SecretAgentWoman

My lawsuit against Palisades Collections

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I am SO tired.

I was up all last night putting together a possible case against them, because they are douchbags, the inspiration for becoming a nutcase, and I'm itching to hurt them.

So, I need clearer heads than mine to review and critique this original petition, pretty please:

SecretAgentWoman,

Plaintiff

vs.

PALISADES COLLECTIONS, LLC

by serving

CORPORATION SERVICE CO, DBA CSC-LAWY,

Registered Agent,

Defendant

§

§

IN THE COUNTY

COURT AT LAW NO. 2

YAHOO COUNTY, TEXAS

PLAINTIFF’S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF THIS COURT:

COMES NOW the Plaintiff, SecretAgentWoman, pro se, files this Original Petition, complains of PALISADES COLLECTIONS, LLC, and for cause of action would respectfully show as follows:

I. JURISDICTION AND VENUE

1. Jurisdiction of this court arises under 15 U.S.C § 1692k(d) and Texas Civil Practices and Remedy Code §15.002a(1).

2. Venue is proper in YAHOO County because a substantial part of the events and omissions giving rise to this claim of harm to Plaintiff occurred in YAHOO County, where Plaintiff resides.

3. Plaintiff’s Federal and State Law claims against the Defendant derive from a common focus of operative fact and are of such character that Plaintiff would ordinarily be expected to try them in one judicial proceeding. Consequently, this court has pendent jurisdiction over Plaintiff’s Federal Law claims against the Defendant.

II. PARTIES

4. Plaintiff, SecretAgentWoman, is a natural person residing in YAHOO County, Texas.

5. Defendant, PALISADES COLLECTION, LLC, is a New Jersey corporation doing business in Texas by using instruments of interstate commerce to facilitate the collection of debts owed or asserted to be due another; and may be served with process by serving its registered agent, CORPORATION SERVICE CO, D/B/A CSC-LAWY, 666 Jerkface Plaza, Austin, Texas 78701.

III. FACTS

6. In March 2007, Defendant placed two trade lines in the Plaintiff’s consumer reporting agency reports with Equifax, Experian and TransUnion, alleging Plaintiff owed these debts. The accounts reported were XXXXXXXXXX1, in the amount of $128.00 and XXXXXXXXXX2, in the amount of $65.00.

7. Defendant is therefore a “debt collector” as defined in 15 USC 1692a(6) and the Texas Finance Code (TFC) §392.001(6). Plaintiff is a “consumer” as defined in 15 USC 1692a(3) and TFC §392.001(1). The purported accounts are “debts” as defined by 15 USC 1692a(5) and “consumer debt” as defined TFC §392.001(2).

8. On March 29, 2007 Plaintiff sent a letter via certified mail disputing both accounts and requesting validation of the debts per the Fair Debt Collection Practices Act (FDCPA) and an investigation per the TFC. Defendant did not update the trade lines on Plaintiff’s consumer reporting agency files to “disputed” as required by the FDCPA, Fair Credit Reporting Act (FCRA) and the TFC.

9. On April 5, 2007 Plaintiff sent certified letters to Equifax, Experian, and TransUnion disputing the trade lines.

10. On April 9, 2007 Plaintiff wrote Defendant another letter reminding them of Federal and Texas law in regards to the dispute. Defendant still did not update the trade lines.

11. On April 10, 2007 Plaintiff called the Defendant via telephone, whose agent refused to speak with Plaintiff, insisting Plaintiff call Allied Interstate, Defendant’s agent for collecting the disputed accounts. The representative for Allied Interstate told Plaintiff to send the dispute to Allied Interstate directly.

12. On April 10, 2007 Plaintiff sent a copy of the dispute letter to the Allied Interstate office via certified mail. Defendant still did not update the trade lines to “disputed” nor send any communication regarding an investigation into Plaintiff’s complaint.

13. On April 18, 2007 Plaintiff sent a forth letter to Defendant again detailing Federal and Texas Law regarding the dispute.

