Small Claims Court - wrong court?

I would wait until they contact you, it is common practice atleast from what I've gathered for the attorney to sometimes contact you days before all the way to the day before the court date.

Most companies upon properly being served will notify the court of their intentions to defend the action and request a continuance.

Have you called the court and asked if the defendant has notifed them of their intent to defend?

I would let it ride out and if they don't show up, you will have a default judgement then.

I would think if they were properly served you can bet they will contact you, just be patient and let them come to you...you don't want to come off as being desperate or uneasy about your case.

Tac

 

Re: Re: Small Claims Court - wrong court?

This too shall pass.

 

Re: Re: Small Claims Court - wrong court?

Dmianlr,

Great advice Edoggie! This will give the judge a heads up before the case is actually in front of him/her. Remember the judge always has the option to give a delayed opinion, giving them private time in chambers to review the case law and then render their decision. This is very new territory to any judge in Small Claims court. You don't want to back them into a corner or cause them any embarasement - remember they have all of the power here; you want them on your side!

Great advice again. The best way to present the pertinent case law is to mark it as an exibit and enter it into evidence early in your presentation. It will be the cornerstone of laying out your case. Use it to build on, one brick at a time, until you have the defendant encapsulated with no way to escape.

Entered as evidence with the pertinent sections highlighted gives the judge something to look at while you are presenting the rest of your case, point by point. It also forces them to render a judgement based on the points of the law, rather than upon their own opinion.

Remember that in Small Claims Court you are not expected to present your case as well as an experienced attorney, but you are expected to have researched the law and be knowledgeable about what you are presenting. Asking for something in a judgement that the law does not clearly entitle you to is a good way to loose your entire case. Do your homework before you ever go to court. Be sure to have copies of all written documents to introduce into evidence. Show the judge that you are a reasonable man and have made several attempts to get the defendant to rectify the situation and the defendant left you no choice but to engage this court to help you.

Also, you would be well advised to spend a few hours observing how cases are presented in small claims court. You will see a pattern â?? those well prepared and able to present an effective case are most often the winners. Those who just show up and think the judge is going to make their case will often loose, even if they are right.

Tac has given you excellent advice here. Do not write them a settlement letter or tip your hand by seeming anxious to settle. Rather, take 3 or 4 big deep breaths and slowly release the anxiety you are experiencing. Time is on your side now! Donâ??t be in a hurry. Let them sweat for a while nowâ?¦.. Use this time to prepare your case. Get all your ducks in a row before you ever charge for the water.

Their attorney is almost certain to contact you shortly before the court date. They may even try to intimidate you into dropping the suit. Remember, Small Claims Court does not allow an attorney to act in behalf of a plaintiff, but it does allow an attorney to represent the defendant. So, if you do end up in court, you will probably be facing the same attorney.

The best strategy is to listen very closely to what they might propose as a settlement, and then tell them you will â??take it under advisement and let you knowâ? â?? you have just used one of their best tactics against them. If they even think your are anxious to settle â?? you have lost out. Make them beg a little. 

Carefully think over their settlement proposal and then call the attorney back with your counterproposal. Be reasonable and they will likely be willing to settle. I believe you filed suit for $5,000 because thatâ??s the maximum allowable in SCC in your state. If your were to prevail, the judge can only award the amount that the law states â?? in your case $4,000 if I understand right - $1,000 for each clear violation, plus the court filing fee. If you are willing to settle for ½ to 2/3 of that amount, your counter proposal will probably seem reasonable and they may accept it just to avoid the cost of appearing and getting a possible judgement on their record.

Make sure to get any agreement in writing, including the fact that they agree upon acceptance to delete the challenged entries at all 3 bureaus and further agree to never validate or reinsert the entry(s). In return you will agree to not sue them or hold them for any damages from their prior entry. If you donâ??t feel comfortable writing the settlement agreement yourself, you can often find an attorney that will do it for you very reasonably. Just make sure there are no escape clauses or loop-holes for them to weasel out of.

All that being said, GOOD LUCK to you in settling with them. Be sure to let us know how it works out for you.

BkinUT
"Been there, done that, KICKED THEIR BUTT!"

 

Re: Re: Small Claims Court - wrong court?

I have a question about this general procedure. I just started the validation process, so I'm a long way off from suing, but it doesn't hurt to be prepared early.

When filling out the Small Claims documents, is it standard to reference the sections of the FDCPA/FCRA that were violated in the inital field where one fills out the amount you're asking for? Or do you save referencing exact sections, etc. to present with your evidence?

Is it common to include violations like "defamation of character" or something of the sort to bump up the $$$ being sued for? If so, do you reference a state civil statute for that one?

Just trying to get my ducks in a row early! I've learned so much from reading this board, and I'm starting to feel empowered. Its a GREAT feeling!

 

Re: Re: Small Claims Court - wrong court?

Kismet,
No. You can not sue for defamation of character in small claims court. Procedures and rules of evidence are more relaxed in small claims. These are generally courts of convenience for small property torts.

damianlr,
I see a big potential problem--jurisdiction. In many small claims courts you cannot sue a foreign (out-of-state) corporation with more than a certain number of shareholders. They could have the suit dismissed (probably without prejudice) or could ask that it be moved to U.S. circuit court.. Also, lawyers are not allowed in most small claims courts. Should they retain counsel, your case will be removed to the next higher court (or possibly U.S. court should they file a motion based on diversity). Warning--defending in U.S. court is expensive and you will can only re-coup attorney's fees if you can prove actual damages. Otherwise, you are limited to statutory damages. It is possible that you could "win" but lose financially in a big way.

