Last week, the CA was served summons for my small claims case seeking $1500.00 for violations of FCRA and FDCPA for a paid collection account. In today's mail, I received the following from a local attorney, now representing the CA: MOTION TO TRANSFER TO REGULAR DOCKET OF DISTRICT COURT......"Defendant states that this action is too complex for the simplified procedure of small claims court and intends to file a counterclaim against plaintiff in an amount in excess of the jurisdictional limits of the small claims court." That must be the counterclaim for "abuse of process" that the CA president mentioned in his fax to me. <grin>. Is this yet another intimidation tactic? Or could this truly become interesting? Any input for my next move would be greatly appreciated.
Well I doubt it is an intimidation tactic if they filed a motion with the court? I would check with the court to see if it has been filed yet. You will know more once you read a copy of the motion. Otherwise, nothing you can do now.
Check your jurisdiction but I do not think a counterclaim can be filed if the case was originally filed in Small Claims. If a counterclaim is filed you could file a motion to dismiss the counterclaim on that basis. Check the Laws for your State first. It probably is a scare tactic, be prepared either way and show them you will not be intimidated.
Did they give a case number? If not, this is not proper notice of your being counter sued. If they do sue you in another court, you need to be served by the sherrif, or some other service, and you will know you are being taken to court. If they taken you to court without proper notification, you can easily get any judgment vacated. Also, any motion filed with small claims court could be denied. Call and find out status. One note: you could also say "Fine, let's move it to another court". You may actually have a better chance, since you will have a better quality of judge overseeing the case. Most small claims judges are unaware of the finer details of consumer credit law, and some won't listen to prior case law for precedent. Also, you may be able to get a lawyer to represent you on a contingency if your case is strong enough. You could get lots more money for damages, too.
All of this for a paid collection? They are STUPID AS HELL. It would cost them nothing to delete. The point of collections is to get the money. I hope that you are documenting any extra money that you are paying out for the account being on your file. And get a lawyer. They'll have to pay your lawyer's fees, too. Abuse of process indeed. Burn their asses.
Kristy It sounds like the Attorney did send him a copy of the motion. Call the court and request a hearing on that motion. You will need to file a response to the motion as to why it should not be transferred as well if that is even possible. You may not be able to fight a change of venue. I don't think he is saying they have filed a countersuit yet. They were threatening to prior to court and he now thinks thas is why they filed this motion. They would more than likely move it to District Court and in their response file a counterclaim. It would all fall under this original case though so new service wouldn't be needed more than likely. Read up on your local laws so you can prepare your responses. In some jurisdictions you can automatically remove a case from Small Claims and there is nothing you can do about it. Try and learn as much as you can so they can't bully you.
Actually, just b/c the CA's attorney sent a copy of the motion doesn't mean that the copy of the motion was FILED. The motion came from the CA attorneys not from the COURT.
A copy of the motion will NEVER come from the court to one of the parties. The opposing attorney has an obligation to serve notice upon counsel. A copy of the motion sent via mail may be a sufficient method of service, providing that opposing counsel can prove that you received notice. I strongly suggest, that you get the Cause Number and check with the clerk's office to see if the motion has been filed. Also, you can check with the court coordinator of the court that will be hearing the case. I strongly recommend that you file an answer to the motion and state why this court has jurisdiction over the matter, and why it should not be transfered to another court. just opinions
Well Reshod, I don't know who small claims courts work but other courts do send copies. Regardless, that's why I told him/her to check with the court anyway to see if it has been filed. He/She doesn't have counsel.
Reshod and Vanili You guys seem to know the system, do you know if a counterclaim is possible with a change of venue? Can they remove the case to District Court and then file a counterclaim? In some jurisdictions a change of venue from Small Claims is not something you can fight. Both parties have to agree to Small Claims and if one party wants it to be in District or Federal they have that right. It all depends on the State Laws. lexman, time to do some homework and get prepared. Sounds like they want to bully you. Stand up and fire a shot right between the legs so they quickly find out they are messing with the wrong guy.
Just to be clear, the motion I received was certainly in a format that could be submitted to the court. It referenced my assigned case number and cited applicable law of this state which allows the defendant to request the case be moved from small claims to district court. I am still questioning why the CA would want to escalate this. So much more is at risk, most notably the $1500 damages limit of small claims. I wouldn't hesitate to amend my suit for substantially greater damages. All this for a 3 year old paid collection under $100! What I don't understand is how they can counterclaim for an amount greater than $1500? On what basis? This motion came under cover of a letter from the attorney which asked me to contact him if I "wished to discuss" the matter. I may very well take him up on that and see if he is open to settlement.
