Hey all: I'm drafting my complaint against BofA and their collection agency they sent after me. I'm alleging violations of the FCRA, the FDCPA, and the corresponding California State statues. The debt is not beyond SOL (charge-off @1400). My question is, am I opening myself up to attorney fee claims by the Defendants if I mention the state Statutes in the lawsuit? Just in case I loose, (even though I don't expect it to go to trial), I don't want to have set myself up for any worse of a fall as opposed to NOT mentioning the state Statutes. This debt is really killing me. I already requested validation and all that, and all has been ignored (thus grounds for the suit). I have a lot of violations on them. The only thing is, as time goes on, the damn debt keeps getting bigger (interest and collection fees). So, I'm trying to get this done in a hurry. Any old timers, or newbies, with helpful advice, please chime in. Thanks in advance.
If you sue under California Fair Debt Collection Practices, yes you could be liable for some costs. If you read, this statute clearly says prevailing party, you lose, you might be paying some of their bills, under an FDCPA claim (California's version). However, if you sue under California's version of FCRA, sections 1786 -1786.6, the judge would have to believe you filed your claim in bad faith to assess attorney/court costs against. Federal statutes make the same claim. Big difference between prevailing party and bad faith. There is no mention of any costs for prevailing parties. I read a case in California law where the plaintiff appealed the costs, and the appelate court upheld the lowers court decision. Basically saying it was the plaintiff's choice to file in state court, and if he/she did not want to risk paying defendants costs if they lost the case, then they should have filed in federal. I think the statute has been amended since then, but it still does mention prevailing party and action to enforce liability, whether this applies to a defense, can't say for sure. If you wanted to be safe, you could file in state court, under Calif.'s FCRA version, and not risk being assessed costs any costs. OR, you might be able to file in federal court, adding a state claim to your complaint. File a federal claim for FDCPA (where you have to show bad faith for attorney fees) and a state claim for FCRA. That way, you wouldn't be filing a complaint under a statute that holds you accountable for a costs if you lose, unless the judge believed you filed in bad faith.
