Who Do I Sue..and Collect??

Ive noticed that there doesnt seem to be any post or info about WHO does a consumer sue for violations, how they serve the proper party, and what happens after they win.

Ill be posting some info about this in several threads.

It will be based on law and my personal experiences.

If filed about 20 suits, settled on a few, and won about 15 in court. This is not to be bragging, just to establish that I actually may know what I am talking about

 

Ok, so you have violations. I am assuming you have verified these are valid violations

Now, you want to sue. WHERE do you file?

-SMALL CLAIMS COURT:

Small claims court is for "small-money only" cases. Generally, attornies are not allowed to appear on behalf of either party in small claims court.


ONE EXCEPTION to this is if you are suing a collection agency and they have an attorney ON STAFF AS AN EMPLOYEE, they CAN appear in court to represent they employer.

I have encountered this a few times, but quickly realized WHY they work for a collection agency and are not in private practice

Another facet of small claims court is the relative "informal" nature of the proceedings. Typically, the judge will call the case and ask the moving party (plaintiff) to "state your case", in other words, why are you there.

There is no need for "objections" , hearsay or evidence rules etc. Pretty much everything (within reason)can be admitted into the hearing.

EVIDENCE- any evidence prcented in small claims court is shown to the other party before the judge sees it. The court deputy or bailiff will facilitate this.

The judge will typically review the evidence and hand it back to the party who provided it. Rarely does evidence get "lodged" into the case file in small claims court.

***** Any question on whether collection cases can be filed in small claims court can be answered if we look at FDCPA 813 (9) and FCRA 618. A question that comes up is what is the proper jurisdiction. Well, a consumer's credit report can be concidered "personal property", therefore the "damage" occured wherever you are.

"(d) An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs."

IT HAS TO BE FILED WITHIN ONE YEAR THOUGH.


-FEDERAL COURT:

This is a whole different animal. This is a FORMAL setting and all federal rules of evidence apply.

The most important thing is that attornies are allowed, and WILL appear.

Federal Court also allows for attorney's fees, which can really SCREW a consumer if they have brought a suit in bad faith (AKA NOT having valid violations)

I would recommend an attorney if you are comtemplating federal court.

 

Ok, so you have violations. I am assuming you have verified these are valid violations

Now, you want to sue. WHERE do you file?

-SMALL CLAIMS COURT:

Small claims court is for "small-money only" cases. Generally, attornies are not allowed to appear on behalf of either party in small claims court.

ONE EXCEPTION to this is if you are suing a collection agency and they have an attorney ON STAFF AS AN EMPLOYEE, they CAN appear in court to represent they employer.

I have encountered this a few times, but quickly realized WHY they work for a collection agency and are not in private practice

Another facet of small claims court is the relative "informal" nature of the proceedings. Typically, the judge will call the case and ask the moving party (plaintiff) to "state your case", in other words, why are you there.

There is no need for "objections" , hearsay or evidence rules etc. Pretty much everything (within reason)can be admitted into the hearing.

EVIDENCE- any evidence prcented in small claims court is shown to the other party before the judge sees it. The court deputy or bailiff will facilitate this.

The judge will typically review the evidence and hand it back to the party who provided it. Rarely does evidence get "lodged" into the case file in small claims court.

***** Any question on whether collection cases can be filed in small claims court can be answered if we look at FDCPA 813 (9) and FCRA 618

"(d) An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs."

IT HAS TO BE FILED WITHIN ONE YEAR THOUGH.


-FEDERAL COURT:

This is a whole different animal. This is a FORMAL setting and all federal rules of evidence apply.

The most important thing is that attornies are allowed, and WILL appear.

Federal Court also allows for attorney's fees, which can really SCREW a consumer if they have brought a suit in bad faith (AKA NOT having valid violations)

I would recommend an attorney if you are comtemplating federal court.

 

l

 

damn server lol

So, you decided WHAT court you want to file in, now you want to file the case.

In small claims court, you can sue for the federal statues as well as any state law which governs consumer debt collection.

In federal court, you can sue for the federal statutes, state law debt collection statues, as well as "tort" laws. The tort laws involve such "theories" as invation of privacy, breach of contract, slander, defamation etc etc.

So lets say you feel pretty confident about your case, but dont want to do battle with a lawyer in federal court (good choice)

You can simply go down to your local court house and pick up a "small claims packet", which will typically include a "summons and complaint", or sometimes called a "demand" or "complaint" etc etc. These may be available on the internet as well.

In order to file the case, you will need to identify the other party.

