I recently sued creditor AAA in state court for $1000 total for FCRA violations. The attorney for AAA called the court on the morning of the Return Date, said he might not be there in time for the hearing, and asked the judge to set a date for trial. When the attorney did not show up that morning, the judge set a trial date in December. (Note: state law says that "A civil action may be brought by warrant...requiring the person against whom the claim is asserted to appear before the court on a certain day (i.e. the Return Date)...to answer the complaint of the plaintiff set out in the warrant.") QUESTION #1: Should the judge have awarded a default judgment because the defendant/attorney failed to appear in person on the Return Date? The attorney then called me and said that he wants the judge to order both sides to file pleadings (i.e. Bill of Particulars & Grounds of Defense) in advance of the trial. The judge apparently told him that I would need to sign an order allowing that, and the attorney wants to fax me the order to sign. Now, something tells me that it would not be in my best interest to do ANYTHING the defendant's attorney is asking me to do! The attorney wants the pleading so he can find out what the case is about before the trial and prepare his defense. At this point, all he knows is that I sued for $1000 for "Violation of the Fair Credit Reporting Act." Period. QUESTION #2: Why didn't the judge order the pleadings on the Return Date? Do these need to be specifically requested by either the plaintiff or the defendant? QUESTION #3: Should I sign the order for the pleadings? It seems to me that creditor AAA is prepared to spend more in attorney fees than it would cost to simply pay the $1000 or try to settle for something less out of court. I will be at a disadvantage going against AAA's attorney in state court and my case is probably not very strong. I was originally hoping for a no-show and a default judgment in this case, but that didn't happen. QUESTION #4: Would it be wise at this point to send both the attorney and creditor AAA an offer to settle for $500? (Remember that my complaint was intentionally vague as to the FCRA violations, so how would I even word the settlement offer? What would keep me from simply cashing their $500 check and then filing a new case for the exact same FCRA violations?) QUESTION #5: Should I consider hiring a local attorney who knows the rules of procedure on a contingency basis? (If he wins the case, the court would award "reasonable attorney's fees" and I could also share one-third of the final judgment, which should leave me with about $666...EVIL NUMBER... if all went well.) Thanks in advance for your opinions and advice. The hardest part about going to state court is trying to understand the various local rules of procedure, which the judges and attorneys already know. This is one reason why I'm considering filing all future lawsuits in federal court.
I'm no attorney, so consider these comments to be only the personal opinions of a layman. -*- If the creditor violated the Act, then they violated the Act. They can't undo that violation now by supplying the information you requested or by sending you proper validation or by quickly correcting the information, etc. Put differently, if you were caught speeding last month by a Kansas state trooper, you can't send a note in lieu of payment this week saying, "I drove through your state yesterday and didn't speed, so we're ok now." -*- Hopefully you've documented exactly when and how the creditor broke the law. -*- I would not sign anything the opposing attorney sends you without first being notified by the court. -*- On the other hand, when I sued the three big credit reporting agencies, I certainly did forward to each of them a multi-page letter detailing their violations. Even though I only had to write a vague one-liner on the court form (something like you mentioned -- "violations of the Fair Credit Reporting Act" or the like), I went ahead and sent a fairly elaborate list of violations that closed with an offer to settle. In my case I was seeking only tradeline deletions rather than money. Your goals may be different of course. -*- Regardless, indeed you may (operant word here is "MAY" rather than "SHOULD") want to send the opposing attorney a letter which describes their violation and offers to settle in advance of court. Depending upon the judge, a weak case may prevail due to its technical validity, or it may be dismissed. For that reason, and since you've acknowledged a weak case here, I certainly WOULD attempt to negotiate with the attorney in advance of the court date. -*- As for what the judge should have done, basically there's no good answer, and it wouldn't make any difference anyway. To my understanding, the judge doesn't have to automatically rule on a case rather than postponing it in these circumstances. Judges often do rule against those who don't bother to show up, but that's not always the case. Likewise, the judge isn't obligated to order pleadings at any particular point. -*- Finally, if your case is very, very, very weak, and you get nowhere with opposing counsel, you may consider withdrawing the case. However before you do that, I hope you will solicit more opinions here. (As for hiring local attorneys, they're unlikely to take on a very weak case on a contingency basis, but perhaps you have an attorney friend who will do so regardless.) I hope some of these opinions prove useful. Good luck to you! Doc