14. Both on April 23 and 25, 2007 Plaintiff called via telephone the Defendant regarding the dispute, and was told Defendant would be sending communication immediately.

15. On April 28, 2007 Plaintiff received a letter from Defendant referencing only one of the two disputed debts, account XXXXXXXXXX1, stating they are investigating, and have placed the account in dispute status. No validation from the original creditor was provided, and Plaintiff neither admitted nor denied the account was inaccurate. Defendant made no mention of account XXXXXXXXXX2 in the correspondence.

16. On April 29, 2007 Plaintiff wrote Defendant a letter again detailing that the trade lines with the consumer reporting agencies had not been updated to “disputed,” and the 30 days required by law for the investigation were up. Plaintiff demanded both trade lines be removed immediately from all three consumer reporting agencies.

17. On May 4, 2007 the final results of Plaintiff’s dispute with Equifax, Experian and TransUnion showed that Defendant removed the second disputed trade line, account XXXXXXXXXX2, from all three consumer reporting agencies. However, the first trade line, account XXXXXXXXXX1, was still listed with the notation “Consumer disputes after resolution” (Equifax) and “Subscriber reports dispute resolved – consumer disagrees” (Experian) indicating that Defendant verified that the trade line was complete and accurate with the consumer reporting agencies, although Defendant had not provided any proof or results of an investigation to Plaintiff. TransUnion still listed the account with no comment or notation that the trade line was in dispute.

18. On May 5, 2007 Plaintiff filed complaints with the New Jersey Attorney General, the Federal Trade Commission, the Texas Attorney General and the New Jersey Better Business Bureau detailing the violations. Plaintiff sent a copy of all four complaints to Defendant and a letter detailing Plaintiff’s intention to sue, giving Defendant 15 days to respond.

19. Plaintiff received no response from Defendant.

COUNT ONE

VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT

20. Plaintiff incorporates herein the allegations in Paragraphs 1-19, above.

21. Defendant violated FDCPA § 807(2)(a), 15 USC § 1692e(2)(a), multiple times by false representation of the character, amount, or legal status of the alleged debt.

22. Defendant violated FDCPA § 807(8), 15 USC § 1692e(8), multiple times by communicating information that is known to be false, including the failure to communicate that a disputed debt is disputed.

23. Defendant violated FDCPA § 807(B), 15 USC § 1692g(B), multiple times by continuing collection activity after being notified of Plaintiff’s dispute, not obtaining verification of the debt from the original creditor, and not providing Plaintiff with the name and address of original creditor.

CIVIL LIABILITIES FOR VIOLATIONS OF THE FDCPA

24. Pursuant to FDCPA § 813(a)(2)(A), 15 USC § 1692k(a)(2)(A), Defendant is liable to Plaintiff for violations of the FDCPA in the amount of $1,000.00 per violation.

COUNT TWO

VIOLATIONS OF THE FAIR CREDIT REPORTING ACT

25. Plaintiff incorporates herein the allegations in Paragraphs 1-19, above.

26. Defendant violated FCRA § 623(a)(1)(A), 15 USC § 1681s-2(a)(1)(A), multiple times by reporting the alleged debt to the consumer reporting agencies with actual knowledge of errors.

27. Defendant violated FCRA § 623(a)(1)(B), 15 USC § 1681s-2(a)(1)(B), multiple times by reporting the alleged debt to the consumer reporting agencies after being notified by the Plaintiff that the information is inaccurate and determining that the information is indeed inaccurate.

28. Defendant violated FCRA § 623(a)(2)(B), 15 USC § 1681s-2(a)(2)(B), multiple times by failing to correct the inaccurate information promptly with the consumer reporting agencies.

29. Defendant violated FCRA § 623(a)(3), 15 USC § 1681s-2(a)(3), multiple times by reporting information to the consumer reporting agencies without notice that such information is disputed by consumer.

CIVIL LIABILITIES FOR VIOLATIONS OF THE FCRA

30. Defendant received multiple reinvestigation requests both from Plaintiff and the consumer reporting agencies, and failed to do so, and thus demonstrated a willful noncompliance on the part of the Defendant.