CORPORATIONS:

If this is a corporation, then you need to find out their "agent of process of service". This is the person who all legal correspondace must go in order or there to be valid "Service"

The agent for process of service is usually listed with the Secretary of State, division of corporations and limited liability corporations. This too can be foind on the internet.

Sometimes the agent for process of service is an "attornies service." The companies forward the paperwork to the proper person. These attorney services are usually in every state, therefore taking away any arguement about proper "venue."

EMPLOYEES:

Yes, you can (and should) file against an individual employee. THIS IS FUN!

How do you find out who the employee is though?

Well, this takes some time but it can be done

My technique is to call the collection agency, or whoever you are suing, and ask to talk to the person you want to sue (making sure they have violated the law of course). When they get on the phone, let them think they are in charge. Play nice and "give in."

Try to get to know there name, first name is FINE. Once you get their name, lets just say Jason, you can add "Jason Doe" as a co-defendant.

MANAGEMENT / SUPERVISORS:

The above technique can be used for this too. Remember, the supervisor CAN be liable for the violations of their employees ESPECIALLY if you have tried to tell them about their employees "bad behavior"

 

Ok, now you have listed the defendants, and filed the case.

Now how do you serve them?

Remember, personal service of the summons CANNOT BE DONE BY A PARTY TO THE ACTION, and has to be done by someone over 18 (usually)

If it is a corporation, you should serve the "agent for process of service" as mentioned above.

How about an employee? Well, you know where they work so have them served at work. Effective and embarassing Most the time the server just needs to "leave it with the person who seems to be in charge", typically the front desk clerk.

Personally, I like serving them at home The internet is a GREAT way to find people.

BUT, what happens if you have NO INFO on the employee and really want to sue them?

Well, once you file a case, IT IS OPEN SEASON ON THEIR RECORDS! Once a case is filed, even if NOT AGAINST THE COMPANY YOU ARE SUING, you can subpoena records for the court date. Typically called a "subpoena duces tecum." THIS IS AN ORDER FROM THE COURT FOR THE RECORDS.

Depending on the state you are in, you can subpoena the records, or have the "custodian of records" appear to testify ABOUT the reocrds. If you choose to have someone appear, YOU MAY BE REQUIRED TO PAY THEIR EXPENSES.

These records can include all the account details, which include the employees name, or at least their initials. YOU CAN ASK FOR ALMOST ANY RECORDS. SOME TYPES OF RECORDS CAN BE HARDER TO GET DEPENDING ON YOUR STATE'S LAWS.

MOST COLLECTION AGENCIES WILL BE VERY HESITANT TO GIVE RECORDS UP, ASK FOR IT THOUGH. Makes the judge REALLY MAD when they violate the court's order to send the records.

Once they mail the records (make sure you request a copy to be mailed to you also) you can look and see the employees name. Add this to "an amended complaint", or just file another case and have it heard "in conjunction" with the original case.

If the employees intials are the only thing listed, BUT you have their first name, simply call the collectio agency and say you were "so happy" with the leval of service "Jason" provided you in a difficult time in your life, you wanted to send him a thank you letter commending him for his great work. Tell the person that you wanted to keep it a secret from "Jason" until he received the letter, but you needed to get his last name so the "gift" doesnt go to the wrong "Jason". You would not beleive how many times this has worked for me LOL

Then you can serve them at work or find them at home

If all else fails, when the company shows up for court, ask them who the employee was

 

Types of service:

There are several types of service depending what state you are in.


1. Personal Service: Someone-not you-must personally give the claim to the defendant. The defendant doesn't have to actually take the claim. It can be dropped in front of them. Remember: Do not serve fee waiver forms. These forms are only for the court.

2. Service by Mail: The court clerk sends a copy of the claim to the defendant. The defendant must sign and return a receipt to the clerk. There is a fee for this type of service.

3. Substituted Service: Someone over 18-not you-must leave a copy of the claim with someone in charge at the defendant's office or at least 18 at the defendant's home. Get the person's name. Tell that person "this is a small claims lawsuit against [name of defendant]; please be sure to give it to [name of defendant]."Then the person who served your claim must mail a copy of the claim to the defendant at the same place and complete a proof of service form. The proof of service form must be filed with the small claims clerk.

If you only have a private post office box address for the defendant, your claim can be left with someone over 18 in charge of the post office boxes. Get the person's name. Tell that person "this is a small claims lawsuit against [name of defendant]; please be sure to give it to [name of defendant]." Then the person who served your claim must mail a copy of the claim to the defendant at the private post office box address. You cannot do this with a United States Post Office box.

