Filing Suit in California

[DontGetMadGetEven]

I am super new to all of this, so obviously, I have a lot to learn before I seriously consider going and suing someone, but I am extremely fed up, and trying to prepare myself to stop being a victim to these scumbags and their terror tactics, and go on the offensive.

1. FDCPA violations: WHERE do I file suit for them? I am in California. Do I file in small claims court? Civil Court? Must I have an attorney? I know you can defend yourself without an atty, but can you sue without one?

2. I am being hounded not only by JDBs trying to collect from me, but also by others trying to collect from my roommate. We share a land line. If I tell his callers that he works during X hours, and is home during Y hours (which I've done repeatedly), is there a point at which I (as a third party) can go after them for harassing me during X hours, when they have been informed he will not be home?

[1stStep]

You can file in small claims up to $10k...that being the case, you'll want to pair your FDCPA violation with a state one (Rosenthal) to keep the defendant from removing the case to federal.

[DontGetMadGetEven]

Oh, good thinking! Thanks!

[chiquita55]

I believe if both your room mate and yourself write a letter telling these folks not to call you and that all correspondence must be thru the US mails that should stop them. They are not allowed to call if you send a cease and desist letter. Be sure to quote the fdcpa laws to them re. this. Send it certified mail. That should stop the phone calls. You need to send each one a letter. Both of you.

[calawyer]

You can file in small claims up to $10k...that being the case, you'll want to pair your FDCPA violation with a state one (Rosenthal) to keep the defendant from removing the case to federal.

"Pairing" FDCPA and Rosenthal will not prevent removal. Alleging only a Rosenthal claim under these circumstances should make removal improper.

In addition, nothing can prevent a defendant from removing. But alleging a claim that is based solely on state law, should cause the federal court to remand if no other ground for jurisdiction exists.

[usagi555]

"Pairing" FDCPA and Rosenthal will not prevent removal. Alleging only a Rosenthal claim under these circumstances should make removal improper.

In addition, nothing can prevent a defendant from removing. But alleging a claim that is based solely on state law, should cause the federal court to remand if no other ground for jurisdiction exists.

Shouldn't alleging a claim that is novel (i.e. no published appellate or state supreme court rulings on the matter) under state law also prevent removal (or rather lead to immediate remand,) even if most of your complaint is alleging violations federal law?

[DontGetMadGetEven]

I live in Los Angeles. We have a Federal Court here. Do I care if they remove?

[usagi555]

I live in Los Angeles. We have a Federal Court here. Do I care if they remove?

Moving from small claims to Federal will be like moving to Russia from the US.

[DontGetMadGetEven]

Is it allowed to represent oneself in Federal Court, and if so, is it feasible?

[usagi555]

It is your constitutional right to represent yourself in Federal. I'm going to paraphrase an anonymous person who has experience representing himself in Federal: "Those judges are no joke. They'll lay a smackdown on anyone, pro se or not. They don't care."

The message there is that they expect the rules to be followed, and if you are there, you have acquiesced to that. So, how well can you learn, understand and follow the FRCP? It'll also take resources to fight the case that you may not be aware of.

[DontGetMadGetEven]

What I can bring to the table: a 145 IQ, good argumentation skills, good research skills, good speaking skills, good writing skills, professional attire and demeanor. Before life took a turn for the weird, I'd planned to go to law school. It's something I'm interested in. If it's available to me, I can learn it, own it, and use it to good advantage.

What I cannot bring to the table: expensive research and documentation. Is this what you mean by "other resources"?

[usagi555]

I mean money for things like depositions. If you want to depose somebody, you'll have to pay the costs yourself, and that might include transportation and loss of wages for the person being deposed. Written depositions are allowed, but they won't be as dynamic as oral depositions. You figure your questions out, send them, and you've shot your wad. You should get a redirect if you want it, but you don't get the on-the-fly "Oh, I should explore this further" to anywhere near the same degree. And you also won't know if there is an attorney "guiding" the deponent's answers. If the witness isn't more than 100 miles from the courthouse, you may wind up having to cart them over to trial to testify if it gets that far too.

That doesn't mean it can't be done, but it does mean that you are really going to need to have much more evidence up front that doesn't rely on testimony that'll cost you.

[DontGetMadGetEven]

Thanks for the heads-up. Expensive is bad. I've already wasted enough "big" money on this situation. I'll happily cough up some "small" money to cause them any grief I can, but I've done all the scrimping I am willing to do on their account.

So, let's say I file in small claims court. Do i have any recourse if they try to remove the case to Federal court?

[usagi555]

You can have it remanded, but you need a reason to do so. If your only reason for remand is that you don't want to be in Federal, well, tough. Your case either needs to be based totally on state law or you need to have a state law issue that the Federal Court does not have any jurisdiction over.

[DontGetMadGetEven]

Ok. Step one: learn Rosenthal.

I really appreciate everyone's input. Thank you all.

