Guidance on filing my first lawsuit

Discussion in 'Credit Talk' started by bigdummy, Sep 18, 2003.

  1. bigdummy

    bigdummy Active Member

    Sorry for the long post, I'm getting ready to file my first lawsuit against a CA. I've gone through all the steps (which I've mentioned in other posts) and I would appreciate some help in what I should fill out on the paperwork. A quick summary:

    After first validation request, sent a photocopy of a letter from OC just stating I owed a balance. Also enclosed a demand for payment.

    Then sent second validation request with no response.

    Sent Estoppel, and they just sent a handwritten note asking me to call them about my case. At this point, they then also pulled a hard inquiry.

    Account was then marked as paid.

    Sent ITS stating that a paid account is not satisfactory, in which they responded that they never marked it paid (must have been EQ based on my dispute and procedural request with them), and that "If CA receives any further correspondence in the same threatening vein as earlier letter, they will turn over correspondence to appropriate legal authorities" based on a Florida Statute 836.05 about threatening letters and extortion.

    I appreciate any and all help in doing this right!
  2. Butch

    Butch Well-Known Member


    We need to know some basic information.

    How much?
    What Kind?
    What state(s)?
    Date of last activity?
    What's the SOL?
    Who's the CA?
    Are they licensed to collect in YOUR state? (Assuming your state requires it).


  3. bigdummy

    bigdummy Active Member

    Sorry Butch,

    Car Insurance
    DOLA 7/98
    Past SOL for Florida
    Creditor Services Inc.
    Are Licensed in Florida

    I had car insurance with this company, but cancelled. The photocopied letter they produced said thanks for cancelling but you still owe us this amount.

  4. Butch

    Butch Well-Known Member


    NitWit Creditor
    City, State Zip

    Certified Mail # 7000 0520 0020 5560 5214 (2-Pages)

    Re: Acct.# 123456789

    Mr. Sir/Madam:

    My repeated attempts to resolve this matter with you have obviously fallen upon deaf ears.

    You appear to be horribly confused about whoâ??s conduct is illegal. The Fair Debt Collection Practices Act, and the Fair Credit Reporting Act, guarantee me, a consumer citizen, certain legal rights to question the validity of any alleged debt. After numerous attempts to have your collection representative validate this alleged obligation they are still miserably short of so doing.

    Moreover, although I have not had time to transcribe all my conversations with them, I can assure you they have committed numerous violations of the FDCPA, all of which are carefully documented. YOU, as the alleged original creditor may be held liable for the actions of your collection assignees, via Vicarious Liability.

    I do not believe you are a holder with a security interest in my person, property or money, pursuant to UCC 3-105 (b), UCC 3-305 or UCC 3-306? Your collection representative has obviously sent me incorrect instruments with which they/you are attempting to induce me by FRAUD, UCC 3-305 (a) to acquiesce to for your benefit. You both have failed miserably to provide me with proper consideration.

    Blackâ??s Law Dictionary has defined FRAUD thusly:

    • An intentional perversion of the truth for the purpose of inducing another in reliance upon it (the truth) to part with some valuable thing belonging to him or to surrender a legal right: a false representation of a matter of fact, whether by word or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives or is intended to deceive another so that he will act upon it to his own legal injury.

    As of January 1, 1999, the Justice Dept., in co-operation with the Federal Trade Commission, has begun aggressive investigations and prosecutions into collection employees, and their employers who, after being informed by a Citizen of his or her lack of authority proceeds with collection activities against a citizen, using authority that do NOT EXIST to back up their actions, or, by using incomplete or inaccurate presentments, especially by way of the US mail, Fax, or telephone. If such an action is willful, the employee/employer may face charges of extortion and conspiracy.

    Moreover, criminal law has much to say about individuals or companies, whom, after receiving notice of a legal problem, proceed to threaten, intimidate and/or conspire with others to oppress, threaten, or intimidate any Citizen in the free exercise or enjoyment of any legal right. Lets take a look, shall we:

    • 18 U.S. Criminal Code Sec. 241 (in it's entirety)

      "If two or more persons conspire to injure, oppress, threaten, or intimidate any Citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, [Such as the FDCPA/FCRA] or because of his having so exercised the same; or

      If two or more persons go in disguise on the highway, or on the property of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured---

      They shall be fined not more than $10,000 or imprisoned not more than ten years or both; and if death results, they shall be subject to imprisonment for any term of years or for life".
      (emphasis added)

    Additionally, Pursuant to 18 USC Ch. 1, USCA If I, as a citizen of the United states of America, suspect that a felony might be occurring I am required by law to report it at once, otherwise I myself may be guilty of a crime. Lets take another look, shall we:

      CITE 18 USCA - 01/24/94
      Sec. 4. Misprision of felony -STATUTE-

      Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500 or imprisoned not more than three years, or both.