31. Pursuant to FCRA § 616(a)(1)(A), 15 USC § 1681n(a)(1)(A), Defendant is liable to Plaintiff for violations of the FCRA in the amount of $1,000.00 per violation.

COUNT THREE

VIOLATIONS OF THE TEXAS FINANCE CODE

32. Plaintiff incorporates herein the allegations in Paragraphs 1-19, above.

33. Defendant violated TFC § 392.202(a) multiple times by failing to initiate an investigation of the dispute by Plaintiff, and failing to cease collection efforts until the investigation was complete.

34. Defendant violated TFC § 392.202(B) multiple times by failing to send a written statement to Plaintiff no later than the 30th day after the date of notice of inaccuracy was received, denying the inaccuracy, admitting the inaccuracy, or stating that the Defendant has not have sufficient time to complete an investigation of the inaccuracy.

35. Defendant violated TFC § 392.202© multiple times by failing to change the item in the relevant file as requested by Plaintiff, send the required notice of the change in file to each entity Defendant had previously reported to, and to cease collection efforts.

36. Defendant violated TFC § 392.301(a)(3) multiple times by representing to the consumer reporting agencies that Plaintiff was willfully refusing to pay a non-disputed consumer debt when it was in fact disputed, and Plaintiff had notified the Defendant in writing that the alleged consumer debt was disputed.

37. Defendant violated TFC § 392.304(a)(1) multiple times by misrepresenting the character, extent, or amount of the alleged consumer debt.

CIVIL REMEDIES AND LIABILITIES FOR VIOLATIONS OF THE TFC

38. Pursuant to TFC § 392.403(a)(1), Plaintiff is entitled to injunctive relief to prevent or restrain Defendant from further violations of the TFC.

39. Pursuant to TFC § 392.403(B)(1), Plaintiff is entitled to no less than $100.00 for each violation. Plaintiff requests the court find Defendant liable in the amount of $500.00 for each violation.

IV. PRAYER FOR RELIEF

40. WHEREFORE, Plaintiff prays for relief as follows:

a) That the Defendant be cited according to law to appear and answer herein.

B) That this Court exercise jurisdiction over the Defendants and the subject matter of this case.

c) For permanent injunctive relief, enjoining the Defendant from engaging in further violations of the FDCPA, the FDCRA, and the TFC.

d) For permanent injunctive relief, enjoining Defendant from selling, transferring, reporting, or otherwise assigning the above named accounts to any other collection agency, debt collector, reseller, or consumer reporting agency.

e) Adjudge against Defendant statutory damages in favor of the Plaintiff in the following amounts:

1. For violations of the Fair Debt Collection Practices Act, in the amount of $9,000;

2. For violations of the Fair Credit Reporting Act, in the amount of $12,000.00;

3. For violations of the Texas Finance Code, in the amount of $7,500.00.

f) Adjudge against the Defendant punitive damages in favor of the Plaintiff in the amount of $15,000.00.

g) Adjudge against the Defendant in favor of the Plaintiff all court costs, attorney’s fees, and such further relief at law and equity to which the Plaintiff may be entitled.

41. Plaintiff requests a trail by jury in this action.

Respectfully submitted,

SecretAgentWoman

Pro Se

123 Trailer Trash Road

YAHOO, Texas 77777

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Looks very good.

A few minor critiques. The first paragraph has to state Discovery Level, which should be Level 1, according to TRCP Rule 190.

You can also add that Palisades is bonded as a debt collector with TX SOS.

Allied Interstate is also a debt collector, maybe it should be one of the parties to your suit.

One last thing, FDCPA statutory damages are "per action" not "per violation".

I'm going to read it again to see if I find anything else.

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You also need to add the bonding company as a defendent, they are the vehicle for paying the TFC violations. Did you give notice of Chapter 17 DTPA as this allows for further damages and trebling? If you gave proper notice, it should be added to the pleading.

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Looks very good.

A few minor critiques. The first paragraph has to state Discovery Level, which should be Level 1, according to TRCP Rule 190.

