Filed in Small Claims against CA

[Spcialt]

I recently filed against a CA in California for failing to validate a debt they’re listing on my reports. I sent three letters requesting validation, the first two they ignored. They responded to the third, which was my intent to file suit letter, by sending me a computer printout listing my name, address and a dollar amount. Obviously not viable proof of this debt.

I filed the case in Small claims last week. Yesterday I pulled my 3 reports online and discovered that this CA has duplicated this entry on my reports. The original entry was posted August of 2001. And now there’s a second entry – same amount etc – that was posted in January of this year.

I know this is further ammunition for me in court. But I wanted to know if anyone here had any other ideas of what I should do. Should I dispute the second entry??? Or just wait until I get to court? The papers will be served on them next week.

Thanks.

[IronMan]

Dispute the second entry and demand removal from CRA's. If they refuse, you could name them as Defendant's in a separate suit as well. Save the report(s) with the duplicates as evidence exhibits.

Did you file cause under Fed or Calif. stautes or both? Just curious.

In Calif. CA's have liability to both. I recommend that in your complaint brief (if you did one) that you qualify for the judge that the Small Claims jurisdication is proper for this case.

The six-week trained, Small Claims judges (or 'commissioners') have a tendancy not to know anything about the FCRA / FDCPA subject matter and will either dismiss due to improper jurisdiction (because of FDCPA is Federal or they want you kick it up to Superior Court) or will just dimiss since they are afraid to rule on it. It's probably worth your while to file limited civil in Superior Court. If your case is valid, then you'll get your court costs, by statute, as part of relief, but you've got to state them in your prayer.

If you've done your homework on the brief and your points and authorities, with good arguments, and not conclusions of law, you could be in and out in about 30 mins. which tends to pump-off the other people waiting to be heard.

Make sure to cover your butt, have the authorities that identify the underlying debt as immaterial. Also make sure that you object to ANY submission of your entire, unaltered credit report as evidence, you only need to submit the page(s) necessary to show their violations.

Under FCRA and Cal. Cred. Rept. Act (bring it with you in case) it is not a permissible purpose to submit your entire report as evidence and you reserve the right to grant specific permission to any party, to access your credit report. Is it reasonable to submit the ENTIRE title or chapter of authorities with your brief as well????

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I don't know if Calif Rules of Evidence will supercede this or not as far as writings. I know that writings have to be authenticated before you can submit secondary contents of it, but would your affirmation under oath meet that burden of authentication?? I dunno.

My suspicion is YES under CEC § 1413 "A writing may be authenticated by anyone who saw the writing made or executed, including a subscribing witness."

If a consumer pulls his/her own report on-line, then that should satisfy the burden, right? or is subscription necessary by an actual person, or the mere accessiblity to the report satisfactory?

Would CEC § 1420 & 1421 apply here also?

CALAWYER???? ANY OTHER COUNSEL HAVE THOUGHTS? The Secondary Evidence Rule applicable here (CEC § 1521).

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If you do have to submit it all, make sure that arguments outside of the framework of the items they are reporting are objected to as immaterial, the subject matter is the items which show their violative actions and not your other personal obligations. I luckily haven't had that issue raised to me before in court, so I don't know. It was one of those things that I overlooked in my case prep.

Don't get mislead down that road. Someone else did and lost their case because of it.

Good Luck!

[Edit by IronMan on Friday, February 28, 2003 @ 04:09 PM]

[Spcialt]

Thanks so much for your response.

I did not do a complaint brief. I’d planned on writing a court brief to submit prior to my court date. Question – can I submit this at anytime prior to court date or should I wait until the actual date? I have some samples, including the one you posted on this board, that I plan to use to compile my own.

Also regarding the California statutes – I only filed for violations of the federal statutes. I need to know if I can ammend my complaint to include the California ones.

What are the benefits of filing in Superior Court rather than Small Claims? I’m willing to drop the small claims and file in Superior if its truly worth my while. I understand that I’d have to find an attorney to handle that for me, but I’d be willing to do that. My only issue is that I’m suing for approx $1500 – isn’t that amount too small for Superior Court?

As for the authorities supporting my claims (juristiction, etc.) – would all of these come from the FDCPA and the Cal. Cred. Rept. Act? Or should I research outside those two areas?

Thanks for the heads up about submitting my entire credit report as evidence – I was concerned about that as I do have a couple of negative items that I’m working on as well. I was afraid that a judge would take a look at the entire report and hold it against me in this particular case even though the CA is clearly wrong.

I will dispute the second entry immediately. So far the second entry is only showing up on two of the three reports. Not sure why its not on the third… Also good to know that my online printouts of my reports can be submitted as evidence – I was wondering about that as well.

It is my hope (fingers crossed) that I’ll be able to settle with the CA prior to going to court. When I was at the courthouse I was able to check on the court’s internal websites about other cases filed against this CA which was interesting. They’ve had about 5 small claims cases filed against them in the past few years.

Thanks!!

