A few months ago, a creditor attempted to sue me for to obtain a judgment. I responded to the complaint and made a "Demand for production of Documents" By the court date, they failed to produce and didn't even show up to court. Their complaint was dismissed. We today in the mail, I received three copies of credit card statements with my name on them with payments reflected as late as 01/99, with a letter stating I need to respond within 5 days. This is not what I had requested pursuant to the FDCA. I requested a signed/dated contract or application with my signature. Can they use these statement to file another complaint against me. Will the courts consider this substantial documentation?
If the case was not dismissed "with prejudice" they can refile.What State are you in? Was this civil or small claims court?
Unfortunated, it was dismissed by default because they did not attend. From what I'm told, they can re-file, but I don't know if they documentation is will support this claim. It was file in civil court. Is there a big difference between civil and small claims?
Lizard, thanks for the advice. For my own info, what is the minium thershold as required by the FDCPA?
Small claims *IS* civil court without attorneys. They are most likely suing you in Superior Court so that they can recover their attorney fees. In response to your questions about statements only, I've seen it go both ways. I've had cases where the statements were considered substanitive and others where they were not. Typically they will try to obtain a charge slip with your signature if they cannot locate the original cardmember agreement. Most chargeslips are contracts which bind you to the cardmember agreement. Good luck. JASON@LEGISLATOR.COM
I had a judgment against me last November. In my motion to vacate I pointed to the fact that the amount was erroneous and that the attorney was fabricating the final judgment amount. I filed a Subpoena for Information compelling him to provide proof of the final judgment amount. He filed a protective order, did'nt answer my Subpoena and my motion was denied. So the skinny is that I have an account that was confirmed on my credit reports for $4100 and the judgment was for $7400. Any ideas?
Yes I did, but this was before I was enlightned about my rights under the FDCPA. I did fight claiming the debt was past the SOL. This was due to the fact all three of my reports showed a Date of Last Activity in 1997. The lawyer then produced all my statements, the last one showing a payment in 1998. At the Motion for Summary Judgment I was caught real flat-footed and the judge allowed us one more week to reach a settlement. I proposed to pay 100% of the debt, the attorney smelled blood...faxed me a letter no deal..he wanted debt + attorney fees + interest. I would if I could. My first motion was denied and I got hearing in front of the judge to present an ammended motion. She denied me and in her written decision lambasted me for filing the motion a second time. This judge was a real b*tch on wheels. Can I file now in district court? If a judgment is void and the evidence is irrefutable that it is void, how can a judge have the latitude to deny the motion? If the creditor is reporting a different amount than the judgment amount is'nt that a blatant violation of the FCRA?
All I can suggest as you move higher up the judical food chain, you're better off using a lawyer. This is just a personal observation but, my experience with small claims court judges is they are very much biased against defendants . These people are "The Peter Principle" in action. All of their law school classmates are either judges at much higher levels or, are making huge bucks in private pratice. If these guys had much on the ball, they'd be doing the same thing. All they do is follow the book all day long and hope they can stay on the bench long enough to collect a hefty state pension.
It's not all just about the money, and some U.S. Court of Appeals judges began their careers in small claims. Saar
My experiences in Small Claims Court quantify what you are saying. I saw on a thread here someone use a real gem, "If you go to Small Claims court and expect Perry Mason you probably get the People's Court". The judge who denied my motion for vacation a second time misquoted the Florida Statute in her denial. This dummy contended that I had 10 days from the entry of the judgment to ask it to be vacated. The Florida Rules of Civil procedure clearly state one year. I would complain to Florida Bar about her blatant bias and incompetance, but I may run into her later and did'nt want to have any problems. Oh well I guess I will have to bite the bullet and hire an attorney. One good thing though the judgment was in November and it still is'nt showing on any of my reports. Could I be this lucky?