    At this point I am forced to initiate my own internal investigation.

    If you insist that you have provided any performance to which I am indebted by instrument that does bear my signature, pursuant to UCC 3-501 (b) 3, I hereby demand that you immediately exhibit the instrument(s) that contain(s) my signature, obliging me to your demand, under agreement. UCC 1-201 (3)

    Further, pursuant to UCC 1-201 (3) send me a photocopy of ALL documents that may be in your possession that you allege to have anything whatsoever to do with this alleged liability.

    • Pursuant to UCC 3-501

      1) Provide me with proof of your claim that you maintain a security interest, UCC 1-201 (37), in my person, property or money that makes you a holder to make a presentment.

      2) There are grounds for insecurity on my part.

      3) You may be in violation of numerous laws regarding willful constructive fraud!

      4) Please provide me with the name, address and telephone number of your office of chief council, and your registered/statutory agent for the state of XX.

      5) Your formal corporate mailing address and the name of the owner of your company or ceo.

      6) Please sign ALL documents under penalty of perjury so that I know who I'm dealing with.

    NitWit OC, you are only immune from prosecution if you can bring forth ALL the information I have demanded upon which you are relying as your legal authority. I do suggest you take this, your Xth and final notice most seriously. You may NOT rely on presumptive (prima face) authority after it has been rebutted and you have no evidence to the contrary.

    As you might guess, I am thoroughly prepared to deal with you if the need arises, but I must state that my patience is wearing quite thin. This serves as constructive notice that, if you have not responded to each of my concerns, on point, in order, WITHIN 5 WORKING DAYS, I shall file suit, quite possibly in federal district court, in demand of a jury trial. I will also include a motion to request the judge to forward a criminal referral to the DOJ.

    If you have any questions I can be written to at this address.


    NotSoDumb, BigDummy
    123 West St.

    cc: My atty. staff
    cc: YOUR atty. staff
    cc: Your corporate offices

    cc: Everyone else I can think of


  5. Butch

    Butch Well-Known Member

    That letter is not for you to send BigDummy. I just felt like letting someone "have it" today.

    I would tell you this tho, were this my problem I would send it. I've sent this, or something similar, before and you'd be astonished at how fast they jump through their respective butt's to fix the problem.

    When I did it I also copied their chief council and registered agent too.


    With Doc's permission I shall dub this letter:


    OK, back to work.

  6. Butch

    Butch Well-Known Member

    This is NOT validation.

    First, any val. MUST come through the CA directly from the OC.

    If you do owe it what do you think would happen if you tried to settle in exchange for deletion?

    If they become aware that you are aware that it's post SOL and they can't collect a penny, what would happen if you offered $50 bux to make it go away. (in writing of course)

    I've done that before too. It was a $450 debt (i did NOT owe) post SOL. I threw a hundred bux at it to make it go away. I made them undertsand it's the ONLY way they'll EVER get a penny. And it wasn't even a legit debt.

  7. rhondak

    rhondak Well-Known Member

    oooo I really like this one!

    added it to my already quite large folder of samples from this forum.
  8. bigdummy

    bigdummy Active Member

    Butch, god I love that letter! And I think Psychdoc would be proud!!

    Ultimately, you are right, you want it off your report; and I just want this stupid thing off my report. Do I owe it? I don't honestly believe I do. I mean when is it that you cancel car insurance and then still owe money? I guess if you missed a payment and then cancelled, but that did not happen.

    Isn't it backpedaling at this point to now offer them a few bucks for a deletion?

    Thanks for taking the time to 'educate' me!
  9. Butch

    Butch Well-Known Member

    Re: Re: Guidance on filing my first lawsuit

    Well ... technically yeah, I recon it is. But I'm a believer in "converting" my time to dollars, just like your adversary is.