Thanks for your response Doc. It's always good to get a layman's opinion, although I would tend to classify you as more of a "veteran layman." I am not overly confident in this case primarily due to lack of information. I have been unable to get enough information from both Experian and the creditor to determine if a violation actually occurred. Let me tell you about the case. This is a permissible purpose (PP) inquiry case in which the creditor made a soft inquiry on Experian. Due to the way Experian reports, I could not determine if the inquiry was an account review (AR) or a promotional (PRM). So, I wrote to the creditor and asked for an explanation of the PP for the inquiry made on that date. I then received a very interesting letter from the creditor. The creditor stated in writing that the inquiry was an account review associated with a new credit card that I opened in 2003. Since the inquiry in question was made in 2001, you can see that is simply impossible. Based on the creditor's letter, I decided to go to court. The case is further complicated by the following: (1) The inquiry was made by Company A. (2)I never had an account with Company A. (If this was an AR then I have a violation; if this was PRM then there was no violation.) (3) Company A was bought out by Company B. (4) Company B apparently still uses Company A to service Company B's credit cards. (5) I had a Company B account that was discharged in BK in 1998. BY COINCIDENCE, the discharged account is the EXACT SAME CREDIT CARD as the new account that I opened in 2003 and for which Company A claimed in its letter to have done the AR. (If the Company A inquiry was an AR on the discharged Company B account then I have a violation; if it was PRM then there was no violation.) So I have a problem in that, as the plaintiff, I have the burden to prove that a violation occurred. This means I have to prove that the inquiry was an AR and not a PRM (and I still don't know the truth). Given this uncertainty, I am trying to fashion the best strategy for court. I believe that the creditor's own letter is my best piece of evidence and that the following courtroom strategy might work: 1. Ask the defendant if he received my letter requesting an explanation of the PP. 2. Show the green card with the defendant's signature as proof of receipt. 3. Ask if the defendant responded to my letter. 4. Ask what the defendant's response was. 5. Show the defendant's letter to the judge. 6. Ask if that is still the defendant's position (hopefully he will say yes). 7. Produce evidence showing that the 2001 inquiry could not have been an AR for an account opened in 2003. 8. Argue that since the defendant failed to explain his PP, my credit report was therefore pulled without a valid PP in violation of the FCRA, and REST MY CASE. MY MAIN WORRY is that the defendant will assert in court that his initial letter was in error and that the inquiry was actually a PRM. I'm still looking for some strategy to counter this.....such as objecting on the grounds that defendant already evidenced his PP in his written communication to the plaintiff, etc. [I need some good legal input here!] To touch on some of your other points: (A) I would never drive through Kansas, so I don't think that will be a problem. (B) My goals are different. (C) It's a Catch-22. I can't settle without describing the violation, but if I describe the violation they will know that I have a weak case and also know how to defend. Since I currently have the element of surprise going into court, I am leaning towards NOT trying to settle and instead just beating them over the head with their own letter in court. (D) I don't think my case is "very, very, very weak." However, it would be interesting to hear some other opinions as to exactly how weak (or strong) this case is, especially considering what the creditor stated was his PP in his original letter.
1. Let's see first if it was an Account Monitoring [AM] or Account Review [AR], when one of your creditors performed a periodic review of your account: [color=0066FF]§ 604. Permissible purposes of consumer reports [15 U.S.C. § 1681b] (a) In general. Subject to subsection (c), any consumer reporting agency may furnish a consumer report under the following circumstances and no other: (3) To a person which it has reason to believe (F) otherwise has a legitimate business need for the information (ii) to review an account to determine whether the consumer continues to meet the terms of the account.[/color] The keyphrase here is "to meet the terms of the account". You said that the inquiry was made by Company A and you never had an account with Company A, therefore it was not neither AM or AR. 2. Let's see if it was a Promotional [PRM], when your name and address were given to a lender for credit offers, such as credit card solicitations: [color=0066FF]§ 604. Permissible purposes of consumer reports [15 U.S.C. § 1681b] (c) (1) In general. A consumer reporting agency may furnish a consumer report relating to any consumer pursuant to subparagraph (A) or (C) of subsection (a)(3) in connection with any credit or insurance transaction that is not initiated by the consumer only if (B) (i) the transaction consists of a firm offer of credit or insurance; [/color] The keyphrase here is "not initiated by the consumer". You didn't initiate it and you didn't get any offer, therefore it was not a PRM. 3. As per your post you should have one TL for the account with Company A, which was bought out by Company B, and another TL for the account with Company B account that was discharged. So, do you have two TLs and on which one of them did you get the inquiry? 4. When you say "The creditor stated in writing" which creditor do you mean - Company A or Company B? The account numbers could be the same, but an account is identified also by it's date of opening, balance, status, so the creditor might be trying to mislead you in this letter.
