Yes, you read that right! My small claims lawsuit which was scheduled for trial a week from now has now been changed to a hearing. Here is what started this all (condensed!): 1. I sent a modified validation letter to OC on 2 closed accts that was included in a bk 2 years ago. 2. OC pulled a hard inquiry. 3. I told them to remove it. They refused. 4. I filed suit in small claims - 5K - 5 violations of the FCRA (1 hard inquiry with no PP, 2accts reporting incorrectly, not marking 2 accts as "in dispute.") 5. Two weeks later, they removed the inquiry as "an act of goodwill." I got a call from the local atty for the OC (large, mega bank on East Coast). They wanted a continuance. I said "no, I have been ready for 6 months." They proceeded to tell me that I needed to come in that afternoon for a deposition and it would take 3-4 hours. They also would be sending me a list of items that they wanted for discovery. I told them that I would check with my atty before commiting to anything. I don't have an atty. I called the county clerk's office and asked if they could do this. She said they could, but they would have to get the judge to agree to it first. I was advised by the cty clerk to give them nothing before the judge ruled on it. So, the OC's atty contacted the judge's office and scheduled a hearing to determine if they can ask for depositions, discovery, interogatories, etc. Now, what the hell is going on here? I have offered to settle this case from day 1 for deletion alone. What could I possibly have to say in a 4 hour deposition? "They pulled my credit wihtout permissible purpose. The end." As far as discovery goes, I have copies of my credit reports, letters of correspondence to/from the OC, and a copy of the FCRA. All of this is available to the atty without getting it from me. What are they up to with this? WHy would the OC allow the atty to run up these fees? This just seems so ludicrous to me. Are they just hoping that I will cave? The county clerk said "this works both ways. If they are going to depose you, you depose them. Send them a 100 pages of discovery items if you can. Beat them at their own game." Experts, give me so tips here. What should I do? What should I ask for in discovery? Why are we doing this at all? Thanks, Lisa
The OC's attorneys are trying to intimidate you and overwhelm you. They are trying a strategy that is normally used in courts higher than small claims. They want to bury you in paper and inconvenience so you'll back off. But you probably know all this already. IF they are allowed discovery, you can modify the interrogatories that they send to you as the questions apply to your situation when you send YOUR interrogatories to them. Also, the same for the request for the production of documents. As for the depositions, ask to dispose the executives of the corporation that you've filed against since they should be knowlegable about what goes on in their company. If you haven't already named the executives in your suit or don't know their names go to www.edgaronline.com and register, then look for their corporate filings to get the names. You want to fight fire w/ fire. Now as far as the hearing, I don't know anything about small claims in your state (or what state) Research the state statutes that set up this court in your state and look for things like "to hasten dispute resolution" "quick resolution." You get the idea. Then when you go in front of the judge your argument can be that these attorneys are thwarting the PURPOSE that small claims courts was established for--most likely a SPEEDY resolution to problems involving small amts of money. Also mention how you've asked for settlement and that you're pro se. Just my thoughts... I bet Lizardking and Whyspers would have some excellent advice based on their experiences.
Send them what you discovered. Like the bug on the papertowel in the neighbors trash can. A penny that was "tails up", the pus from a pimple when you were 15. Show them all the Discovery channel tapes and print out all of the discovery web site pages, then I would send them a Discovery card application. Let your imagination go.
Oh, man! Are you kidding? If this wasn't such a PITA for you, it could be FUN! I can think of all kinds of questions I would like to ask them: 1) How many credit reports do they pull on closed accounts in the course of a normal business month? (Trick question, since they shouldn't be pulling reports on closed accounts at all.) 2) Who in the company is authorized to pull credit reports? 3) What security procedures do they have in place to prevent their employees from randomly pulling credit reports for which they have no PP? 4) What security procedures do they have in place to prevent unauthorized personnel from pulling credit reports? 5) Who has access to credit reports once they are pulled? 6) What security procedures do they have in place to prevent unauthorized people from seeing credit reports once they are run? 7) How many complaints have been filed with (pick one or more) the BBB, the AG's office, or the FTC about this company on the basis that they pulled a credit report with no PP? 8) How many times have they been sued for pulling credit reports with no PP? 9) How many complaints have been filed with (pick on or more) the BBB, the AG's office, or the FTC on the basis that they are reporting incorrect information to the CRAs? 10) How many times have they been sued for reporting incorrect information to the CRAs? 11) What procedures do they have in place to ensure that the information they are reporting to the CRAs is correct? 12) What procedures do they have in place to deal with disputes by consumers about incorrect information placed on their credit reports? Do you see where I am going with this? Put THEM on the defensive. Ask them pointed questions about their business practices. There are probably a lot more fun and interesting questions you could ask if we all really thought about it. These were just off the top of my head.
