I won small claims cases #2 and #3

Discussion in 'Credit Talk' started by greenvan, Sep 8, 2003.

  1. greenvan

    greenvan Well-Known Member

    Some of you may recall my small claims case in May 2003 (hereafter known as Case #1) where I was suing my former mortgage company for doing an Account Review without having permissible purpose. In that case, the lender failed to appear in court and I was easily awarded a default judgment for $1000 plus court costs and interest. Well, I returned to small claims last week to try two more cases.

    CASE #2: This was essentially a repeat of Case #1 in which I was again suing my former mortgage company for doing another Account Review without having permissible purpose. Once again, the defendant failed to appear. This time, however, I had a different judge who seemed very skeptical of my case. Even though the defendant failed to appear, the judge essentially made me try the entire case in front of her.

    The judge asked me to show her the Fair Credit Reporting Act, and then asked to see my damages. I explained that I had no damages but that FCRA 616 provides for actual damages or $1000 whichever is greater and that I was claiming the $1000 statutory violation. The judge then said that "Account Review" was listed as a permissible purpose under FCRA 604. I then introduced the Gowen FTC Opinion Letter and argued that since a mortgage is a closed-end account there was no reason for the lender to be reviewing my account. The judge said she didn't think I could use an FTC Opinion Letter as evidence, but I just ignored her and kept on arguing Gowen. The judge then asked if I had ever been late on my mortgage payment, to which I replied no because the payment was automatically deducted from my checking account on the first of every month. The judge then asked if any of the closing documents allowed the lender to review my credit report, to which I replied no. The judge then asked to see my Deed of Trust, which I was happy to provide because it contained absolutely no information regarding credit reports!

    Finally, the judge shook her head in disbelief and then awarded me the $1000 default judgment (plus court costs and interest).

    CASE #3: This time I was suing one of the major credit card companies for doing an Account Review on an account that had been closed by the consumer. This defendant also failed to appear in court. I presented the Benner FTC Opinion Letter to support my case. By now the judge had apparently grown accustomed to my arguing the FTC Opinion Letters and she didn't ask too many questions except to verify when the inquiry was made, when the account was closed, and when the statute of limitations would expire. Then she granted me a default judgment of $1000 (plus court costs and interest).

    I'm beginning to enjoy going to small claims court. I have another case coming up in October, and another in November...
     
  2. mcdavis4

    mcdavis4 Well-Known Member

    Wow! That's great!

    Have you collected the money from case# 1 or are they appealing? Do you think you will collect from these cases? I am just wondering, once you win and the appeal process has elapsed how easy is it to actually get your money. (Please don't take this as mean or disrespectful, I am truly interested.)

    Thanks,
    Michelle
     
  3. greenvan

    greenvan Well-Known Member

    Michelle,

    You ask a very good question. As for case #1, they did not appeal. However, I have not tried to collect from them yet simply because I still have a number of similar cases that I'm waiting to file against them and therefore want to stay "low on the radar" until I can get all of these cases filed.

    Likewise for case #3. Since I still have one more case to file against this company, I will not try to collect until that second case has been decided.

    You and I are both truly interested in how easy it is to actually get your money! At this point I have no idea how to proceed to collect, but I am confident that our fellow creditnetters will have some suggestions once I finally get in the actual collection mode.
     
  4. mcdavis4

    mcdavis4 Well-Known Member

    Thanks for the reply. I knew if you did your research a win in court was attainable. The collecting part is where I see the problem being. Hopefully some one here has had that experience.

    Good Luck!
    Michelle
     
  5. GEORGE

    GEORGE Well-Known Member

    "IF" YOU DON'T COLLECT...YOU DIDN'T WIN
     
  6. greenvan

    greenvan Well-Known Member

    Re: Re: I won small claims cases #2 and #3

    George,

    I haven't tried to collect yet for tactical reasons. I can understand how it might be difficult to collect a judgment against an individual because that person may not have the money to pay you or they may decide to move out of town and not leave their forwarding address. However, the national mortgage and credit card corporations do have substantial assets and they don't move out of town. What reason would they have not to pay me other than they simply don't want to? Do you think a judge would accept that as a valid reason for not satisfying the judgment?

    I believe the next step is to send them a "demand letter" but I'll have to get some help on that one.
     
  7. jlynn

    jlynn Well-Known Member

    Re: Re: I won small claims cases #2 and #3

    Hey Greenvan - big congrats! I remember when this first came up! While I was reading your post, I was answering a letter from HHld bank, wanting a copy of my report for my no PP claim.

    I just realized that Household Finance is also doing reviews on me. Guess what??? That's a close ended loan!

    Woohoo off to try for some more $$
     
  8. crowmom

    crowmom Well-Known Member

    >>The judge then asked if I had ever been late on my mortgage payment, to which I replied no because the payment was automatically deducted from my checking account on the first of every month.
    ------------------------
    What the heck difference would that have made? I would have replied "although that's irrelevant, no."

    sheesh.

    Congrats tho! I guess now you'll have to hire a collection agency? ;)
     
  9. greenvan

    greenvan Well-Known Member

    Re: Re: I won small claims cases #2 and #3

    Thanks jlynn! Looks like you just stumbled into a Gowen opportunity... Here is some advice I can pass along based on three consecutive "wins" in small claims:

    1. Send Household Finance a letter notifying them of the inquiry, reference FCRA 616, reference the Greenblatt FTC Opinion Letter, and ask them to either explain their PP or send you $1000 by a certain date. DO NOT reference Gowen anywhere in this letter, and DO NOT tell them that the inquiry was only an Account Review. (If they can't figure it out per their records, then they might pull another inquiry just to investigate...and then you get more $$$.)

