Small Claims suit being moved to Federal Court?

[egallagher2k]

In a nutshell I filed a suit in small claims court for $1000 against a collection agency for 3 violations of the FDCPA. Hearing is scheduled for tomorrow and today my ex-wife at a different address gets a voicemail from the CA's attorney for me which said they are getting ready to file to have the case moved to federal court and it would be mutually beneficial if I could give her a call.

My correspondence with CA has been going on for 7 months and suit was filed a month ago...no prior response from CA. I have documented proof of the violations.

Question, should I return the lawyers call? They are out of state and I was sure I'd get a default judgement from the local DJ. If it get's moved to Federal Court, I guess I would have to incur some upfront legal expenses?? I guess that is their thinking. I originally just wanted a tradeline dropped. It is not my debt and the OC they mention on my CR has verified to me in writing that I owe them nothing and never did.

Should I just let the chips fall where they may or negotiate a drop for delete?

[Amerikaner83]

court tomorrow?

HAHAHA

Go to court. Get the Default. Easiest grand you ever made

[nascar]

they are getting ready to file to have the case moved to federal court and it would be mutually beneficial if I could give her a call.

I've heard that threat before. Didn't work against me - don't let it work against you.

[mcb11902]

There is a time limit on when an action can be removed from a state court to a federal court, it's either 20 or 30 days; I can't remember right now. So if your action was filed more than 30 days ago (for the sake of argument, go with the longer time), they can't have it removed to federal court.

[sj145]

Make sure you let us know how this worked out:!:

[egallagher2k]

Well I showed up for court and indeed the lawyer sent the DJ a document stating that they were removing the case to federal court along with a copy of a request to the Eastern District court to have the case removed from the magisterial district. The DJ's office tells me that the case is still open until such time as they hear from the District court about whether it is remanded or not but that they would not be making a ruling today.

Personally, federal court sounds better to me since these were FDCPA and FCRA violations. For future reference would it have been better to file state statute violations? And can you file suit in both state and federal courts at the same time?

[Bodhi]

Cases CAN be moved to federal court especially if the laws you are using to uphold your complaint are Federal (such as the FDCPA and the FCRA). Most states also have versions of the FDCPA and the FCRA, so you are best just to cite those state laws.

As for the reasoning in them requesting the case be moved, the district judge / magistrate must agree to allow the removal. Add to that the fact that a Federal Judge is going to be very unimpressed over the fact a federal court's time is being wasted over a small $1000 lawsuit. The bottonline reason the attorney for the CA is trying to move it to Federal is for the intimidation factor. Unlike Small Claims Court, Federal Court has many very formal rules and procedures that must be followed. They (the CA's attorney) knows you more than likely do not know these rules and are hoping you will drop the case.

My bet is that you are best to show up at the hearing and see if the CA even follows through with the removal to a higher court. If so, contact NACA and they can provide you with a list of names of attorneys in your area that can help you.

One last thing, did the CA file notice that they were being represented by an attorney? Most small claims courts require that if an entity is represented by an attorney, they must be on majority retainer or full time employees of the entity. Almost all Small Claims Courts require that the attorney's file notice of appearence.

[nascar]

Cases CAN be moved to federal court especially if the laws you are using to uphold your complaint are Federal (such as the FDCPA and the FCRA).

FDCPA actions, by statute, may be filed in any court of competenct jurisdiction. Since the case was already filed in state court, combined with what looks like the failure to meet federal requirements of complete diversity and required amount in controversy ($75,000), you should have no problem keeping the case in lower court.

[egallagher2k]

Thanks. Here's what they cited.

They say that removal of state court action is proper under 28 U.S.C. 1441

I have not yet be served this via fed-ex as stated in the fax to the DJ. Maybe they sent it to the wrong address.

[nascar]

They say that removal of state court action is proper under 28 U.S.C. 1441.

Yes, you're right. My lawsuits never included direct FDCPA violations. I alleged in my complaints that FDCPA violations violated state law and only sought relief under state statutes. It worked to keep my cases in state court.

In any case, Bodhi is right; they're just trying to intimidate you. Still, it might be to your advantage to amend your complaint.

[Bodhi]

I agree with Nascar.

Here is what I would do. Get on the net and search the FDCPA statutes for the state you live in. Ammend your complaint to cite the STATE STATUTES under the FDCPA, and NOT the Federal.

The state I live in has almost a carbon copy of the federal statutes. I am citing those in the complaint I am getting ready to file to prevent the case being remanded to Federal Court in the first place. My only problem is my complaint exceeds the state maximum for small claims and I am going to be forced to file in Circuit Court.

Either way, they are just trying to intimidate you with the Federal Court label. If it really worries you, ask / pay an attorney to file the necessary paperwork ammend your complaint and help it to stay in a state court.

If that does not work, you had best read up on Federal Court Procedures and be well versed, or hire an attorney. If you don't it will just be dismissed with prejudice to prevent you from filing it again.