HELP...the OC's attorney has spoken

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Courtroom Press Release, Dateline: December 2, 2003: greenvan LOSES case #5 on a technicality, and WINS case #6 for $1000.

The judge ruled that I had sued the wrong party and dismissed my case against Household International, Inc. The defendant's demurrer was granted. I apparently also committed a technical error by not attaching some of my documents to my response to the demurrer, thinking that they would simply be admitted into evidence during the trial. However, the judge ruled separately on the demurrer first, and without having the documents attached I was unable to present them and unable to prevail. I hate these technicalities!

The judge ruled that Orchard (or perhaps Household since they bought Orchard) was the responsible party since they had committed the act, and that I could not sue Household International under the FCRA for something that one of its subsidiaries did. I still do not understand this "separate legal entity" concept when it comes to divisions, affiliations, acquisitions, and subsidiaries involving major corporations and banks. Maybe someone will explain it to me in 5th grade English so I can understand. However, I THINK this means that whatever violator's name appears on your credit report had better also appear on your legal complaint.

Since Orchard was acquired by Household Bank, maybe I should have sued "Household Bank (SB), National Association". Or maybe I should have sued "Orchard Bank", or maybe Orchard Bank AND Household Bank (SB), N.A. ...I'm starting to get a headache now. The safest bet is probably to make sure that you file suit at least 3-6 months prior to the SOL expiration, so that if you accidentally file against the wrong party, you still have time to refile your case against the right party.

We never got to try the actual case because it was dismissed outright on the demurrer. Interestingly, the attorney handed the judge an affidavit for nearly $3,500 in attorney's fees (gulp!) that he was trying to collect from me. The judge noted that he had asked the clerk to pull the four previous cases that I had filed this year for him to review, and I started to sweat just a little bit. However, after dismissing the case, the judge said he was not convinced that I had filed this case in bad faith and therefore he was not awarding any attorney's fees. Whew! Be careful out there!

Bottom line is that Household paid $3,500 to defend my $1,000 claim. I don't know if this is typical of Household or not, but they were a real bear. No one else has even bothered showing up in court, but Household went for the jugular. I would be very wary of filing suit against them again unless it was a clear-cut violation that I could prove blindfolded. Maybe that's just how they want all of us consumers to feel. (I do not plan to appeal and risk those attorney's fees again, since it is solely up to the discretion of the judge and after appealing they would probably rise to $5,000. Too risky for my blood!)

On a positive note, I did win case #6 against FUSA involving a non-PP inquiry case for $1000 on a default judgment. As usual, the defendant failed to show. Hooray for FUSA! Now I get a few months off before I (carefully) play lawyer again.

 

Flip a coin. If it lands on heads, then sue heads and they will write a demurrer saying that you should have sued tails. If it lands on tails, you know what that means.

Just a guess at this point: Find out the address that the party making the inquiry reported to the credit bureau, then search back through the Secretary of State websites until you match a name with that address. Allow plenty of time to refile just in case you pick the wrong legal entity.

 

Re: Re: HELP...the OC's attorney has spoken

I filed it with the clerk so it went directly into the case file. The judge took a 10-minute recess this morning to read it. I also sent a copy to the attorney like you're supposed to do. However, he was complaining to the judge because I faxed it last night too late for him to receive it, and he saw it for the first time this morning in the courtroom. On the other hand, the attorney handed me three pages in court that he had just gotten and which I had never seen before, so it works both ways.

I personally find the state court rules and procedures somewhat confusing, and even unwritten at times. I'm hoping, if I ever get to federal court, that the rules there will be much easier to understand and follow.

 

Re: Re: HELP...the OC's attorney has sp

Thanks. Yeah, I do pretty well against defendants who don't show up in court. Show me someone who refuses to come to court, and I can beat them every time!

Strange thing on the FUSA. I tried to settle with their attorney for $900 so they could avoid a judgment. They refused to settle and yet still didn't show up in court. Go figure.