First Post: Collection Agency Question

You have the violation now all you have to do is enforce the law by filing a case against them. Of course you will have to be able to document their violations. You can file in any court of competent jurisdiction but personally I would recommend a federal case against them. You will get much better results out of a federal case than you will from a local court case.

 

Turning it back to the original creditor don't alleviate their problem. For example, if I rob a bank and when caught can I get out of it by returning all the money? Don't think so. (LOL)

In the bank robbery example what happens is pretty much up to the prosecutor. Same here except you are the prosecutor. So it depends on what you want to do. You have two choices. File a case against them or let them get away with it. The choice is yours to make.

 

I'm in the same situation where a CA is calling me even though I sent a proper C&D letter. I could sue them now for FDCPA violations but I'm afraid that would be equivalent to sticking my head out of the fox hole.

If they are only calling me and not suing me yet should I wait to sue them on FDCPA violations?

 

That is the violation. Study FDCPA and learn what they have to do upon receipt of a cease & desist letter. There is a whole section devoted to that topic.

 

A collection agency is allowed to contact debtor one final time to advise them they are pursuing a specific action after receiving a cease and desist letter. Filing in federal court is expensive and a lot more formal than district or circuit court.

 

That is all very true. Filing in federal court is more expensive and a lot more formal than district court but a whole lot of experience says that you get what you pay for. File in local court and you are likely to get the case dismissed. File in federal and you will get a good hearing so I have to assume the old saying that you get what you pay for is about right. Anyway, what difference does it make when you can get your filing fees reimbursed if you win.

 

Not necessarily. Most state trial level courts; i.e., Circuit or District, are just as good and don't move at rocket speed as many Federal District Court's do. In addition, it is a little less formal in state court which can lead to less confusion for a pro se litigant.

 

I'll have to agree that local courts are much less formal and therefore less confusing to pro se litigants who move forward without any help from anyone else.

As far as delays or speed is concerned, I've seen many FDCPA and FCRA cases take a year or more to reach a final determination. So also based on personal experience, I haven't seen many local court cases take that long unless it is in some other area such as a mortgage foreclosure case and others which can drag on for many years. Debt collection cases usually move forward much more quickly than that.

Can't say that I have ever seen more than maybe one or two FDCPA or FCRA cases filed in our local court system but I'm sure there are some and maybe many that I am not aware of.

I've noticed that local judges just don't seem to want to deal with such cases and dispose of them as quickly as possible. Usually with a swift dismissal on whatever grounds they can find to get rid of them. Local court judges in Oklahoma just don't want to deal with such cases and I haven't seen any greater liking for them in any other jurisdiction either.

Maybe your state is different for whatever reason.

 

No, where "I" practice law (TN) isn't much different. However, I have a law firm (completely separate and distinct from Apex Credit Services, LLC, of which I am still managing member (not the whole corporation as some portray it)), am in court almost every day and albeit unfair with respect to self-represented litigants, simply being a lawyer stops the B.S. Hate to say it but, the legal community does not care much for pro se litigants insofar as "generally" they have no clue as to what they're doing (unfortunately, I can say the same about many attorney's) substantively, procedurally, and even if they do, they just can't put on a trial. I'm not saying they bother me rather, I'm just expressing the perception of lawyers and judges.

With that said, I still advise pro se litigants to file in state trial level courts. Federal court procedures; i.e., 26 disclosures, scheduling orders, etc., is simply too much to digest for non-lawyers UNLESS you have alot of time on your hands. This has been compounded since the Twombly ruling inasmuch as District Court judge will simply grant a MTD unless the Complaint is perfect.

 

That is unfortunately absolutely true. To make matters even worse, far too many of them try to use fringe lunatic arguments such as trying to claim that the banks can't loan credit, can't loan their own money, and yada, yada, yada ad infinitum ad nauseum. One 'researcher' I know quite well argues that since large banks are not registered with their local Secretary of State they have no standing to sue. Of course that is ludicrous because large banks cannot be incorporated. That is specifically spelled out in Title 12. They are associations and therefore allowed to carry the N.A. designation. Only Nationally Associated banks and credit card banks can use that designation.

Another one that I just got informed about yesterday is that in mortgage foreclosure cases use of a copy of the note instead of the original note itself constitutes counterfeiting and is a felony offense. Now there is a wild theory for you. The idea of Notary Presentment and A4V (Acceptance for Value) is another. The list of such theories would fill a book and of course both judges and attorneys and the IRS have to deal with all the noise and tripe. No wonder they make short shrift of so many pro se litigants.

I also get a bang out of those who proclaim that they are only before the court as a special appearance and therefore the court has no jurisdiction or power over them. Then there are those who use SUI JURIS instead of Pro Se in their pleadings.

