I'm about ready to file small claims, but...

[bidamia]

Hello Everyone,

I have enjoyed reading these posts for quite some time now and have decided it's my "turn" to add to the discussion. But first some background:

I have several CA on my credit report that I'd like to get removed. I have sent my DV letters and received the notorious "Affadavit" from Sherman stating in essence, "Yes, we purchased this account" (Big deal! Prove it's mine!!!) Sherman will be taken to court, but I want to gain some experience by taking Mercantile Adjustment Bureau (MAB) to court first.

I sent MAB a DV on 1/11/05, CMRRR and received no response from them. I have also followed up w/ the "you failed to validate, you are liable for continued collection..." letter. Meanwhile I disputed the account w/ the 2 CBs they report to and both came back verified. Also, MAB sent me back two letters (one for each CB I assume) stating that they received notification that i generally dispute the account and asking ME to provide THEM with details as to why (AS IF!!!). I have, on their own letter head, proof that they verified the debts to the CBs (they should be more careful) and also the usual clause of "this is an attempt to collect a debt..." Right there I have proof that they are attemping to collect a debt, all while they have not validated it to me. The Statement of Claim is all written up and I even had a paralegal friend of mine look it over. He said it was great!

However, my question is the following: Having read the FDCPA myself, my intrepretation of Section 809( is that the CA only needs to validate the debt w/in the 30-day limit of the MM. Is this the case? I certainly did NOT make the 30-day limit, and in fact don't even know if I received a MM since the date the account was place for collection was a year ago.

I would ask my paralegal friend this but he's not very familiar w/ the FDCPA and thought someone here may have experience with this that they could share. I don't really want to spend the $255 on small claims only to be wrong and have a judgement placed against me.

Also, as a quick aside, do the CA countersue?

Sorry for the long post, but I'm a wordy person Any help is GREATLY appreciated!

Added: Should I respond to their "why are you disputing this" this with a "duh, you haven't validated" letter or was that taken care of in my second letter mentioned above? (P.S. I should just submit this post now before I keep adding to it! lol)

-Bidamia (a.k.a. Dave)

[divemedic]

The cool part is that there is no mention of a 30 day limit in the FLorida Statute. See ss559.72

[bidamia]

That's kewl! I didn't know that. What section of the Statute should I bring to small claims? (I was told the councilperson probably won't be familiar with the law and I should bring it with me.) Also, do the Florida statues apply here even if I've moved to FL w/in the last couple of years and the OC account may have been opened in NY?

ADDED: I think 559.72(6) is what you were referrig to:

In collecting consumer debts, no person shall:...

(6) Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made prior to such reasonable dispute having been asserted and written notice is received from the debtor that any part of the debt is disputed and if such dispute is reasonable, the person who made the original disclosure shall reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding 90 days;

[gdouglaslee]

I sent MAB a DV on 1/11/05, CMRRR and received no response from them. I have also followed up w/ the "you failed to validate, you are liable for continued collection..." letter. Meanwhile I disputed the account w/ the 2 CBs they report to and both came back verified. Also, MAB sent me back two letters (one for each CB I assume) stating that they received notification that i generally dispute the account and asking ME to provide THEM with details as to why (AS IF!!!). I have, on their own letter head, proof that they verified the debts to the CBs (they should be more careful) and also the usual clause of "this is an attempt to collect a debt..." Right there I have proof that they are attemping to collect a debt, all while they have not validated it to me. The Statement of Claim is all written up and I even had a paralegal friend of mine look it over. He said it was great!

However, my question is the following: Having read the FDCPA myself, my intrepretation of Section 809( is that the CA only needs to validate the debt w/in the 30-day limit of the MM. Is this the case? I certainly did NOT make the 30-day limit, and in fact don't even know if I received a MM since the date the account was place for collection was a year ago.

I would ask my paralegal friend this but he's not very familiar w/ the FDCPA and thought someone here may have experience with this that they could share. I don't really want to spend the $255 on small claims only to be wrong and have a judgement placed against me.

Also, as a quick aside, do the CA countersue?

If you are asking questions like these, then you are not ready for court and you are certainly not ready for small claims court because you couldn't handle a simple issue like. "This is a federal statue we don't have jurisdiction," and that's something you hear a lot in small claims. Even worse than that, a fast talking attorney will get your claim dismissed with prejudice. Federal courts offer the greatest protection for pro se plaintiffs.

The level of service you will get in federal court doesn't even compare with small claims. Federal court is also great because 99 times out of 100 you never appear before a judge. Everything is done in writing and that's a plus for people who have motor mouths and don't know when to shut their festering gob, and the meek, and those who have low self-esteem, and those who just plain aren't eloquent speakers.

More importantly, in federal court you aren't forced to answer a question in 30 seconds or lose. Since everything is done in writing by mail, you have time to research, ask questions, solicit opinions and advice and bounce ideas off of others.

So, why would you spend $255 on small claims when you can spend $250 on federal? Plus if you screw up they take care of it. If you claim the CA violated 1692e(2) and it was actually 1692e(10), your case doesn't get thrown out. In small claims it most likely would. Federal court judges also have huge staffs consisting of secretaries, law clerks and paralegals to research case law and write briefs for the judge. A small claims court judge (who may actually be a referee appointed because he was a political hack) has nothing and knows nothing and unless you bring case law with you, well, you're taking a big risk. Think about it.

