I am being sued for malicious prosecution. They state in there complaint that I " acted maliciously in bringing her action against Plaintiffs in that (my name) knew that Plaintiffs were having financial difficulties, knew that Plaintiffs real property was foreclosed upon by Plaintiffs lender, and knew that Plaintiffs would have to spend significant amounts of money in legal fees..." I am having financial difficulties and my house was recently foreclosed upon yet they have not dropped there lawsuit. Can I sue them for malicious prosecution?
4 Answers from Attorneys
Although unclear it sounds as though the case against you for malcious prosecution is ongoing. You cannot sue for malicious prosecution unless you have successfully completed litigation. If you have a judgment in your favor then you can analyze and evaluate your rights.
Suing somebody when they are having financial difficulties does not, by itself, constitute malicious prosecution. In order to prove a claim for malicious prosecution, the plaintiff must show:
(1) That the defendant was actively involved in bringing [or continuing] the lawsuit;
(2) That the lawsuit ended in plaintiff's favor;
(3) That no reasonable person in defendant's circumstances would have believed there was a valid claim (based on the facts);
(4) That defendant acted primarily for a purpose other than succeeding on the merits of the claim;
(5) That plaintiff was harmed; and
(6) That defendant's conduct was a substantial factor in causing plaintiff's harm.
Take particular note of item (2). To prevail in a claim for malicious prosecution, you would need to prevail in the current claim against you.
Your not allowed to bring a separate claim or even a cross-complaint for malicious prosecution until the lawsuit against you is resolved in your favor.
At this point, you need to find an attorney who could bring what is known as a SLAPP motion. Many malicious prosecution cases are frivolous, and are simply brought to chill the defendant's previously exercised right to petition for redress of grievances. An attorney who is successful in a SLAPP motion can not only have the case dismissed, but also force the plaintiff to pay for your attorney's fees.
Do yourself a favor and find a lawyer who knows this stuff.
Mr. Roach took the words right out of my mouth. But note that, if the other side is broke, even a SLAPP motion won't magically give them the ability to pay your legal fees.
The language you quote does not even suggest that your lawsuit was malicious, or even that the prerequisites for a malicious prosecution claim (the most important of which is a defense victory in the prior case) are present. Of course, there may be other language in the complaint that better justifies the claim against you.