Your logic seems right to me. I would stick with the letter as evidence that the creditor already stated his intention of pulling an inquiry------>as an "account review." Because you have no accounts with given creditor, a violation of the FCRA occured. If you go to court on this one, I wouldn't even bring up the possibility that it was a PRM inquiry, unless the defendant argues that as a defense. It **seems** their credibility would come into play if they did that. They have already stated the inquiry was for "an account review" by their own words and now that a suit is filed they change their statement------> seems suspicious. Also, I agree, I wouldn't sign anything that wasn't manadated by the court. Make their job as difficult as possible and give them as little information as possible (unless of course you were settling). Good luck on this one!
Re: Re: HELP...the OC's attorney has spoken I like that angle! Yes, it's a credibility issue. They already stated in writing that the inquiry was for an account review. If they now change their story after being sued, then what credibility would they have with the court? Thanks cinderella for another winning idea, and I'll definitely need all the luck I can get on this one!
Re: Re: Re: HELP...the OC's attorney has spoken greenvan, the Truth is born of Arguments ... Wish you all luck in the court!
Re: Re: Re: HELP...the OC's attorney has spoken UPDATE: The attorney sent me this letter tonight: Dear Mr. greenvan, As I have said in my phone message to you, the judge in your warrant in debt action has asked that we submit an Order directing both parties to file pleadings in this case. I enclose a proposed Order that would require you to file a Bill of Particulars pursuant to Rule xxx of the Supreme Court of xxx by no later than xxx. The defendant would be required to file a Grounds of Defense by no later than xxx. If this is agreeable to you, please endorse this Order and return to me by no later than xxx. I will, in any event, tender this Order to the court for entry by no later than xxx. Sincerely, Friendly Attorney ..................................................................... ORDER REQUIRING PARTIES TO FILE PLEADINGS This matter came before the Court at the xxx return date for the Warrant in Debt filed by plaintiff greenvan. Defendant xxx, by counsel, requested that the Court order pleadings pursuant to Rule xxx of the Supreme Court of xxx. The Court instructed Defendant to confer with Plaintiff in an effort to arrive at dates by which each side would be required to file pleadings and then submit an order reflecting these dates. It appeared to the Court that Defendant has conferred or attempted to confer with Plaintiff and that good and sufficient cause exists to order pleadings in this matter. It is accordingly ORDERED, ADJUDGED, AND DECREED that 1. Plaintiff is hereby ORDERED to file and serve a Bill of Particulars on or before xxx. 2. Defendant is hereby ORDERED to file and serve a Grounds of Defense on or before xxx. 3. Defendant shall serve a copy of this order on the Plaintiff upon entry. I ASK FOR THIS: (signed by Friendly Attorney) SEEN AND AGREED: (to be signed by greenvan) ................................................................... * I think his statement that he will "tender this Order to the court for entry" regardless of whether or not I sign it could be a bluff, but I'm not certain. I don't know if the judge will sign the Order without my consent. * The Order is addressed to the wrong person! He did not use my correct legal first name. (William is normally a proper name and Bill is normally a nickname. If he put William, then the name on my birth certificate and on the Warrant in Debt is Bill. My name is not Bill, but this illustrates exactly what he did.) * If the judge truly wants to see these pleadings, he may be upset if I don't sign the Order and I suppose he could even dismiss the case. However, the judge also knows that I was present and ready to try this case on the return date whereas the defendant failed to appear on the return date to make his request in court for the pleadings. That could be the reason why the judge wants the defendant to have me agree to file the pleadings. * Does anyone have any good advice on how to handle this?
Re: Re: Re: HELP...the OC's attorney has spoken The defendant's attorney sent me a proposed ORDER REQUIRING PARTIES TO FILE PLEADINGS and wants me to sign it. Any thoughts on how I should handle this? bump
Re: Re: Re: Re: HELP...the OC's attorney has spoken Don't be afraid to call the judge's clerk and confirm that he or she ordered, via opposing counsel, that pleadings be filed. Further, always be leary of ex parte discussions between the opposing attorney and the judge. Even though I make my living working for attorneys, many of them have no more credibility than the creditor you're suing.
