I am currently running another thread regarding this situation (http://consumers.creditnet.com/stra...ad.php?s=&goto=newpost&threadid=47924&pgnum=1). Quick summary: OC assigns account to CA after claiming I did not respond to 3 past due bills. CA receives account and lists it on my credit report. I am now aware of the alleged debt. I contact CA for validation. It takes them three months to obtain it but during that time, they fail to update entry as disputed and verify their listing twice w/o verifying with original account records (3 violations here). They end up partially validating. I offer to pay the OC to have it removed and they say NO. I disputed the debt 5 times with Experian and they refuse to remove it despite the CA only partially validating. I have decided that I want to create a huge headache somehow for the OC so they will get the CA to remove the entry. However, since the OC can't be held responsible for the CA's violations, I can't do much, as far as I aware, other than name the OC as a co-defendant and make life hell on them by requesting useless documents for our trial as part of discovery. And then, right before the case begins, if they still refuse to delete, remove them as a co-defendant (since they can't be held liable for the CA's violations) but still subpoena them to appear in court. Does that sound about right? Now, here is my main question. Is there any benefit to filing the suit in Federal court? I would really prefer just to take it to state court since it is convenient (a few minutes away) and cheaper ($52 instead of $150) vs. in the heart of Detroit like Federal. Plus, I can accomplish the same procedures in both courts (issue subpoenas, start discovery proceedings, etc). The way I see it is: Small claims court is like little league baseball. The rules are there but they are very flexible and things are really relaxed. State court is like college baseball. The procedures are set in stone but your really not in the big times yet. Federal court is like pro baseball. This seems to be the place where your game must really be on. Hardly a place where I would want to represent myself for the first time. Small claims would be best but in Michigan, you have no right to pretrial discovery. So, since State is the next leg up, I think that would be best. Also, a lot of people state you should request a jury trial. Why? As stated above, I fully expect the defendants to take this all the way to court and I know with a jury trial, I will have to pick 'em and I have no idea what that entails. Is a jury trial much more advantageous than a judge trial?
First, DEFINITELY go for a Jury trial. Judges generally tend to be from the class of people who favor big business. Jurors tend to be poorer and more prone to side with the poor consumer battling this big, nasty collection agency.. You will have to educate the jurors as to what the law is as you see it and how it applies to your case and how egregarious the defendants' violations are, but the will seem themselves in your shoes a lot easier than a Judge will. Try to eliminate with challenges for cause any jurors who are wealthy, or are professionals, since they will tend to be more conservative than you'd like. Try to keep the poor and especially try to find jurors who have tainted credit or who have ever been dunned by a Collecton Agency. Thye may see your case as an opportunity to create the precedent for when THEY turn around and sue THEIR creditor. Next, try your case in STATE court if you can. Federal Judges tend to think they are "higher" on the heirarchy of Judges and will look at your small potatoes case with a scant eye. You don't want the Judge to be giving subliminal signals to the Jury that this case is a waste of everyone's time. Also, see if you can try it inside the Detroit city limits, since the juror pool will be of lower socioeconomic status than the surrrounding suburbs.
Thank you very much! All excellent suggestions and I will definately use them. Have you ever picked a jury pool? What exactly does that entail? Is it a court appointed date or is it something I could do on the weekend so I don't have to take another day off work?
Not only have I never chosen a jury, I have never sat on one. Court on weekend? Except for Small Claims and Criminal Arraignment, you jest, of course.
File in State Court. If you allege FDCPA violations most likely the CA will attempt to move venue into Federal Court, you can oppose this and if your judge is halfway ethical you will stay in State Court. As far as a jury, James Publishing has some very good manuals for jury selection, jury questionaires etc. I would definately read your state's rules of court and learn all you can about motions, discovery, etc. Be prepared for a flurry of motions once you file this. Most likely Defendant attorneys will file insufficient service, improper process, failure to state a claim, failure to name additional party. Your first few weeks will be nothing but filing oppositions to these motions. If you learn about these before you file you can lay out your Complaint in a manner that makes it harder for the other side to file these types of motions. Mainly, other than knowledge of civil procedure, remember that even though the other side will hire attorneys, you probably know more about the FDCPA, FCRA than the attorney, they will definately attempt to intimidate you so you should definately have thick skin and not be afraid of confrontation. They are no smarter than you. Also look up your state statutes on consumer protection. Your state most likely has laws that will allow you to include the O.C. as a defendant. Good luck
Click here: CREDITNET | Straight Talk | | Jury v. None...State v. Federal? SUNHAWK ================ How did this work out? THE END ** *** ** LB 59 """""""""```~~~```'"""""""""
In TX, it is in the statute that OC's can be held liable for the actions of CA's. Cneter's have gotten some mileage out of the American Family Publisher's consent agreement, where the FTC held them liable for CA actions. But no case law as far as I know. Interesting, the FTC used the FTC Act (I believe). There is info on it on their website. I'm shooting from the hip here, but I believe it had to do with Unfair and Deceptive Trade Practices. You might take a look at it.
Sunhawk, Anytime you file a federal claim in state court, you run a risk that the defendants will remove the case to federal court. As long as removal is proper, the plaintiff has no way oppose it. The only way around that is to file a lawsuit that does not allege a federal claim. If your state has a consumer protection statute that applies to your situation, you could bring your suit under the state statute to avoid removal. Just be sure that you do not include ANY federal claims in your complaint. You'll have to weigh the advantages of your state law to decide if it's as good as the FDCPA. If not, it might be better to sue in state court under the FDCPA and run the risk of removal. It's probably not a good idea to sue people that you know are not legally responsible for your damages. This could alienate the court. It also brings in additional sets of lawyers who will force you to fight on more than one front creating more work for you. It also reduces the chances that the defendants will overlook something or make a mistake. There are no discovery advantages either. You can get information from non-parties through subpoenas.
