CA being slick. Lawsuit help needed

That is continued collection of an account.

 

I don't have direct experience suing a CA. However, this sure sounds like the classic "hot potato" negotiation technique. You toss it to them, they toss it right back.

File suit and let them know you mean business.

 

Here are some tips from a pamphlet I wrote:

Youâ??ve got to have a solid case
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In order to win in court:

1. You should know the laws you are quoting, well enough to explain them to the judge. The judge may be unfamiliar with the FCRA and FDCPA. Itâ??s up to you to educate him.

2. Have copies of these laws to take to court
Take any supporting information you have with you

3. You must make a good faith effort to resolve the issue first before taking someone to court
This is vital. As stated above, without making an attempt to settle things out of court, your case is going to be seriously hampered. The judge will most likely be highly annoyed with you for wasting court time when you might have just talked to the creditor and settle the matter over the phone.

Try to settle out of court - ultimate proof of goodwill attempts. So how do you offer to settle?
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1. Along with the notice that you have actually filed the lawsuit, you can send them a settlement letter, asking them to remove a listing or whatever repair you are seeking plus the money amount you are seeking in the suit. Even paying you, it will save them lawyerâ??s and court fees, so itâ??s possible you will get cash out of them.

2. It would be nice to collect money from the defendant, but if you get them to remove or change a listing, thatâ??s worth something, too. Donâ??t be greedy. If they offer to update or remove a listing to your satisfaction, I would seriously consider taking it.

3. Make sure you get it all in writing. You can request a hard copy of the agreement with your original signature on it, and hope you get it. Itâ??s possible that you will. However, a faxed copy of the agreement with their signature may be all that you are going to get. If they wonâ??t give you the settlement in writing, then itâ??s time to go back to court.

4. If they settle, don't forget to dismiss the case with the court! You must inform the court so the hearing can be canceled and your case dismissed.

5. If they donâ??t pay before the court date
If the terms of your agreement, including money, are not fulfilled before the court date, proceed with the case in court.

NOTE: If you drop the suit, your filing fee and service costs are not returned.

How do you file a small claim?
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First of all, most courts want to see that you attempted to collect this money before going to court (that you have taken all reasonable measures to collect before getting the courts involved.) See above.

Usually, by choosing a Small Claims Court, you waive all right to a jury trial. Furthermore, it is only in very specific instances that you have the right to appeal to a higher court if the Clerk does not find in your favor. Defendants, however, always have the right to appeal.

You need to go down to your county courthouse and ask the clerk for the procedure in your county. Fill out the documents they give you. You may attach a copy of the Legal Form in Appendix F, which may help to more clearly outline your complaint. This is a good thing to do, especially if you are nervous about presenting your case or are afraid you might forget important facts. If county will not let you file this form (doubtful), then you can take it with you as your own private notes. You must pay all the filing fees before your paperwork will be processed.

In some counties, all you will have to do is sign the form in the presence of the clerk; in others, you will need to get a judgeâ??s signature.

Once your paperwork is filled out properly, you will be given a hearing date, trial date, or response date will be entered by the clerk. You will either be given the information then or by mail, depending on the courtâ??s local procedures.

It is the plaintiff's responsibility to accurately identify the defendant, provide a proper address and, if possible, provide a phone number. You must furnish the precise legal name and address of the party you are suing. For example, S & J Construction, Inc. You may sue any individual, business, partnership, or corporation. The legal name of a business which is not a corporation may be determined by contacting the clerk in the city or town hall and requesting business certificate information. Another suggestion is contacting the your state Corporation Commission to find out the exact name.

Can I only sue companies in my state?
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Typically, the answer is yes. Some small claims courts wonâ??t even allow paperwork to be filed if the other party is out of town. Others may allow you to file in the state in which a contract was signed or where personal injury occurred.

How much does it cost?
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All states have different filing fees, but generally the cost is between $10 and $50, with some businesses paying a slightly higher fee.

Serving the notice
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In order for the judgment to be binding, the party being sued must be properly served. Depending on your state, either the court will serve the notice, or leave it up to you. It is vital to make sure the party is served properly.

If your state makes it your responsibility to serve the party you are suing, ask for a list of the qualified people or services you can use to serve the paperwork.

Preparing For The Trial
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As mentioned in the previous section, you can help yourself by being well prepared.

To prepare for the trial, collect all papers, photographs, receipts, estimates, canceled checks, or other documents that concern the case. It may be helpful to write down ahead of time the facts of the case in the order that they occurred. This will help you to organize your thoughts and to make a clear presentation of your story to the judge.

It is also a good idea to sit through a small claims court session before the date of your hearing. This will give you first-hand information about the way small claim cases are heard.

What Happens At The Trial?
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When you arrive at the court, report to the courtroom in which your case has been assigned.

When your case is called in the courtroom, come forward to the counsel table and the judge will swear in all the parties and witnesses.

Don't be nervous--remember that a trial in small claims court is informal.

The judge will ask the plaintiff to give his or her side first, then will ask the defendant for his or her explanation. Be brief and stick to the facts. The judge may interrupt you with questions, which you should answer straight out and to the best of your knowledge.

Be polite, not just to the judge, but also to your opponent. Do not interrupt. Whatever happens, keep your temper. Good manners and even tempers help the fair, efficient conduct of the trial, and make a good impression.

After both sides have been heard by the judge, he or she will normally announce the decision right then and will sign and hand the parties a judgment.

Tips for Addressing the Judge
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Judges donâ??t like flowery or long, drawn-out stories. They will have many cases to hear the day of your court appearance and will appreciate your getting to the point quickly. If you donâ??t get to the point within 3 or 4 sentences, you may annoy the judge. A good rule of thumb is that you should be able to sum up your case in 3-4 sentences. He also wants to hear how much you are suing the defendant for right at the beginning, so include this in your 3 or 4 sentence summary. Also remember that the judge is not going to be impressed as much with your story as with your evidence.

Donâ??t think you can describe your case in 3-4 sentences? Practice ahead of time. Donâ??t forget, that this is not all you are going to be able to say. After stating the case briefly, you can start to present your evidence which supports your case. Remember to not interrupt the judge.

Here is an example of a clearly stated case: â??Your honor, I pulled my credit report in March of 2002 and noticed a collection account on it. I never received notice of this collection per the Fair Debt Collection Practices Act and sent the collection agency a request to validate my debt per the same Act. After several requests to the collection agency, who never responded, nor removed the collection from my report, I notified them that if they did not remove the account I was taking them to court for violating the Fair Debt Collection Practices Act, section 809. They never responded, and per the Act, I am entitled to $1000 for the continued collection activity after request for validation.â? (OK< -- so they are long sentences)

What If My Opponent Does Not Appear For Trial?
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If the defendant fails to appear for trial, the plaintiff will be granted judgment for the amount of the claim proven in court, plus costs--provided the plaintiff can show proof of service.

If the plaintiff fails to appear, the claim is dismissed; however, generally the court will permit the plaintiff to start over, if good cause for the non-appearance is shown.

Can You Appeal A Case If You Lose?
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You can always appeal to a higher court, usually the superior court in your state. If you plan on doing this, there is usually a time limit in which to file, so make sure you file your paperwork in a timely manner. Court fees for Superior Court are different than small claims, again, your county courthouse clerk can answer questions about your filing fees and procedures.

Hope this helps!

 

Read the FDCPA VERY carefully, I believe once an account is PIF, you only have one year to file a suit. I say go for it anyway, but just read it again!