Re: Re: Re: Re: Re: HELP...the OC's attorney has spoken Thanks. I spoke with the clerk who then looked the case up on the computer and said that the following note was posted: "Defense to submit an agreed order as to Bill of Particulars & Grounds of Defense." Also, the attorney left the following message on my work answering machine: "I've asked the judge to order that both sides file pleadings in advance of the trial, and I need to, if possible, get you to sign an order that will allow for that." On my home answering machine, he indicated that I needed to approve the dates on which the pleadings would be due, and then suggested some appropriate dates himself. I thought the judge set the dates, not the defense attorney! This wishy-washy language tells me that he can't get the pleadings unless I agree to it. My current position is that I'm not signing or agreeing to anything that the defense attorney wants. He can submit whatever he likes to the court WITHOUT my signature, but I take my orders only from the judge. This may get me in trouble at the trial, but I'll take my chances and just plead pro se ignorance of the rules. I am very concerned about these "ex parte" discussions between opposing counsel and the judge. Why do I need to sign my "agreement" to this order? The communications I've received so far seem to indicate that the defense attorney cannot force me to file a pleading without first getting my signed consent on the order. If that is the case, then he'll get his pleading when Hades freezes over.
Re: Re: Re: Re: Re: HELP...the OC's attorney has spoken Here is an update on this case: I consulted with a local attorney who said that the defendant was entitled to the pleadings and the judge always orders them when requested. He advised that I submit a Bill of Particulars as requested by the defendant. On the positive side, I will then receive the defendant's Grounds of Defense which will let me know how they plan to defend. The local attorney agreed that the creditor is now obligated by the permissible purpose they stated in their letter (which I can easily disprove). If they attempt to bring up a different PP in court, then it becomes a credibility issue..."I asked what your PP was before I filed this suit and you told me one thing, now you're saying something different in court, what are you going to say the next time?" Based on the local attorney's advice, I will file the Bill of Particulars as requested. I also plan to include with the Bill of Particulars an offer to settle for $700 (and will also send the settlement letter to the creditor's corporate headquarters). If they don't settle, then we go to trial in General District Court in December. It is good to consult with local attorneys because they know from experience how the judges are likely to act.
Re: Re: Re: Re: Re: HELP...the OC's attorney has spoken If you do the Bill of Particulars yourself, be as vague as possible, i.e., violation of 15 USC 1681, etc., etc. Try not to be too, well, particular so as not to educate the opposing attorney. The settlement idea is always a good idea, IF it benefits you first. By sending along an offer of settlement along with your allegations, it's possible to undermine the strength of your case. But you're in a better position to know. The judge may also try to get both sides to settle as well.
Re: Re: Re: Re: Re: Re: HELP...the OC's attorney has spoken If it's not too much trouble, would you post it here or email it to me (without any personal and identifying info, of course)? I have no court experience (yet, so it would be useful to see what it looks like ...
Re: Re: Re: Re: Re: Re: HELP...the OC's attorney has spoken That's a good point on the Bill of Particulars. In my case, I had previously written the creditor requesting an explanation of their PP for the inquiry on my CR. So, in the Bill of Particulars I simply repeated the same information I had provided in that letter. I gave them absolutely no additional information except to claim that the letter they sent back did not provide a "valid" PP (with no further explanation as to why it was not valid---save that for court). The local attorney also reviewed and approved my Bill of Particulars. The pleadings are not intended to be a means by which the opposing party can conduct discovery in the case, especially since discovery is not an allowable practice in the general district court. Since the outcome of any trial is uncertain, I would gladly accept $700 as a sure thing with guaranteed payment as opposed to gambling for the $1000 judgment and then still having to collect on the judgment at a later date. The opposing attorney has to travel 150 miles round trip each time he comes to court and is racking up charges fast. I can easily disprove their stated PP (AR inquiry in 2001 CANNOT be for an account opened in 2003), but I haven't told them that so they may develop a false sense of security and just stick with that story. Also, they may want to settle just to avoid the possibility of a judgment being entered against them and raising their insurance rates.
Re: Re: Re: Re: Re: Re: Re: HELP...the OC's attorney has spoken I can email it to you later in the week (after I finish editing it), but I'd rather keep it off the boards for now.