I'm still learning - I have to read more on this I guess...discovery level?

You can also add that Palisades is bonded as a debt collector with TX SOS.

Will do.

Allied Interstate is also a debt collector, maybe it should be one of the parties to your suit.

Allied kicked it back to Palisades as soon as I DV'd them - so I wasn't sure - what do you think? They are NOT collecting as of now.

One last thing, FDCPA statutory damages are "per action" not "per violation".

Oh...I guess I need to read up on this, to. What's the difference?

You also need to add the bonding company as a defendent, they are the vehicle for paying the TFC violations.

How do list them under parties? Because they aren't violators, how do I word it why they are a defendant?

Did you give notice of Chapter 17 DTPA as this allows for further damages and trebling? If you gave proper notice, it should be added to the pleading.

I decided to not claim any damages under the DTPA so I wouldn't have to wait 60 more days to file. (Impatient.) Good idea? Bad idea? Thoughts?

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The bonding company is not a party to your lawsuit.

If you prevail against that JDB and they don't pay you the full amount awarded, you go after their bond with the SOS. Which guarantees you'll be able to collect up to $10K from each bonded collector even if they are out of state.

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The bonding company is not a party to your lawsuit.

If you prevail against that JDB and they don't pay you the full amount awarded, you go after their bond with the SOS. Which guarantees you'll be able to collect up to $10K from each bonded collector even if they are out of state.

You add the bonding company as a tactic to help force the CA to settle. Their attorneys are going to be a lot less interested in fighting a strong case unlike the pond scum attorneys for the CA. What do you want a settlement on favorable terms or a court fight?

§392.102. CLAIM AGAINST BOND. A person who claims against a bond for a violation of this chapter may maintain an action against the third-party debt collector or credit bureau and against the surety. The aggregate liability of the surety to all persons damaged by a violation of this chapter may not exceed the amount of the bond.

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My formatting may be off a little but language and heading are correct

PLAINTIFF’S ORIGINAL PETITION & REQUEST FOR DISCLOSURE

A. Discovery Control Plan

1. Plaintiff intends to conduct discovery under Level 1 of Texas Rule of Civil procedure 190.2 because this suit involves only monetary relief aggregating not more than $50,000, excluding court costs, prejudgment interest, and attorney fees.

Where did you get your formatting from? I may be wrong but it doesn't match up to the form book I have for Texas (O'Connors Texas Civil Forms 2004-2005)

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do you have any case law about this?

I researched it. Besides, I think you don't even have to deal with the bonding company. You have to sue for the unpaid judgment and the SOS will make sure you get your cash.

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Where did you get your formatting from? I may be wrong but it doesn't match up to the form book I have for Texas (O'Connors Texas Civil Forms 2004-2005)

My formatting is temporary, I haven't gotten the book yet and just laid out what I wanted to say. I wouldn't even begin to file until the first of June, so I have time to clean it up. Thus, the request for suggestions.

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I started a thread about FDCPA action vs. violation and the difference is that no matter how many FDCPA claims you have, you can only get up to $1,000 statutory damages.

If you read the sticky on FDCPA damages, you may try to include other actual damages so you may get more than $1,000.

I suggest you pursue DTPA in addition to your current claims.

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On 17, do you mean "removed the dispute notation" or "removed the entire tradeline from Plaintiff's report"? It seemed to me that either could be inferred.

On 1681s2-a -- that is not actionable by an individual, only a gov't agency. You need to rework it into an s-2b claim, which means that you need to allege that you disputed with the CRAs and they transmitted the dispute to the data furnisher and the data furnisher responded.

State law claims against data furnishers for FCRA violations are generally pre-empted -- you'll need to check case law to verify if this is true for the way Texas state law is written. (It doesn't hurt to leave them in, but if you can make your pleading more likely to survive a motion for summary judgment, that would be better. Trust me on this, I've just been through it.)

Also, things like failure to note your account in dispute -- you can have an FDCPA claim for that, but not the state claim because that too is pre-empted.