1. Make sure the motion was filed with the court. 2. Request a hearing on the motion. 3. Call up this ahole attorney and find out WHAT the countersuit is for. If they are attempting to countersue for the balance of the debt, they have violated the FDCPA. 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. 4. Spank this lawyer in front of the judge.
The whole purpose is intimidation. The Attorney thinks he is going to scare you into a settlement that favors them. He WANTS you to think he has a case for a countersuit so that you will settle. He wants you to doubt your case, what options does he have? You are 100% correct in thinking why escalate something like this. They haven't got a leg to stand on so they will try and intimidate you. Show them YOU WON'T BE INTIMIDATED. Get in their face and let them know you have them bent over and you will keep them bent over until YOU are good and ready to let them up. Mess with him when you talk settlement, don't settle the first phone call. Make them sweat that they are going to have to actually pursue the case. Learn the law in your State (sounds like you have started already) and let them know that you know the law so scare tactics won't work. They have screwed the pooch and now they must pay the consequences. You hold the cards, not them. Get aggressive with them and let them know that these tactics won't work, they are in trouble. Afterall, you are dealing with a Lawyer for a collection agency, his parents must be proud of how their College funds ended up being spent, this Lawyer must have been tops in his class. You get a Law degree and the best you can do is defend a collection agency? Speaks volumes about the Lawyer you are dealing with, SHOW HIM WHO HE IS DEALING WITH. Enough pep talk, now go get em!!!!!!!!!!!!!!!!!!!!!!!!!
I just verified with the court that the CA attorney did indeed FILE the motion to move this case to district court. A hearing on that motion will take place on the scheduled court date.
I also have another idea to throw into the ring... Apply for a mortgage right now... with the collection agency account showing... then... when you show up for court... casually talk with the ca atty... casually tell the lawyer that it's interesing that they want to move the issue to District... since you just applied for a mortgage and got turned down/or got unfavorable approval terms because of their erroneous collection account showing... and that really upset you... so because he bumped to US District instead of fixing the issue... and because then you got denied a mortgage because of this delay... you actually called around for an atty... after all... you likely need an atty for District Court... and you found an atty who is willing to take the case but only if it's in District court and only if it's ammended to include the mortgage denial / approval with unfavorable terms as the denial/ difference in interest goes directly to your actual damages.... and that he'd take the case based now on those large actual damages... but only on contingency... and how if you let him do that then it is in the new atty's hands to take it to court or to tell you to settle or not because then his compensation is on the line b/c of the contengency... isn't contingency great as it lets normal people with great cases get representation from someone who believes in the case...after all...attys only take contingency cases for cases they're certain they can win.... I do this type of thing in a somewhat rambling... off thinking to myself... isn't it interesting how things work out kindof deal... how you just might get a great down payment now for a house because of this... and it all wouldn't even have occurred unless this ca atty hadn't made the motion to bump it to District... as most attys don't want a small case but will take this now larger case.... isn't life interesting.... oh well... I'll have my atty call you and you two can discuss it I guess... I have to go sign papers this week retaining him.... and watch the Ca's atty's face drop... and see what he then offers... at least it'll change his mood if he thinks he's in for a real fight and a real case with actual damages and a real opponent (they scorn pro se... after all... they have a law degree and you're just an ordinary human..) jerk... and if push comes to shove you really can get David Szwak to work with a local atty and represent you.. so it's not b.s...... and that guy wins I can't remember your specifics... but do you have actual damages? if not, perhaps that's what the ca atty is counting on... no actual damages (or small actual damages) make for a perceived easier case to win??? I really think it's just an intimidation tactic... if you have actual damages and the ca trade line really has errors... you have a great shot at really getting an atty to take this... but I truly would go ahead and apply for a mortgage in the interim... higher actual damages change the stakes of what they could lose... but you HAVE to have actual damages... have to...(Read Cousins v TU appeal if you want proof)... and by the way... I'd tell / question the small claims judge about this atty trying to intimidate you... after all, you have every right to preserve your rights and file a lawsuit... and if I remember correctly... an atty when going against a pre se litigant has to tread a bit more softly on the intimidation tactics... anyone know the bar issues with an atty dealing with a pro se litigant??? anyway, bring it up b/c it might tick off the judge that he was trying to intimidate you into not filing a lawsuit in the first place.... if the judge does have discretion... he might keep it in small claims to help you... abuse of process.. my my... what do they think small claims is for anyway???? too complicated??? Does the CA atty think the small claims judge can't understand the issues or is he just trying to intimidate you into caving??? (I'd say this as an offhand comment to the small claims judge)... anyway... perhaps the other tactic will help too... good luck... it will be fun regardless for you great learning experience and kudos to you for standing up for yourself.... I agree.. get a law degree then defend collection agencies... yuck... what a waste of 3 years of law school....
