Going To Small Claims...can I win with this?

Discussion in 'Credit Talk' started by MisterB, Jul 9, 2008.

  1. MisterB

    MisterB Active Member

    Hey guys:

    You all have always been a big help, giving a wealth of wisdom to us not so smart. I am going to small claims next week as the plaintiff. CA/JDB( don't know which) has posted on my CR an old Sprint bill. Here is what I have as my proof of violation by Harvard Collections.

    1. I sent them a letter telling them this account was disputed when another CA had the account and they could not VOD.

    2. They have continued to report to CRA even though I have disputed the debt.( they never answered my letter)

    3. They never validated the debt( never responded to my letter).

    4. The debt is SOL, last bill I received from Sprint(OC) was in 2003(switched to cable).

    5. Harvard Collections is not bonded under any name in Florida to collect debts.

    I plan to take the letters sent to both companies, the previous CA and to Harvard, as evidence of what I sent them. Now, I am not sure if this is enough to win the case, but I hope it is. If there is something else I need to take with me, please let me know.
     
  2. Dumb Bob

    Dumb Bob Well-Known Member

    So you are suing them? And you are doing so in a venue where they can counterclaim for the underlying alleged debt?


    I think you are being kind of mysterious about what the violations are supposed to be. If you are making some complicated argument under federal law to a state court, it might be best to have presented the court with some hints about what it is prior to the hearing by submitting something in writing. Small claims, depending on the court, can be crowded and fast and not really give much time for fineries.
     
  3. Hedwig

    Hedwig Well-Known Member

    The problem with small claims is that many of the judges don't understand consumer law, especially federal laws. Don't expect this to be a slam dunk.
     
  4. Dumb Bob

    Dumb Bob Well-Known Member

    The judge might have 50 cases to go through in a morning. People will be everywhere, babies screaming, folks joking and poking each other, more interruptions. The case might only get five minutes. What's the argument? What's the law? I think that the person doing this should be able to explain that here if they are going to have a shot at doing it in a harried court.
     
  5. apexcrsrv

    apexcrsrv Well-Known Member

    I agree with Bob and even I am unsure of what the claim is. Filing it in a state trial level court will avail you to the underlying debt on a counter. Usually doesn't happen but, it would steer me to federal.
     
  6. MisterB

    MisterB Active Member

    I am not sure I am following you Bob.. Is everyone saying the points I said earlier(ie: not validating the debt, continuing to report to CRA while debt is being disputed, SOL) is not good enough to win the case.. I am VERY GREEN at this(1st one). Should I be stating the law statues?? I am confused as to what everyone is asking ..When you say counterclaim, are yo saying they can counterclaim even though they are NOT registered with the state of FL to collect debts??? please help
     
  7. MisterB

    MisterB Active Member

    Hedwig:

    It is my hope that they do not show up. The CA is in Chicago and the claim I filed here in FL.
     
  8. jjgross

    jjgross Well-Known Member

    What might happen if the court is busy he might not be understanding of consumer law's small claim;s is very quick justice he might ask is this your bill the answer is yes or no nothing in between if it's yes he say pony up dough thats why it's better in fed.court,your sue them they have a right to defend there self regardless if they bonded in your state that's why small claim's is hit or miss.i'm not trying to be neg,i have one two case's in small claim's but not with credit problem's
     
  9. Dumb Bob

    Dumb Bob Well-Known Member

    How were they served? What are your court's rules for service in a small claims action?
     
  10. Dumb Bob

    Dumb Bob Well-Known Member

    I get that a lot.

    I think they aren't required to do that unless they continue to attempt to collect. So you'd at minimum want to know where the law says they can't do that and have proof that they continued to try to collect. The law would likely be the statute and clarifying case law.

    I'm not sure what the current law is exactly. If you pretend I'm the judge, I'd be wondering what to do. If I'm wondering, I'm not going to be going out on a limb to rule for a plaintiff. Tell me why I have to rule for you.

    I think it's a FDCPA violation to file a collection lawsuit against someone after the SOL is up. But in this case, they didn't file, did they? It's not against the rules to continue to try to collect by calling or writing you because the SOL doesn't extinguish the obligation (except in two states), it simply takes away the legal remedy.

    Lawyers often quote the codified law, quote case law, quote secondary sources like the Restatments. Congratulations, you aren't a real lawyer, but you get to play one in court!

    Is it a requirement that they be so registered? What is your state law? There are MILLIONS of laws. No judge knows them all. In the lower state courts, a judge probably rarely sees any consumer who is fighting back, especially by using a mix of state and federal law. So he might not be up on exactly what the latest rulings are in federal circuit courts. That's why you have to be.

    The US has an adversarial system. You are one side, the other side is another side, there can be more sides, like a polygon. Each of you is supposed to present your case and explain it properly to the judge so he can decide. This includes providing the judge with copies of the laws and cases you cite if that is required.

    You can imagine what doing this would do to a small claims court with 50 people that need to get through that morning. Thankfully many people just default or otherwise avoid taking up the court's time, this is especially true when they aren't actually served.

    So I would recommend going to the small claims court and watching what happens to get an idea what you are up against. I would then watch a higher level trial court where both sides have lawyers because then you'll learn how you should be acting and what you should be saying. I would watch the higher level court as many times as possible.

    If you manage to win, they can still appeal.
     

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