The copy of your claim must be mailed to the defendant

CHECK YOU STATES RULES

MAKE SURE YOU FILE YOU PROOF OF SERVICE AS WELL

 

OK, so you've served everyone, gone to court, and you prevailed.

How do you collect?

Hopefully, they just write you a check and its all over.

BUT, if they dont, and just kinda ignore you, here are a few ways you can collect

-Attached bank accounts

This is fun cause they usually have no problem doing it to a consumer. You would be suprised to know how easy it is to get the bank account number for the collection agency. Simply call and say you want to send an electronic payment, and you dont have a checking account. Say your bank told you that they needed the collection agency's "ABA Routing number and account number."

Most wont even hesitate to give this right over the phone. Use this to apply for a "Writ" to attach the account and have to Sheriff serve their bank. IF IT IS A LARGE BANK, THEY CAN SERVE THE NEAREST BRANCH.

-Place a "Keeper" in their business:

THIS IS MY PERSONAL FAVORITE!!

A "keeper" is a private citizen who is places into the defendant's place of business by the Sheriff, and actually TAKES ALL ACCOUNT RECEIVABLES until your judgment is satisfied! THE DEFENDANT CANNOT REFURE TO ALLOW THE KEEPER LOL

-Till Tap:

Similar to the "keeper", a Sheriff will go to the place of business and actually OPEN THE CASH REGISTER OR SAFE AND TAKE $$$$ UP TO THE AMOUNT OF YOUR JUDGMENT!!! Another fun one lol

-Garnish Wages:

IF you sued an employee, you already know where they work!

-Credit Reporting:

Another favorite! You can have your judgement reported on the credit report of the employee you sued! WHAT AN IRONIC TWIST HUH?

There are a lot of services that will report the judgment for a small fee.


If the defendant is in another state, you can have the judgment "domesticated" and theefore collected in their state.

Contact your local court house and ask about the "Uniform Enforcement of Foreign Judgments Act"

 

"question in regards to small claims suits did I understand you right that an Attorney who is an employee of a collection can represent the company?"

-Yes. IF THEY ARE A REGULAR EMPLOYEE and DO NOT ONLY REPRESENT THEM IN COURT CASES.

" and how can you prove or disapprove that he is infact an employee of the CA?"

-Ask the court to conduct a "voir dire" or examination of his represented status in the company

"wouldnt the judge see this as a conflict of interest being the fact that he is an attorney and he can not represent a party to the cause in small claims?"

-A party to a small claims case cannot be REPRESENTED by an attorney. HOWEVER, any "authorized agent" can appear to represent them in court, INCLUDING A REGULAR EMPLOYEE WHO HAPPENS TO ALSO BE LICENESED TO PRACTICE LAW

"Im worried that my upcoming suit with a CA may try to pull this by filing a notice with the court that he may appear on behalf of the party and give a false name or something."

-At the hearing, BRING THIS UP and make the judge inquire as to the persons "status" in the company. IF THEY ONLY APPEAR IN COURT CASES AND ARE NOT REGULAR EMPLOYEES, STATE YOUR OBJECTION.

-Additionally, I have experiences this on 3 occassions. Keep in mind that any "good" attorney WOULD NOT BE WORKING AS A REGULAR EMPLOYEE OF A COLLECTION AGENCY

 

bump for recent "suers"

 

Re: Re: Who Do I Sue..and Collect??

-I think it would be a huge conflict if interest for an employee of a collection agency to represent their client (the original creditor) in court.

-Additionally, the employee would be acting as an attorney in court, which isnt allowed usually in small claims

 

LOL..


Yeah, I am pretty sure. BUT IT DOES DEPEND ON THE COURT RULES.

AND, I DIDNT INCLUDE INFO ABOUT APPEAL. IN SMALL CLAIMS COURT, IF THE DEFENDENT APPEALS A DECISION, THE APPEAL IS HEARD, AN ATTORNEY CAN THEN BE THERE

BUT CHECK YOUR LOCAL RULES

The info in the link is from a district court, who presumabley, has the authority to remand a case to a "lower court".

 

Depends on the state and county you are in.

In CA where I am, there is Superior Court and Municipal Court. And then there is Consolidated Courts which is both Superior and Muni Courts LOL

Small claims is generally the "lowest" court. Althought it may be in the same court room a Superior Court case.

Just to add to the confusion

I would suggest a trip to the local court house, or online trip, and pick the brains of the law librarian.