Mr. Delfgauw in federal court. You cannot sue twice in a different court just because you choose to. So, if you feel that you need to file a motion to compel, go ahead. Your request for discovery is going to be denied until the court requires them so if you want to file that motion, you can file it now, because we are going to follow the state court's rulings. You have filed the state court case for discovery on the federal docket. Discovery has been closed on that current case, and we have asked Miss Gibson to file a motion for sanctions against you for wasting the court’s time. Kind Regards, Paralegal at Apello Family of Companies O-745 Lake Michigan Drive NW Grand Rapids, Michigan 49534
Lets count the dumb:
The CAN SPAM act applies to commercial emails
The CAN SPAM act does not allow you to levy criminal charges for receiving unwanted emails
The email is largely unintelligible
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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