Lawsuit Anxiety Please Advise

Don't worry about it. You've got yourself covered. You might fax them a reminder that they have 3 days before you file. If you have your forms already filled out, you could attach an unfiled copy of it with the comment that "this is the complaint that will be filed on August 28th, unless my demands are met by that date". If not, then it looks like you've got the violations. Just do it. Once you've filed and had them served, you may find them calling very quickly.Don't let those jerks intimidate you.

 

If you sue them, it isn't a case of whether you owe or not. It is a case of them violating your rights under the FDCPA and FCRA. Of course, they could countersue for what they say you owe, but I bet they want to settle once they get served.

 

One site, I think it was www.edcombs.com, had some interesting thoughts on the validity of a countersuit for the debt when there are FDCPA violations alleged. Read http://www.edcombs.com/CM/News/news7.asp...

 

Here is what that site says:


SUBJECT MATTER AND PERSONAL JURISDICTION

An FDCPA suit "may be brought in any appropriate United States district court without regard to the amount in controversy", within one year of the date of violation. 15 U.S.C. §1692k(d). State courts have concurrent jurisdiction. A jury trial is available in FDCPA actions brought in federal court.

Most courts have held that FDCPA litigation is appropriately filed within the district where the consumer received the communication. Officers and managers of the debt collector who have control over the procedures complained of may also be sued there.

Filing in the district where the letter was received has been upheld even where the debt collector's letter had been forwarded to a district in which it did not do business.

The debt collector normally may not bring counterclaims for either the underlying debt, or for bad faith and harassment.

 

How do you know this debt was bought by them instead of collecting it from the OC? Also, how much is the debt for? How much was it bought for?

These questions should be asked in court. As a reminder in court, If the lawyer or judge asks you do you in fact owe this debt. Your response has to be, How would I know? They never sent me any proof or verification that I owed any debt.

 

MOST important!!! That's what the validation is all about. Remind yourself, the creditor, and mostly the judge when they try to turn things back on you, if it gets to the point. Good Luck and don't forget to post your results.

humblemarc

 

If they do show up with proof and the judge starts on you, TURN THE TABLES.

You answered your own question. All they had to do was provide validation and court would not have been necessary. We would not have had to waste your time your honor. May I suggest YOU sanction THEM for wasting the courts time.

 

Also,,

Make up your own "computer printout" totalling up all the charges for all the violations.

If the judge says a computer printout is sufficient proof of the debt say; Fine, here's my printout. Now they owe me ....


lol

 

Robin,

Another important subject is where will you file this suit? In small claims or District Court?

If you sue in District Court you can scuttle the issue in the discovery phase, they will be required to provide you all the documentation of the debt or face sanctions by the court.

Also, when you file the request for admissions, they will have to admit that they did not respond, if you ask them to directly admit that they did not respond, what are they going to say? They have to back up each and every denial with documentation.

In addition, check your states Unfair Trade and Deceptive Practices Act (or Consumer Protection Act) most of the Statutes are uniform throughout the country. If you use these laws, the damages add up quickly and there usually are not "Bona Fide error" clauses that these CA's can use as excuses for ignoring your lawful requests.

Good Luck

 

By the way, the FTC opinion letters(Wollman, I think -it's 4 something in the morning, why am I on the comp?) states that a print-out is not validation. The judge could be annoyed with them for the fact that they should have had their legal department(or lawyers) look over the situation so they could show up to court prepared. They have more resources readily available to them. There is no excuse for that.

 

The underlying debt is a seperate issue, the CA can't countersue for the amount of the debt since it has nothing to do with the issue of violating the FDCPA.

Most CA's will "forget" about this and countersue for the amount they claim you owe, if this CA does, you can seek sanctions from the court.

Why are you filing in small claims?

 

Small claims is fine, but it really limits the damages and your ability to obtain documents from the defendant to prove your case. The FDCPA has a "Bona Fide Error" clause that basically allows the CA to claim stupidity as long as they can show that they have procedures in place to ensure the violations don't happen consistently.

Also, the FDCPA limits the statutory awards to up to $1000.00 per action, not violation.

If the CA has mulitple violations you can only collect up to $1000.00 for statutory damages in addition to actual damages.

You should be prepared to fight this in District or even Federal court, the CA's and CRA's are famous for electing to have the case transferred into a more formal court. They do this in order to flood you with motions, discovery requests and so on. This is an intimidation tactic they use when people file cases without an attorney.

If you are prepared to do alot of reading on civil procedure, you can call the CA's bluff if they do this.

I'm not trying to talk you out of filing, but if you do, be prepared to fight these people all the way.

The CA's attorney's will try to intimidate you at first, don't let them scare you. Alot of these attorney's have never had any experiance other than filing small claims cases against uneducated debtors. 75% of these debtors don't even bother responding to these suits and the attorney's get default judgments. They rarely ever even have to argue their case before a judge.

If the CA sees that you are educated and know your rights beyond sending them threatening letters, they will realize the cost of defending a suit and offer to settle. Then you have them.

Also, if you were damaged by the CA's actions, you shouldn't settle for mere deletions, you should seek damages and only settle when they offer cash and deletions.

 

That clause in the FDCPA states is:

(c) A debt collector may not be held liable in any action brought under this title if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

I don't think they can prove it wasn't intentional when numerous letters have been sent and ignored, and they failed to follow even 1 rule required under the FDCPA.
If it was a one time error, fine. Not in this case.

As for damages, the FDCPA states:

(b) In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors --

(1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or

Also, there are violations of the FCRA which would tend to increase the award, if found in her favor.