I get a bang out of attorneys who pray the court to do something for them. Since when did a court of law become a church? Maybe they do that in their capacity as religious nuts. Problem is that the Lord wants religious fruit, not religious nuts. (LOL)

You do make your valid points but my thinking is that if they think they must file in local courts rather than federal then maybe they would be better off not filing in the first place.

 

Bill,

I'm impressed with your knowledge. You know far more about the "law" than alot of the so-called attorney's I deal with on a daily basis.

I want you to visit a website. It is for the "Nashville School of Law." Look at their requirements for a J.D. and you'll understand what I deal with every day.

An example, Best Buy once upon a time tried to "Twombly" a client of mine in a Tennessee Human Rights Act case. The idiot cited to Twombly from the Circuit which it came out of. Now, I and the Judge (Rutherford County, TN) both knew that this case had been used over 10k times for reasoning a 12(b)(6), rarely was effective but, he didn't cite to it as coming from the U.S. Supreme Court. I just said it wasn't binding, the Judge Corlew winked at me, and we went down the road. I handed him my 33, 34 and 36 requests as well as Notices of Depo's in the elevator, lol.

Point is, a hell of a lot of lawyers don't know what they're doing either and I am a lawyer (although I like to "think" I know what I'm doing).

 

Thanks for the compliment, but there is a problem with knowing more than a lot of attorneys know. People in the group sometimes go to some well publicized NACA attorney to get consultation on some issue or other. (I'm sure you know about NACA and their excellent library of books on federal and consumer law. Their books are expensive but almost unbelievably comprehensive in their coverage of the various subjects. ) Every time one of us goes to an attorney (NACA or not) we get the same result. They really can't help because they say we know as much or more than they do. (LOL). What is also a bit surprising is that as Dr. Graves of Jurisdictionary often says, this stuff isn't rocket science. It really isn't hard to understand once you get past all the Latin and other unfamiliar terms. It really don't take all that much to get to a point where you gain enough insight to instinctively know what is right and what isn't.

I suppose an example of that is the fact that most judges will not dismiss a case because some lawyer did something really, really wrong and got away with it when the Pro Se got nailed for making the same mistake. Let's say (for example) that a Pro Se files a motion to dismiss because the Plaintiff's attorney didn't show up for court on the appointed day. The judge denies the motion to dismiss and the case moves forward. At a later time the Pro Se was 30 minutes late to a hearing and the lawyer moves for judgment and it is immediately granted. The Pro Se is understandably outraged beyond belief because he don't understand why that kind of treatment happens. It just isn't fair s/he bitterly complains. Judges do that because they are being bribed or because the lawyer is their golfing buddy or whatever else they can think up as being the only plausible answer to why they got treated the way they did. Of course, golf or old drinking buddies has nothing to do with how the judge ruled. The reason it happens is because the courts feel that plaintiffs cases should not be jeopardized and thrown out simply because they hired some dumbo for their attorney who couldn't follow the rules.

Pro Se litigants also make the huge mistake of taking things personally. They become so personally engrossed in their problems and their cases that they can't look at their problems from the proper perspective whatever that might be at any given time. It seems to me that the only way to get a handle on such situations is to learn to step back and look at it from a totally impersonal viewpoint and that is tough to do when you are in the middle of the swamp and up to your A__ in alligators. In order to beat the alligators even though one of them has you firmly in it's jaws is to remember that alligators have a vulnerability which is that they have a trap door in their throats that keeps their lungs from filling up with water and drowning them. Jam your arm or leg down it's throat and open up that little trap door and the alligator instantly starts drowning and then he has a lot more to worry about than eating you.

Same with lawyers and judges. Give them something to worry about other than eating your lunch for you and you suddenly become the alligator they have to worry about.

As I have mentioned a couple of times already I have a situation that will come to a lawsuit sooner or later. I already have a couple of violations against the attorney and that will turn into many more violations before they are done with the case and get a judgment against me which I am confident they will do. I have absolutely no defense whatever. When I get them to federal court they will start hollering that they have a judgment against me (just for starters) and when we get to Rule 26(f) they will claim that the plaintiff still has to be paid even though I am likely to win the federal case. They will want to confer with the local court plaintiff to see what they have to say and what they want to do. I've seen that happen several times. The problem with that is that even though the lawyer has to vacate the local court judgment and quit trying to collect from me that don't stop the local court plaintiff from finding a competent attorney and coming after me again and I don't mind telling the lawyer that the plaintiff just needs to go find a competent attorney. This case isn't about whether I owe the plaintiff or not. Its only about what the incompetent attorney did to violate my civil rights.