Counter-claims on the debt by the CA are not complusory, at least not in federal court, but you might have a hard time convincing a state court judge otherwise.

[bidamia]

Ok, I guess the question is this... If Federal court is so much better, then why are there no instructions on CreditInfoCenter.com on how to try your case there? Do I need to hire a lawyer to do that? How do I find the federal court? Basically, what is the process? Also, if I try it in federal court doesn't that mean that since I did not reply within the 30 days of receiving the MM the CA doesn't really need to validate my debt?

[KentWA]

Actually there is case law that says the CA may not file a counter suit to your FDCPA claims. This is because the FDCPA claims are not related to the debt, only to their actions.

[gdouglaslee]

Actually there is case law that says the CA may not file a counter suit to your FDCPA claims. This is because the FDCPA claims are not related to the debt, only to their actions.

Yes, I know. A federal court judge would readily understand that, but a small claims court judge might not, especially since there are only 4 cases, not 50. Some small claims court judges might say since the case law is from a federal court in another state it does not apply.

Each state has its own set of rules and operates differently. The small claims court judge you appear before may have no legal experience and not even be an attorney. He got appointed by the county commissioners because he helped with their election campaign. That's why you hear things like "this is a federal law we don't have jurisdiction." Here's another good small claims court case I saw recently: "This belongs in traffic court." What do you say to that? That's an indication that you should voluntarily dismiss your claim and re-file in federal.

Some states have their own version of debt collections practices acts. In those states, yeah, you stand a much better chance. California is one. As long as the defendant is located in California you can file in small claims and usually win or settle. A few other state you can too. But the majority of states do not have their own version of the FDCPA so you are much better off filing in federal.

Ok, I guess the question is this... If Federal court is so much better, then why are there no instructions on CreditInfoCenter.com on how to try your case there?

I do not know. If I were to guess I would say it is because each federal court has its own website from which you can down load the pro se guide and learn the process.

Do I need to hire a lawyer to do that?

No.

The FTC intended the FDCPA to be primarily enforced by consumers acting as private attorneys general. That is not my opinion, that is what the FTC, US Congress and courts have said.

How do I find the federal court?

Federal courts are apportioned based on population. Not suprisingly, you will find them in large urban centers.

So what happens if you live near two large urban centers? As an example, for someone living in Butler County, Ohio, there is a federal court 45 minutes away in Dayton and 45 minutes away in Cincinnati. That person would have to call one of the courts to find out.

Basically, what is the process?

Incredibly simple, and all outlined in your court's pro se guide. Your court may even have a pro se clerk who deals with pro se plantiffs and defendants.

You file a written complaint.

The defendant is served. The defendant has 20 days to answer. If the defendant fails to answer, you win by default.

Defendants often wait until the very last day to answer. Because rule 56 says you can file a motion for summary judgment 20 days after the action is commenced, if you have any evidenec you typically file a motion for summary judgment as soon as they answer assuming it has been at least 20 days since you filed. They have 10 days to respond. 70% of all cases are settled right here.

If you cannot file a motion for summary judgment, then by phone, fax, or e-mail you work out a trial schedule with opposing counsel to answer these questions:

When is the last day to add plaintiff/defendants to the suit?

When will discovery start?

How much time for discovery?

How many interrogatories?

How many admissions?

When is the trial date?

If you agree on the issues, you write it up and file it with the court. If not, then you will have to appear at a conference which you must schedule.

It will be in a conference room, usually with the magistrate. You say you need 35 interrogatories, opposing counsel says 25, magistrate says 35, next issue. You say 30 days for discovery, opposing counsel says 6 months, magistrate says 60 days, next issue. You say trial in 6 months, opposing councel says 24 months, magistrate says 6 months, next issue.

Usually the magistrate will leave the room and invite you to settle. A lot of cases are settled here. If not, then follow your trial schedule and mail out your discovery when you are supposed to send it.

Also, if I try it in federal court doesn't that mean that since I did not reply within the 30 days of receiving the MM the CA doesn't really need to validate my debt?

Well, if you did not respond within 30 days of receipt then it does not matter whether you file in state court or federal court. You screwed up and the only thing the CA has to do is mark the account as disputed. They do not have to validate. You will need to find other ways to get violations so you can force them to delete.

[divemedic]

Don't give bad advice here. In Florida, we do have a version of the FDCPA and there is no requirement under Florida law that a dispute has to be filed in a 30 day time frame. There are risks that a small claims judge will misunderstand the rules of procedure and the law, that is why I am sure to include copies of case law, FTC opinions, etc. I lay it all out like I am describing it to a 6th grader. If she files in Orange County, she should be fine. I have filed there several times, as well as in Osceola County.

[bidamia]

Divemedic,

Would you be willing to help me assemble all of case law and FTC opinion letters for my case? One of the things that I was going to put in my prayer for relief is that the CA be ordered to remove the item from my CR and be odered to not collect on or sell my account to others. However, since this is only small claims, I can't ask for that, only monetary awards. Frankly I don't really care about the money, that's just icing. What I really want is the lines off my CR! Advice anyone?

btw, I'm a "he" not a "she" lol