    2. Wait a month or so for them to respond. DO NOT discuss anything with them over the phone. They will likely send you a letter asking you to send them a copy of your credit report so they can investigate the inquiry further, but DO NOT send them your credit report and DO NOT respond to their letter in any way.

    3. After you have given them sufficient time to explain their PP and they have failed to do so, then file suit in small claims for $1000.

    4. Be prepared to argue the fine points of Gowen before the judge. This can get a little tricky depending on how well prepared they are, so it might help to back it up with some case law if you can find it (I'm still digging for it myself). Remember that your case is based on an FTC Opinion Letter which does not carry the same weight as the actual regulations, and therefore the outcome is entirely dependent on whether the defendant shows up in court and how well you can convince the judge that they did indeed violate the FCRA.

    Good luck!
     
  10. GEORGE

    GEORGE Well-Known Member

    IRRELEVANT IS RIGHT
     
  11. GEORGE

    GEORGE Well-Known Member

    Would being 30 days late once or twice (OR EVEN 20 TIMES IN 30 YEARS) change the PP???

    NO!!!
     
  12. greenvan

    greenvan Well-Known Member

    Crowmom,

    The judge asked me if I had ever been late...including whether the bank had ever received my mortgage payment during the "grace period" instead of on the actual due date! This tells me that the judge was desperately looking for some reason to justify a decision in favor of the absent defendant, and fortunately I remembered that the bank automatically deducted the mortgage payment from my checking account on the first of each month. This also goes to show that you can still lose your case even if the defendant fails to appear in court, provided the judge can determine that your case does not have merit.

    Actually, the judge was completely justified in asking me if I had ever been late with my mortgage payment. Why? This is one of the fine points of the Gowen letter in that the FTC Staff Attorney surmised that closed-end creditors DO have a permissible purpose to check your credit report once you DEFAULT on the loan.

    And speaking of the judge...here is something else that I found very strange. After handing down her decisions, the judge informed me that she was keeping my Deed of Trust and my original credit reports in the court file and that I could get copies of these documents from the clerk! The judge stole my originals! I can't imagine WHY she kept my documents unless she wants to review this case with the entire small claims judge pool to reach a consensus on how to handle future FCRA cases in the local court. Anyway, I'm not happy that the local court now has my personal and private credit reports floating around in their files, and I'm considering how I might get them back.
     
  13. GEORGE

    GEORGE Well-Known Member

    Re: Re: I won small claims cases #2 and #3


    And speaking of the judge...here is something else that I found very strange. After handing down her decisions, the judge informed me that she was keeping my Deed of Trust and my original credit reports in the court file and that I could get copies of these documents from the clerk! The judge stole my originals! I can't imagine WHY she kept my documents unless she wants to review this case with the entire small claims judge pool to reach a consensus on how to handle future FCRA cases in the local court. Anyway, I'm not happy that the local court now has my personal and private credit reports floating around in their files, and I'm considering how I might get them back.


    I WOULD CALL THE CLERK OF THE COURT AND ASK WHEN YOU CAN RETRIEVE YOUR PERSONAL PROPERTY...(OTHER-WISE THAT IS THEFT)...EVEN IF IT IS A COURT...THEY CAN NOT COMMIT THEFT!!!
     
  14. crowmom

    crowmom Well-Known Member

    >>Actually, the judge was completely justified in asking me if I had ever been late with my mortgage payment. Why? This is one of the fine points of the Gowen letter in that the FTC Staff Attorney surmised that closed-end creditors DO have a permissible purpose to check your credit report once you DEFAULT on the loan.

    >>The judge asked me if I had ever been late...including whether the bank had ever received my mortgage payment during the "grace period" instead of on the actual due date! This tells me that the judge was desperately looking for some reason to justify a decision in favor of the absent defendant,
    -----------------------------------

    Desperate is right! She knows that paying during the grace period is not defaulting! Maybe she's boinking the mortgage co CEO. lol.

    This brought to mind another question....
    If you're 1 day late on a mortgage payment, (after the grace period) how does that reflect on your credit report? It can't say '30 days late' if its only 1 day late, right? So even if you had paid after the grace period, but before the 30 day point, would it still be noted on the CR somehow?
     
  15. GEORGE

    GEORGE Well-Known Member

    The mortgage payment is due on the 1st of the month...IT IS NOT LATE TILL DAY 16...SO ANY PAYMENT ON DAYS 2-15 ARE STILL NOT LATE!!!

    I always send my payments BEFORE the due date but sometimes that just take their marry old time posting the payment!!!
     
  16. Nestea

    Nestea Well-Known Member

    Re: Re: I won small claims cases #2 and #3

    No it would not be noted on the CR if you are less the 30 days late. Although a Creditor on a closed end loan could try to claim that they therefore had PP to pull a CR..
     
  17. boywonder

    boywonder Well-Known Member

    Re: I won small claims cases #2 and

    congrats, greenvan! I would wait out the 30 days after judgement so that they will have an extremely difficult time if they try to appeal. After 30 days, start collection procedures.
     
  18. lbrown59

    lbrown59 Well-Known Member

    O Boy WAY TO GO>
     

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