[bad98roadster]

1. FDCPA violations: WHERE do I file suit for them? I am in California. Do I file in small claims court? Civil Court? Must I have an attorney? I know you can defend yourself without an atty, but can you sue without one?

2. I am being hounded not only by JDBs trying to collect from me, but also by others trying to collect from my roommate. We share a land line. If I tell his callers that he works during X hours, and is home during Y hours (which I've done repeatedly), is there a point at which I (as a third party) can go after them for harassing me during X hours, when they have been informed he will not be home?

On the JDB's trying to collect from you; Who did the JDB purchase the debt from? ie who's the original creditor?

[DontGetMadGetEven]

One is OC Cap1, Current owner LNNV, with Northland sending me letters. The other is OC CitiFinancial, Current owner Cascade Capital, Allgate Financial sending letters.

[bad98roadster]

JDB's step into the shoes of the OC when they purchase delinquent debt.

Most OC's have an arbitration provision in their cardmember agreements.

If you sue a JDB in court, and lose, you are responsible for their legal fees and court costs.

If you file a claim in arbitration, and you live in California, you are not responsible for their legal fees if you lose.

If you file a claim in arbitration, it costs your opponent more to defend themselves which usually manifests into a faster or higher settlement for you.

You sound like you can handle the following homework assignment;

Find and carefully read the OC's cardmember agreement. Some examples are here: Bank Credit Card Agreement links and posts

See ccp 1284.3 (a) California Code of Civil Procedure Section 1284.3 - California Attorney Resources - California Laws

See JAMS rules consumer protocol rule(s) 7 and 8. JAMS Arbitration, Mediation, and ADR Services | Consumer Minimum Standards

[usagi555]

JDB's step into the shoes of the OC when they purchase delinquent debt.

Most OC's have an arbitration provision in their cardmember agreements.

If you sue a JDB in court, and lose, you are responsible for their legal fees and court costs.

If you file a claim in arbitration, and you live in California, you are not responsible for their legal fees if you lose.

If you file a claim in arbitration, it costs your opponent more to defend themselves which usually manifests into a faster or higher settlement for you.

You sound like you can handle the following homework assignment;

Find and carefully read the OC's cardmember agreement. Some examples are here: Bank Credit Card Agreement links and posts

See ccp 1284.3 (a) California Code of Civil Procedure Section 1284.3 - California Attorney Resources - California Laws

See JAMS rules consumer protocol rule(s) 7 and 8. JAMS Arbitration, Mediation, and ADR Services | Consumer Minimum Standards

Unless it's considered frivolous or harassment, you shouldn't wind up on the hook for their legal fees if you lose.

[DontGetMadGetEven]

Thanks for the additional info. I'll go soak that up, too.

I'm starting to think I should have posted all of my stuff under one thread. I was trying to post issues by topic. Now it's getting kind of confusing with different bits of the story here and there.

The two that are after me are trying to collect one one account that i KNOW I settled on, about 5 years ago (Cap 1), and has already come off my credit; and a second account (Citi) which I am not sure I ever had in the first place, but I am 100% positive that I settled every last account that went delinquent, and even if i hadn't settled it, it's out of SOL. It has also aged off my credit.

The ones after roomie are all out of SOL. I plan to draft some scathing letter templates for him to use...once we can get mailing addresses for his. They aren't sending postal mail, and when asked for a mailing address, the callers either refuse or just hang up. Because many of them use spoofed Caller IDs, I am not having much luck at backtracking them. One way or another, I'll get them, because they are driving us crazy. Some of them call as many as 6 times a day.

[1stStep]

"Those judges are no joke. They'll lay a smackdown on anyone, pro se or not. They don't care."

This is very true, I heard of a tongue lashing that a local lawyer got when he failed to follow the judge's rules to the letter...

[legaleagle]

Change the phone number. If you never sent them a cease and desist letter, they can keep calling as long as it is during certain hours. I know it's aggravating to get these calls, but they just might be legal. Under the FDCPA, you are looking at a grand statutory relief. Before you take a chance on federal court, make sure the violation is legit. If you can prove these are out of SOL, you have a stronger case. Citi SOL is 6 years, Cap 1 is (now) 3 years or yours, whichever is longer.

[DontGetMadGetEven]

California SOL is 4 years. Why is Citi's 6? Even at 6 years, I think they are screwed. If it's off my credit report, it must be 7+ years, right?

[1stStep]

California SOL is 4 years. Why is Citi's 6? Even at 6 years, I think they are screwed. If it's off my credit report, it must be 7+ years, right?

You're mixing up two different things...

SOL is the time after default in which you can be sued. In CA, it's 4 years. This gives you a legal defense if you're sued on a debt.

The credit reporting has to do with how long negative items can be reported - that's 7 years.

You can still be sued on accounts that pass their SOL and fall off credit reports - just because the time has elapsed, does not mean the debt is dead.

[DontGetMadGetEven]

I already settled these accounts AND they're more than 7 years old.