The good news is that most CA's are blathering idiots who are really gun shy about litigation. They will likely try to settle before trial and won't call your bluff.

 

Re: Re: Small Claims Court - wrong court?

I believe that what you propose is a very serious mistake. In part at least. I believe that one should never write the contract. I believe that one should even let them make the first proposal as to what they would like the agreement to consist of. Once you have their proposal in hand then you can counter propose or make demands for additions basically leaving their proposal intact and then demand that they write the completed agreement into a contract which they must then hand sign and return to you for your acceptance or rejection.

Not only does that put the cost burden on them but if it ever had to go to court they would be in an awfully hard position if they broke the contract they wrote.

 

Re: Re: Small Claims Court - wrong court?

Well, I'm no legal expert by any stretch of the imagination but I tend to doubt that defamation would be a teneble grounds for suit in the first place. Here is why.

Defamation is the act of making untrue statements about another which damages his/her reputation. If the defamatory statement is printed or broadcast over the media it is libel and, if only oral, it is slander. Damages for slander may be limited to actual (special) damages unless there is malice. Most states provide for a demand for a printed retraction of defamation and only allow a lawsuit if there is no such admission of error.

In my opinion it would be very difficult to maintain a suit on grounds of defamation since in most cases under consideration here there is never a case where such statements are aired in print or broadcast media and in all cases one would have to prove that the statements made were untrue and made with malice aforethought.

While we might tend to want to believe those things are true, it is usually not so and if all elements of the charge are not true the case would probably fail.

Just my thinking which is by no means a definitive legal opinion.

 

Re: Re: Small Claims Court - wrong court?

Bill, you are 100% correct. I could not agree with you more.

Damianlr,
Call the office where you filed your suit and ask what the guidelines are for suing out-of-state corporations. Virtually every state has their own individual guidelines. What worked in a California or Minnesota small claims court may not work in a Texas small claims forum.

To answer your earlier question, jurisdiction is dictated by the state(s) of residency of defendant(s) and plaintiff(s), known as "diversity", and the dollar amount in dispute. While the plaintiff can bring an action in one court, the defendant can have the suit removed to another court. Only the defendant can ask to have the case removed to another court.

 

Re: Re: Small Claims Court - wrong court?

Judging from the tone of your posts I would not count on your being fine. Small claims is pretty easy until they start fighting you back. Then its a different story. And once you start talking about higher courts you had best know what you are doing. When you get to higher courts you had best believe they know what they are doing and if you aren't better prepared and more knowledgeable then they are you just might be in for an awfully rough time of it. We might make filing lawsuits on people sound like some easy thing to do but it isn't.

Lawyers can smell an inexperienced pro se a mile away and they will pull every trick in the book on them. It can and most likely will get real nasty in there.

Those 7 austronauts hoped the shuttle would get them home safe and sound too, didn't they? But they lacked critical knowledge and got killed because they didn't have it. Figuratively speaking at least it can be the same in court. If you don't have the knowledge you can get "killed" when it "blows up" on you. If you haven't spent tons of time doing your home work then you had best either go find a lawyer or forget it.

 

Re: Re: Small Claims Court - wrong court?

Ok so now you are all ready to go, eh? Do you plan to do discovery on them? If not why not? And if so are you also prepared to play on a playground where the name of the game is "down and dirty?"

Discovery is where a whole lot of cases are either won or lost. It can be so important that there are attorneys out there who almost never go to court but work with discovery almost exclusively. They know it like the back of their hand and even write books on that subject alone.

The main points of a case are often built in discovery and they use discovery to try to get the other side to admit their errors and then when they go to court they have already won the case or as nearly won as possible.

A good discovery lawyer will huff and puff and bluff you until you are so scared you wish you had brought diapers instead of shorts and a few spare rolls of TP as well.

I've even seen them bring two good discovery lawyers to a hearing. One is the bad boy who jumps all over the other you and the second one keeps jumping on him telling him to take it easy on you and to lighten up and his job is to make you think he is on your side and he is the nice guy. Then they pull a switcheroo on you and the bad guy shuts up and the nice guy starts asking the questions. If that should happen just remember that it's a cops & robbers type game. One cop is the bully with the rubber hose and the other guy is all that is keeping the robber from getting the crap beat out of him so he better fess up before the nice guy turns the bad guy loose on him.

 

Re: Re: Small Claims Court - wrong court?

Daminalr,
After reading your last post, I think I have a better understanding of your case. You have actual damages and the account was never yours. If they are smart, they will settle out of court. Because you have "actual damages" that are provable--they will be stuck with your legal bill should this be removed to a higher court.

Should they not seek a settlement, Citibank will seek a trial in state court. You will probably need a lawyer for this.

Take my word, there is no way in h*ll Citibank is going to ask for a removal to federal court. Should they do this, they are stuck with expensive legal bills for both sides and the possibility of punitive damages. Attorney's fees would be the least of their worries. You could request a jury trial and would be free to ask for virtually unlimited punitive damages.

There was recently a case in Arkansas where a plaintiff sued his bank over their gross mishandling of an incident involving his checks being stolen. Though the plaintiff was only seeking $75K, the jury returned with a $9 million punitive damage verdict against the mega-bank. Local juries are often very sympathetic to people who have been victimized by large companies.

If you can prove all the elements of your case as you have stated in your post, your evidence is weaponized-plutonium compared to any defense they may have. Personally, I think your best option is a federal venue.

Tough question time. When you were turned down for credit, were there any other derogatory factors (aside from the erroneous Citibank account) listed for your denial?

Also, pull and print full copies of each CRA's report that will show inquiries (both hard and soft). After being contacted by you, did Citibank pull any inquiries from any CRA's?