[calawyer]

Ironman:

That you are thinking about evidence is great. This is a very complicated subject that students spend a whole year on in law school. Many lawyers spend much of their career messing it up.

In my view, evidentiary problems are one very good reason to file in small claims court rather than superior court. In small claims we are supposed to dispense with such formalities. In fact it says so right in the CCP: "the hearing and disposition of the small claims action shall be informal, the object being to dispense justice promptly, fairly, and inexpensively." CCP section 116.510.

In Superior Court, litigation is more protracted and therefore, evidentiary standards are enforced more stringently. Normally, a party would authenticate a credit report by taking a deposition of the CRA and asking that person questions about the document. In a pinch, if you wrote the CRA asking for your report and received it back in the mail from them, you might try to authenticate it using Ev. Code section 1420:

A writing may be authenticated by evidence that the writing

was received in response to a communication sent to the person who is

claimed by the proponent of the evidence to be the author of the

writing.

[smogtek]

I took on EQ in Small Claims.

You won't get much time, especially if you waste time with the "try to work it out between the two parties" and "try our court appointed mediator" games the commissioner throws at you.

Once you get in front of the commissioner, you'll get about 6-8 minutes to make your points. Then the defendant gets their say, then you get a rebuttal.

Have your supporting documents marked for both plaintiff and defendant and be ready to hand them to the bailiff when asked.

Small claims is normally about money, but take this part of the Claif Civil Code with you to show the commissioner when asking for relief.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=01001-02000&file=1785.30-1785.36

My win was small and I did not get rid the judgment that was my primary goal, but the commissioner stopped in the middle of proceedings and told EQ to remove two addresses from my report.

The commissioner gave me $100 per address and $50 costs.

[IronMan]

Thanks CALawyer! I got a good laugh at the "messing it up" part. hahaha Good point on the authentication of the writng, I'll remember that one.

Specilt- You should amend your complaint with the CA. State statutes. State statutes, as a theory of law, have to be more stringent or meet the same stringence as that of Federal Law. They cannot be less.

California statutes also impose a penalty of up to $2500.00.

Check Calif. Civ. Code sections under 1785 and 1788.

Good Luck!

[Spcialt]

One more question for you…. I will ammend my claim and add the Calif statutes. When I file the ammendment should I also include my brief or should I hold off on that until the day of court? I’ve heard that by adding the brief to the court docs gives the defendant extra time to build a better defense because it lets them know exactly what you’re arguing.

This is all great info! Thanks a lot!

[IronMan]

Oh yeah, exactly right. I forgot to mention that.

Yes, show up early to court and wait outside the locked doors in the hallway. When the courtroom doors open, find the judge's clerk / assistant and give him/her a copy of your brief and ask that it be given to the judge right away. Hopefully, the judge will have a few mins to give it a 'first blush'.

But file your simple amendment to your complaint right away. Save the brief for the 1-2 combination on court day. The more you make it look like a regular person filed, the better. Throws off their gameplan. Those panzies never heard the credo, "Never underestimate your enemy." The 'Art of War' applies to litigation.

Check you local court rules to see if there are any formal requirements for serving opposing party or the court with briefs within a certain timeframe. You don't need to piss-off the judge or get sanctioned for violating local court rules. If they say 5 days before, then send it on the 6th day prior to hearing. I'm sure there will be a weekend in that timeframe someplace. Usually, court days I try to plan are Tuesdays. You can request the date as long as it's 30 days out once you file the complaint. HEEHEEHEE. Strategy, grasshopper, strategy. If you have multiples, you can ask to have them heard the same day as well. Nothing like rackin' them up, and knockin' them down!

Anyway.....

If they show, an you converse with opposing counsel, be polite. Some attys will try to be friendly to you somehow and get you in a comfort-zone. No need to be a jerk. Just keep things matter-of-factly and neutral. No emotions. This is poker, game-face on.

You know what's right and wrong. You know (and they do too) the facts are that they violated the FCRA and damaged you. Remember to stick to your facts and all relevant things peraining to it. The other side's job is to misguide you and nail you on petty crap to divert the issue. Don't get caught in the litigator's bullsheot trap!! Be fore-warned and be fore-armed!

If some Joe Schmucko atty shows up to argue for CA or CA atty (usually the case 99% of the time if court is too far) then you'll have an excellent chance of success. These attys are usually local yokels from non-recognized law school (UNLIKE Harvard, USC, Loyola) and can't get the high $$$ employment with any top gun firms. They do the grunt work for $50-100 an appearance and spend all-day in court appearing as much as possible.

I'm not saying that all attys are bad from schools other than the top-rated. My buddy graduated from a CalBar, midrate school. He started his own practice 3 years ago and is kicking butt now. In another 3-4 years, he should be crusin' along.

From what I've seen with my arse in the grarse, the Schmuckos seem to be the case, which is probably why I've been so successful. I dunno, perhaps my attn to detail and proper previous planning has won the day too.

Good luck and may the farse be with you!