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Small Claims CA has a lawyer...


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I am suing a CA that is out of state. Because of this, they have requested that an attorney appear on there behalf because they are out of state. This makes me a tiny bit more nervous because I can not have a lawyer/attorney in Small Claims. I also wanted feedback on how strong my case is thought to be because of the fact that they have a lawyer that will be in court, it may make it more difficult.

I previously sent a letter to the CA offering a settlement if the account was listed as Paid in Full by the original creditor. There was no response. I sent a second letter, this one requesting that they validate or they have an option not to validate, they can sign the enclosed proposed settlement and return it to me instead of they would so desire. In both attempts with the CA, they did not respond back in writing, but contacted me via the telephone (my mobile phone to be exact.) I filed small claims for violations of the FDCPA because they contacted me on my cell phone which costs me money. They contacted me to collect the debt while being in the validation period. They threatened to do an asset inquiry and said they would be able to garnish my wages and take my personal property. The representative said that I had to deal with her right then and there, and that they would not send me anything by mail. I have requested for any correspondence to me to be made by mail, when she asked to discuss this with me.

Due to all of these violations, (four total violations = $4000) I would like any and all of your opinions on if I would have a strong enough case to go up against a lawyer in small claims?

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Did you send them a ceas & desist letter, telling them specifically not to contact them by phone?

Even if you verbally told them, believe that you would have to follow up with a C&D letter. Be sure to take the cell phone bill to court with you highlighting their calls.

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The MAX you can collect for violations of the FDCPA is $1000, its not a per violation deal as it is with the FCRA.

"a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person in an amount equal to the sum of --

(1) any actual damage sustained by such person as a result of such failure;

(2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or

(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and

(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.

(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 "

The thing about damages may get you more than the $1000, but you have to prove damages - which can be very difficult. Damages can be any of the following:

"Statutory damages up to $1,000 for each case. This means that the violator can be charged even though there are no other damages (see below).

Attorney's fees. You can make the violator pay for your lawyer. This is big advantage; lawyers are expensive!

Actual damages including:

Stress related injuries:

Heart attack, angina, chest constrictions;

Miscarriage;

Ulcers, diabetic flare-up;

Shock;

Loss of appetite;

Crying;

Nightmares; insomnia, night sweats;

Emotional paralysis;

Inability to think or function at work;

Headaches;

Shortness of breath;

Anxiety, nervousness; fear and worry;

Hypertension (elevation of blood pressure);

Stress to children;

Irritability;

Hysteria;

Embarrassment, humiliation;

Indignation and pain and suffering. And this is just a partial list!

Monetary damages:

Payment of a debt barred by the statute of limitations;

Taking one's property unlawfully or intimidating a debtor to return property by violating the FDCPA, e.g. "If you do not return your DVD player to the store, we will bring criminal charges!"

Long distance telephone charges for phone calls to a collector who states that you must call him back.

Attorney's fees to defend a prior suit brought in violation of the FDCPA;

Damages for intentional infliction of emotional distress generally (see above).

Your attorney may use medical (psychiatric/psychological) testimony, but does not need to. Damages for emotional distress can be claimed even without medical support. This does not mean they will always be believed, of course. It is up to the judge or jury to decide if the plaintiff is telling the truth. Anyway, the plaintiff in the FDCPA lawsuit starts with a tremendous advantage, proof-wise." (from a consumer protection atty's site).

I'd say you have a pretty strong case, even if you ARE up against a lawyer. Most small claims court judges don't like lawyers in their court rooms so he/she may not get any favor at all. You just need to be VERY prepared with your case and have copies of any and all paperwork, statutes, etc. that you need to support your charges. Organization and being prepared will go a LONG way in defeating even a lawyer - and I'd make bets the lawyer they're sending does't know much about the FDCPA.

Good Luck !

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