Filing in small claims court?

Discussion in 'Credit Talk' started by godaddyo, Apr 30, 2001.

  1. godaddyo

    godaddyo Well-Known Member

    I have seen someone on this board have a good experience filing in small claims court against CRA's, and/or CA's. The ceiling for filing in my court is 3000 dollars. The problem is that they will not let you sue for PUNITIVE just MONETARY losses. How do you file against them if this is the case. I am asking in reference to them not responding to validation letters and not following FDCA and FCRA protocol.Any input out there is going to be put to good use.
  2. Concerned

    Concerned Well-Known Member

    Try on this issue. The woman who monitors the board there Christine has done it successfully a number of times.
  3. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    Counter-actions To Small Claims

    Iâ??ll express the following comments from experience concerning debt litigation, to offer a perspective other than as plaintiff. In doing so please understand that while others claim good success using the small claims forum, IMHO this stems more toward cost-effectiveness than legal affects. That is in relation to jurisdiction, and the courtâ??s authority to hear the particular case.

    FDCPA specifies under 15 USC §1692k(d):

    • An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
    Using the informal forum of small claims, in conjunction with alleged violation(s) of FDCPA. The action must be maintained in the jurisdiction where the defendant (collection agent) is located; no court (other than Federal) is competent to hear the case. Suing in oneâ??s local small claims court against a collection agent that is located in another state, for example, is subject to defeat based on inconvenient forum. The defendant collection agent need only file a Motion To Quash Service Of Summons, and the case could be dismissed. Were the action filed in Federal Court, however, this would not be so as FDCPA clearly authorizes interstate action in â??United States district court.â?

    Granted lots of folks on the web CLAIM success using small claims, and I donâ??t doubt their word. The reasons being are that many collections managers arenâ??t ultra sophisticated in procedural law, and often find it more cost-effective to cut a deal. Hence the consumer thinks theyâ??ve won a major victory, when all theyâ??ve done is applied effective leverage. Hay if it works, fine, but small claims out of competent jurisdiction doesnâ??t equate to legal affect nor the necessary authority to enforce any judgment.

    My point being is that if youâ??re going to sue a collection agent, outside the scope of your local small claims court jurisdiction? Then the collection agent has some very strong defenses, including filing suit for recovery of legal costs among other allegations â?? 15 USC §1692i(a)(2).

    So while small claims is often touted as an effective means of exercising a consumerâ??s right under FDCPA (or FCRA for that matter). It has some pitfalls that are far too often neglected by those quick to claim success. Bottom-line isâ?¦ Make certain youâ??re on solid ground before suing, especially against one with the means to prevail by technicality and/or attrition!

    File in Federal Court if the agent is out-of-jurisdiction, youâ??re much better off despite the costs and formal nature.
  4. Saar

    Saar Banned

    Re: Counter-actions To Small Claims


    Thanks for an excellent post, as always.

    I haven't checked the actual USC source you quoted; It seems to refer to the FDCPA. Does it also apply to FCRA provisions, when it comes to small claims jurisdiction? Thanks.

  5. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    Re: Counter-actions To Small Claims

    Same principle. Hereâ??s the cite of 15 USC §1681p, FCRA (emphasis added):

    • Jurisdiction of courts; limitation of actions
      An action to enforce any liability created under this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within two years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this title to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendantâ??s liability to that individual under this title, the action may be brought at any time within two years after discovery by the individual of the misrepresentation.
  6. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    Re: Counter-actions To Small Claims

    LK (Good to see youâ??re posting):
    Actuallyâ?¦ NOT. But defeating service based on incontinent forum, and hence jurisdiction, is a â??use it or lose itâ?? proposition. You see simply because a business happens to offer itâ??s services in a particular area, does not equate to operations in that area; irrespective Judicial Counsel forms (that can be misleading). Yet in order for the defendant (collection agent, creditor or CRA) to thwart service, it must raise the issue.

    As noted, many times agents/CRAs donâ??t raise that defense for cost-effective reasons. However back in my days on the desk (as collections manager, then later as VP of Operations) I can tell you that I never lost a Motion To Quash, when a consumer alleged some violation of FDCPA using small claims. Of course, I usually had other actions filed in a higher court that gave them pause to reconsider too; especially if I were sure my people did nothing wrong. (Strange but, the consumer always paid for some odd reason â?? wink.)

    All in all, using small claims isnâ??t a totally poor tactic; so long as the consumer is well aware of whom theyâ??re dealing with. Because should they miscalculate and run into a collections manager that knows his/her stuff, they could achieve more than bargained for. That, at long last, is my primary point by bringing up the counter-issues. Lawsuits are a two edged sword, as are applying counter-tactics.

    Think of it this wayâ?¦ Is the collections agentâ??s tail the consumer is pullin, that of a kitten or tiger? [;-)
  7. Ender

    Ender Well-Known Member

    Re: Counter-actions To Small Claims

    Do you think the CRA's would have agreed to pay you around $300 on top of the deletions as well? If and when I do go that route, i am wondering that because I will have spent near $900 by that time. I am sending out 30 validation letters 3 times, certified mail, etc. plus the cost of filing the small claims lawsuit will run me near that. What do you think LK?
  8. Ender

    Ender Well-Known Member

    Re: Counter-actions To Small Claims

    Oh well - I am willing to spend up to $1k to clean my credit - to have perfect credit with ZERO negatives listed on there so I guess it's some sort of payment really. It just would have been nice to get some returns on it..

    As for sending things certified, this will allow me to have a pretty strong paper trail. I am doing 3 complete rounds with the creditors and CA's, and doing 3 round with the CRA's (really 6 because 1 round includes 2 sets of letters). Only on the 3rd round will I send RR as well before lawsuit. Anyhow, will let you guys know how things go..
  9. Crdt Dfnse

    Crdt Dfnse Well-Known Member

    Apples & Oranges, Sort of...

    I think weâ??re talking apples and oranges here. In the context of an earlier post of this thread small claims suits for violation(s) of FDCPA and/or FCRA were mentioned. Which is to say that if a contract were executed in a particular locale and the terms of which were to be governed by law in that area, then yes the local court would certainly have jurisdiction. In this case small claims would clearly have authority, depending on the amount in controversy and subject issues.

    Suing for some breach of a contract term, whether express or implied, is far different than strict litigating for violation(s) of FDCPA. Simply because such violations are alleged to have occurred as an ancillary result of that contract, doesnâ??t automatically equate to jurisdiction under FDCPA.

    But hay, under the context youâ??ve mentioned an argument (court-wise) could be made either way. So all in all Iâ??d have to agree with you, when conjoined with a contract or some issue thereof a case in small claims could be made for alleged violation(s) of FDCPA in a local court. That is, so long as that court had some means to cite jurisdiction such as a specified venue within the contract.
  10. CardKid

    CardKid Well-Known Member

    Re: Apples & Oranges, Sort of...

    Crdt Dfnse:

    What's your site all about? Is the release date your launch date? Curious!!

  11. godaddyo

    godaddyo Well-Known Member

    Re: Apples & Oranges, Sort of...

    Thanks for the info folks! It gets confusing trying to brainstorm these scenarios all by yourself. Thanks again!


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