Kiyi, bear with me here, I don't get it! Mandy thanks so much for the ideas and link. I will certainly give that a look. If I depose their executives, I would assume it is at my own expense, correct? I am in Texas. Would they have to come to Texas from Delaware to be deposed? Should I get an attorney too? Do you both think that they are just going to bury me with useless, frivolous requests for documents that I won't even have? Like I said, my documentation consists of very little--2 credit reports, 5 letters written by me, 2 letters written by the OC, and a copy of the FCRA. They have all of this. My case is black and white--no permissible purpose and never marking the accounts as in dispute even through today. That's it. I've shown my hand! Are you saying to request ridiculous things from them as well? Anything that I can think of to request relevant to this case, the OC can surely dredge up (although they didn't bother to try during validation). Why are they doing this at all? Why spend one cent on driving me crazy when you could delete the tradelines for free? Can anyone shed some light on this? ALso, between me and the county clerk, we have educated this attorney every step of the way. I feel like she literally keeps forgetting this is small claims court.
Yes thats basically what I was saying but trying to be a little on the lighter humor side. The lawyer shouldn't even be involved if she isn't allowed in small claims court anyways. If you look at the above post, the author did have TONS of valid points if they want to go the disposition route. On the other hand, The lawyer shouldn't even be allowed to be involved. This is the part I don't understand. LisaMC, You have a good case, Stand firm, don't back down and I know for a fact you can do this.
Do you have your BK paperwork to show the accts were closed ( or whatever the status was)? How long did it take to remove the inquiry? More fun questions: 1) What is the title of the person pulling the reports? 2) Out of all the lawsuits concerning this matter, how many have they won, lost, settled, etc.? 3) What were the average lawsuit damages? 4) Have they ever fired an employee for unauthorized report inquiries, failure to follow FCRA guidelines or misconduct concerning a consumer's credit report? If so, how many? 5) How many demands for validation do they receive in a year? Who handles them? How long for resolution and what is the resolution? 6) Have they ever assigned a debt to a CA that has been sued for FCRA or FDCPA violations? How many? 7) Do they pull reports as part of pre-employment screening? 8) Are you feeling better now? ; ) Good luck !!
As far as I know, and I could be wrong, (but I doubt it) I don't think small claims court is going to allow any of that nonsense. Small claims is exactly what someone stated above - an avenue to quickly settle small claims. Not to drag out the case with depo's and discovery. That is for the superior court and federal court. I think you have nothing to worry about.
Lisa, What if they're right? If they get a check monthly or quarterly from the bk trustee, it has to be posted somewhere. What if there is still a Lisa account but, they can't send statements due to the automatic stay protection you have with the bk filing? Also, as another poster found out the hard way, chargeoff accounting is a different animal. Why not find out? E-mail the Federal Reserve and ask a hypotheical question about how a bank treats a Chapter 13 filing. I would ask specifically, how is the physcial payment from the trustee to the creditor handled? Is it treated as a preforming account or, an asset of some sort subject to recapture once the 13 is discharged? If so, they may well have a PP. Remember Holly and Cap1. She sues over the way interest {and other issues} are treated on a chargeoff. She offers to settle for a few thousand and ends up writing Cap1 a check for $650 {amount of chargeoff plus, $500 in legal fees}.
LKH, You are correct, I had a company I was suing try that crap in my small claims court, asking for depo's and such. They judge denied it and said it could only be done in district court and NOT small claims! You have nothing to worry about, the judge will see what they are trying to do and shoot them down. They will then want to settle with you. At this point I wouldn't, just for spite take them to court and sue them. Tac
I'll be short, since I tend to be wordy and I just can't do it, I tried and tried, I really did, to not respond ;-) -- I swear it! Texas does allow attorneys in small claims and allows limited discovery as well (allows for jury trials and appeals too!) Here's this, short and sweet and to the point it is: http://www.peopleslawyer.net/smallclaims/texasstatute.html I think Mandy is on to something though, in that same document is this: 28.033. Hearing (a) If both parties appear, the judge shall proceed to hear the case. (b) Formal pleading other than the statement is not required. (c) The judge shall hear the testimony of the parties and the witnesses that the parties produce and shall consider the other evidence offered. (d) The hearing is informal, with the sole objective being to dispense speedy justice between the parties. (e) Reasonable discovery in small claims court shall be permitted. Discovery is limited to that considered appropriate and permitted by the judge. That's what the hearing is about, the judge will decide what's appropriate. I think, feeding off of Mandy again, you could quote section (d) and plead to the judge that they already have in their possession all documentation regarding this matter. That the request for depositions is an attempt to deny you speedy justice, increase costs, and intimidate you into dismissing. Or, on another thread regarding this same matter, KristyW suggested finding an attorney that would work on a contingency, you are entitled to your attorney fees. From the US BK Code: http://www4.law.cornell.edu/uscode/11/362.html Sec. 362. - Automatic stay (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of - (6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title; The difference between Lisa and Mommy2Cats, is that Lise is protected by the automatic stay of the BK. I still think they are dumb, Lise, trying to wear you down and be intimidating, GROWL at them ;-) but I understand your anxiety as well, might you consider an consultation with an attorney at this point? Sassy Edit: Good idea, emailing the Federal Reserve direct!
whoaaaaaaaa, I didn't think Mommy2Cats got zapped with attorney fees. Did I miss something, keepmine? . Could you be thinking of Christine, she got zapped but that was for a different reason. Oh heck, now I have to go see if I missed a post or something. Sassy
Lisa, being in DE I can tell you that the attys for the OC are trying to snow you. Remember, this is a big corporate state..many megabanks are based hree as well as other large multinational corps. And since the army of lawyers running around Wilmington and Dover tend to get bored, they either try and pull tihs crap to amuse themselves or run for political office. Neither of which is tolerable...