    Believe me BD you would rather just fix the problem without the need to file suit if you can. I mean, I'm assuming you have a life and would like to just fix this crap and move on. lol

    Best way to explain is by furthering my own example. After considerable thought, I determined that the important thing for me was to have a clean CR. Nevermind the "principal of the thing" and all that. I reduced it to a pure, actuarial business decision. It was well worth the $100 (actually it was 200 now that I think about it) to just make the problem disappear.

    I also made sure they understood that I was NOT taking a step back, but merely trying to amicably resolve the issue for both sides. I didn't "take a step back" I took a "giant leap forward".

    They also understood that they have exactly 2 choices. Accept my extremely generous offer OR BE SUED. But of course I didn't come right out and say that. lol

    This is the one where I went to their office and sat there and talked to the "boss". It got pretty heated actually.

    He said if I sue he would pursue charges against me for "practicing law without a license". I broke out laughing right in his face. He said, "you can litigate if you want to but the owner of this company is worth over 100 Million Dollars and litigation can be quite expensive".

    I could do the pro-se dance with you until the cows come home my friend, said I. I can file in Federal District court in demand of a jury trial, I can pursue a demand for documents, interrogatories, depositions, motions, hell, I said, you'll have to hire a whole new staff of atty's. just to deal with me and spend the next 3 years just looking for paper. Now how much do you think that would cost ME? practically nothin.

    Long story short, after a long pause, he acquiesced. No doubt saw dollar signs flying out the window.

    And that's the whole point of Docs famous "Nuisance Quotient".


    For you, the first thing out of my mouth; "Look I don't want you to think I'm taking a step backwards but I've been thinking. I'm a busy guy as I'm sure you are too. You're past the SOL so you'll never see a penny unless I just pay it. Although I'm not agreeing that I owe you, tell ya what, if you'll agree to delete the TL I'll reimburse you for your expenses, say $50. Neither you nor I want to go through the expense of litigation for such a stupid amount. Whatcha think?"

    By offering two choices and 2 ONLY, one easy and the other fraught with danger, expense and the possibility of losing, which will they pick?

    Make it easy for them to "make the right decision".

    Be suddenly very nice and professional, BUT FIRM in your conviction that they have 2, and 2 only, choices.

    Don't get excited and don't forget to breathe (lol); just be mater of fact and business like. Take the HIGH GROUND; "lets just fix this ridiculous misunderstanding right now so we can both move on".

    (Use the word misunderstanding. It equally distributes blame and cancels each other out. Nobody has to be at fault that way)


    You DO have violations BD so you may approach this with confidence.

    That's how I'd do it BD.

  10. bigdummy

    bigdummy Active Member

    Re: Re: Guidance on filing my first lawsuit

    I agree with you Butch, I've got better things to do. I will try that angle, will fax them today, and I'll let you know how it comes out.

    THE BD
  11. bigdummy

    bigdummy Active Member

    Re: Re: Guidance on filing my first lawsuit

    Well, just got back a fax reply with simply "No thank you" on it.

    Okay, I guess its court time.

    Now I really want to make sure I do this right! Butch et others, your infinite wisdom is more than welcome!

    Be gentle, its my first time...

  12. Butch

    Butch Well-Known Member

    Re: Re: Guidance on filing my first lawsuit

    Well ... NUTZ ... lol

    Alright back to the legal dept. then.

    There are actually 2 schools of thought here. Historically, we've been talking about filling out a small claims form by articulating their violations.

    The other school of thought, of which I'm a member, is to simply state;

    "Numerous Willful, Neglegent Violations of the FDCPA and/or FCRA".

    This keeps them wondering what in the world you're suing for. It also robs them of an opportunity to build a defense because they'd know too much.

    I think once you file they'll come around. Hopefully you can get the attention of a more responsible, money conscious person up there.

  13. bigdummy

    bigdummy Active Member

    Re: Re: Guidance on filing my first lawsuit

    Yeah Butch, you would have loved it. A big No thanks, it almost looked like a happy face was around it!

    Anyway, when I sent the ITS, I did so with a photocopy of my small claims paperwork filled out, thinking they would see I meant business. Maybe they thought with my generous offer for deletion letter, and the big scary reply I got back from their legal department (HA HA) after I sent the ITS, that I'm bluffing, and won't file.

    Little do they know, I'm in the process of modifying Lizardkings template to fit my case. That damn thing would scare the pants of off anyone!!!

    Thanks again Butch for all your words of wisdom. I will keep you updated!!

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