If you file in federal court, there are no fill in the blank forms. You will have write out your summons and complaint like lizardking did. If you do a search here for his lawsuits, you should see an example. It needs to be in an outline form, listing the allegations one by one. If you think you may go this route, it might be a good idea to get a short consultation with an atty and see what they say. Maybe an atty would take it on a contingency. But, I'm not saying you can't do it yourself. It's just very much more detailed and will be a lot more work.
I think I will just go with small claims first to get my feet wet. I think I will be much more confident in that setting my first time out. I will reserve federal court for future lawsuits depending on how this goes.
I agree. But a consult with an atty may still be a good idea just in case they do bump it to federal court.
Are you sure it's accurate to say they can't countersue for the debt? What is your reasoning for insisting that they are not permitted to and subject to sanctions?? :::::
Butch, Filing a lawsuit based on a CA not providing validation is about as big as a legitmate dispute as you can get, if the CA responds by counterclaims against the underlying debt that is disputed. That is considered a collection activity. The Plaintiff will be able to hang the CA based on their counterclaim alone. As far as the $1000.00 per action, the case law that I have researched pretty much lays out the premise that the Plaintiff can only recover up to $1000.00 (statutory) per action. That doesn't mean you can't recover more in actual and punitives. I will post whatever I can quote here in a bit, I am barbecuing salmon at the moment so it will be awhile. And if I am wrong, that's great for us! This is all based on my own research, I am not an attorney, but based on my history with attorneys I probably have a better chance of being correct.
Butch, did you go to the link that jambe posted earlier in this thread? It has some good stuff. http://www.edcombs.com/CM/News/news7.asp...
Speaking of that link, I did request "the entire article with the supporting materials" but that was just Friday, so I imagine it will be a while before I get anything. There is some other very interesting article in a lawyer newsletter that talks about recent case law and it's effect on either the FCRA or the FDCPA, I don't remember which. If I can find it I'll post. I usually download good stuff like that...
An FDCPA claim â??has nothing to do with whether the underlying debt is valid. An FDCPA claim concerns the method of collecting the debt. It does not arise out of the transaction creating the debt[.]â? Azar v. Hayter, 874 F. Supp. 1314, 1318 (N.D. Fla. 1995) (refusing to find waiver of FDCPA claim as compulsory counterclaim to state court action on the debt because claim â??does not arise out of the transaction creating the debt, and thus was not a compulsory counterclaim under state law in the action to collect the debt.â?), affirmed, 66 F.3d 342 (11th Cir. 1995), cert. denied, 516 U.S. 1048 (1996). The Act makes debt collectors liable for various â??abusive, deceptive, and unfair debt collection practicesâ? regardless of whether the debt is valid. McCartney v. First City Bank, 970 F.2d 45, 47 (5th Cir. 1992). Our analysis is further consistent with the well-settled principle that the FDCPA is a strict liability statute and that a consumer need not show intentional conduct by the debt collector to be entitled to damages. LKH: Is this what you were referring to when you said The Credit Store could not countersue for the original debt once I filed for violations. Please advise. Also, this seems to state that the debt collector cannot just claim it was an innocent accident as a defense against damages in court.
Just called home. I have a letter from the Credit Store. I can't wait to go home and see what BS they came up with. I checked my reports and they have not deleted I gave them until the 28th to delete and contact me via mail confirming the deletion. Well it's the 26th and I have a piece of mail from the Credit Store but no sign of deletion on my credit report. I'll let you guys know when I get home. Any thoughts?
What they are saying is that if a debtor files suit against a ca for FDCPA violations, the ca cannot countersue for the debt itself. One has nothing to do with the other. There is a rule in the FDCPA that says a ca can claim it was "an honest mistake". But that won't fly in your case as they committed several violations, not just one oversight.