4a) If not, how are employees reprimanded in these circumstances. 5) Are your new hires required to read the FCRA? Are they tested on it? Is their employment contigent upon knowing the FCRA?
Per my discussion with the county clerk, who was very knowledgeable about the process of small claims in Texas, the atty for the OC is well within the law to request depositions and request discovery. The cty clerk said "it happens occasionally when you get lawyers involved." Do I understand that the consensus of this board is that this is just a snow job? If they had truly wanted all of this, why didn't they bump it to federal or district court 6 months ago? THey could have done that, right?
one thing that has not been mentioned in previous posts is FCRA violation of obtaining information under false pretenses. § 619. Obtaining information under false pretenses [15 U.S.C. § 1681q] Any person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under title 18, United States Code, imprisoned for not more than 2 years, or both. They had absolutely no permissable purpose to pull your CR and they did so from the CRA under false pretenses. They were not offering you credit, job, reviewing collections, etc.... Since they are playing hardball, so should you. You might want to file a police report or even contact your local FBI field office since federal law was broken. Also contact your AG. Some previous threads I've read talk about how helpful AG coud be. If you go to the court and present the judge with a police report and a complaint letter from a AG sent to the OC, I think your case will be more powerful. This is just my humble opinion. EXPERTS: what do you all think about my rationale?
Lisa, Don't rely on the Clerk, although the clerk may be knowledgeable they are not an attorney. Contact an attorney and ask for a consultation or even pay for the consult. It will be money well spent and the attorney will let you know about what needs to be done and what they can do. I consult with my attorney all the time and most of the time I can call her and get an answer for free over the phone. If you must pay for the consult make sure you get a receipt since this would be considered attorney's fees that you can recover if your suit is a success. Good Luck and keep us posted. Tac
Yes they could have requested removal. You probably are encountering some attorney who is really excited to get some time in court. Many lawyers just push paper in the office so she may see this as her big chance "in court." Also the intimidation factor is there and that's why you need to show them that Lisa Consumer isn't going to roll over and play dead. My suggestion would be to focus on preparing for the hearing w/ a focus toward preventing the discovery and depositions. You want to quote anything you can find in the TX statutes that butresses your case and since small claims is less formal than other courts, maybe make a personal appeal to the judge based on a David and Goliath argument. Maybe mention that the case could have been resolved today instead of having this hearing today. IF discovery is approved then argue to have it limited. As far as documents, don't be intimidated if they ask for "any and all" of everything. You can respond that "your document retention policy prevents you from going back that far" (like a big corp. would say) and you can answer that certain things are irrelevant or priviledged and don't have to have to be produced. You can also ask for an extension of time. You might feel more comfortable consulting a local attorney if this phase is implemented though. Coming on strong (but well versed in your research of Federal and TX law)and showing that you're going to fight is probably your best defense against their tactics. And if you can somehow slip in at the hearing that you're going for not only the top brass (Pres., CEO, CFO, etc.) of the bank but every other level of employee in a direct line on down to the clerk w/o the permissable purpose and that you intend to pursue this, the opposing attorney may back down (even if only afterwards) b/c you're getting more and more expensive to litigate against. You might want to present to the judge that you are forced to do this to defend against their tactics. It seems like the bank is trying to keep others from filing suits and they are trying to make you an example. If you have the time and the inclination, don't let them and you'll be in a sense championing the rights of the "little guy" who has been wronged. And remember that any statute or case law that they can quote against your side usually has SOMETHING in it that is on your side or else it doesn't apply in your situation and it needs to be distinguished from the facts in your case.
Re: Deposition Discovery in Small C I didn't get zapped with attorney's fees - they are TRYING to get them saying I filed my suit just to harrass them. My hearing is tomorrow. It's a "no party need appear" hearing - but I fixed it so I had the day off and I'm going! And in most states small claims courts do NOT allow attorneys, motions, depositions, discovery, etc. The only way they can do it is to move the case to Civil. And the Judge has to rule on that..... Your state law may vary. I'll post tomorrow as soon as I know my results! Mommy2cats
Re: Deposition Discovery in Small C I would think by the OC removing the inquiry would be an admission of guilt. If they aren't guilty WHY would they remove it? Goodwill my @ss.