FDCPA claims are $1000 per action, not $1000 per violation. Per action = per lawsuit. So ask for $1000, not $9000.

Where you say FDCRA, I think you mean FCRA. Individuals don't get injunctive relief under the FCRA. You can sue them for all the money in the world, but the court doesn't have the right to order them to delete your tradeline (for FCRA violations, anyway).

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I suggest you pursue DTPA in addition to your current claims.

Care to elaborate? Just to get more money or...? Because I just want a delete and maybe some small change.

On 17, do you mean "removed the dispute notation" or "removed the entire tradeline from Plaintiff's report"? It seemed to me that either could be inferred.

I'll change that up to be more clear.

On 1681s2-a -- that is not actionable by an individual, only a gov't agency. You need to rework it into an s-2b claim, which means that you need to allege that you disputed with the CRAs and they transmitted the dispute to the data furnisher and the data furnisher responded.

Ok, will work on that.

State law claims against data furnishers for FCRA violations are generally pre-empted -- you'll need to check case law to verify if this is true for the way Texas state law is written. (It doesn't hurt to leave them in, but if you can make your pleading more likely to survive a motion for summary judgment, that would be better. Trust me on this, I've just been through it.)

Also, things like failure to note your account in dispute -- you can have an FDCPA claim for that, but not the state claim because that too is pre-empted.

By pre-empted, does this mean you can only claim one, not both? Which takes precedence, do I choose or is there a standard?

FDCPA claims are $1000 per action, not $1000 per violation. Per action = per lawsuit. So ask for $1000, not $9000.

That's chump change! No wonder CAs and JDBs don't seem to be too scared of the FDCPA...:rolleyes:

Where you say FDCRA, I think you mean FCRA. Individuals don't get injunctive relief under the FCRA. You can sue them for all the money in the world, but the court doesn't have the right to order them to delete your tradeline (for FCRA violations, anyway).

Where do you mean?? I asked for injunctive relief only based on Texas law, which does allow it. Did that not come clear?

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I stand corrected. I thought you REALLY REALLY wanted those $9K you were asking for. If all you want is deletion, no need to involve DTPA.

Reword the part about the injunctions. Ask the court to prevent them to continue violating TFC and leave out the part about injunctions on FCRA and FDCPA violations.

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By pre-empted, does this mean you can only claim one, not both? Which takes precedence, do I choose or is there a standard?

That's chump change! No wonder CAs and JDBs don't seem to be too scared of the FDCPA...:rolleyes:

Where do you mean?? I asked for injunctive relief only based on Texas law, which does allow it. Did that not come clear?

Okay, I'll answer all of these.....

1) FCRA pre-empts any state law that disagrees with it. You MUST use the federal law. Of course, there's no penalty to using the state law, just be prepared to lose.

2) Yes, $1000 per action is why FDCPA is considered peanuts.

3) Injunctive relief isn't available under state credit reporting law because it is pre-empted by the federal (which doesn't allow injunctive relief by consumers). Get what I mean? Now, your state debt collection law may permit it, and then you'd ask for it there. But they could argue -- and possibly win -- that you're really asking for FCRA injunction, which isn't possible for a consumer.

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So, does that mean I'm better off filing on Federal and State in seperate suits? Is that even possible??

I'm thinking I should go just state only then...and add the DTPA damages...

No, because they'll be joined. Always add the federal, imho.

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Again, think about your goal. If you want money, then DTPA is the way to go.

The standards of proof for damages under DTPA are as low as they get. Sometimes you may have trouble getting the $1,000 statutory under FDCPA, and getting actual damages is no picnic either, but under DTPA you only have to show that the defendant's conduct was a "producing cause of economic damages or damages of mental anguish".

This is an excerpt from an article by Richard M. Alderman, "The Texas Deceptive Trade and Practices Act 2005 Still Alive and Well".

This is the lowest causation standard employed by the courts and has been defined to mean: "an efficient, exciting or contributing cause, which in a natural consequence, produced injuries or damages complained of". "A producing cause is a substantial factor which brings about the injury and without which the injury would have not occurred".

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