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sueing in small claims


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I have 3 questions I hope someone can answer:

1. Can I start a lawsuit for FDCPA violations against a credit card company in small claims court if they already have a suit against me in civil court for a debt?

and if not...

2. While in civil court with them, how can I request to be heard in a higher court so the judge would entertain the FDCPA violations (because she really didn't care about that at pre-trial)? I can't seem to find anything in the Michigan Court Rules regarding Bona Fide Error.

3. We have 30 days of discovery right now. I would like to call a head person at the law firm as a witness to answer about the procedures they are supposed to have in place to avoid errors. How would I do that?

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I have 3 questions I hope someone can answer:

1. Can I start a lawsuit for FDCPA violations against a credit card company in small claims court if they already have a suit against me in civil court for a debt?

and if not...

2. While in civil court with them, how can I request to be heard in a higher court so the judge would entertain the FDCPA violations (because she really didn't care about that at pre-trial)? I can't seem to find anything in the Michigan Court Rules regarding Bona Fide Error.

3. We have 30 days of discovery right now. I would like to call a head person at the law firm as a witness to answer about the procedures they are supposed to have in place to avoid errors. How would I do that?

For 1, maybe. The FDCPA allows actions in "any court of competent jurisdiction." This, however, does not prevent a small claims court from limiting its own jurisdiction. For example, in NM, small claims courts only have jurisdiction over the defendant if the defendant was served in New Mexico. That knocks a whole bunch of CAs out for me were I to entertain the idea of small claims, which I wouldn't for other reasons. You need to explore things like this too.

For 2, I wouldn't expect anything about bona fide error as it applies to the FDCPA in MI's rules. The FDCPA is a federal law. You need to go to federal case law on that, but basically, bona fide error is a pretty tough defense for CAs to successfully pull off.

For 3, Are you suing them, or are they suing you on behalf of some client? If you have some violations on them, I'd consult a consumer attorney. You may end up having to file a separate suit against them, and unless you are up for cramming an enormous amount of rules and laws into your head in a very short time, you're going to have fun not ticking the court off if you are the one bringing the action against them and you don't know what you're doing. If you have a valid FDCPA claim, most decent consumer attorneys will take your case on a contingency basis because the FDCPA allows for whatever you recover plus they have to pay your attorney if you win.

Also, I'm not sure what you mean by "higher court" because I don't know what court you are in. If you are arguing federal questions, you can have the case removed to federal court, but doing so is no joke and is just asking to get smacked down if you aren't willing to learn the rules very well and toe the line.

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Have you made a Counter Claim, it does not seem like it from what you are saying. Just bringing up FDCPA to the Judge will not cut it, way to many people come here and want to "bring it up with the judge"

Who would be the target of your FDCPA violations, if it is a JDB suing you then why would you need someone from the law firm?

The final word on Bona Fide Error is the US Supreme Court:

http://www.supremecourt.gov/opinions/09pdf/08-1200.pdf

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Your question number three falls under the bar association rules of professional conduct. You would only be able to question the law firm head about firm procedures if you were suing them for malpractice, which you cannot do, since they are not representing you. If this is an original creditor, Chase, Citibank, etc., the FDCPA does not apply to them.

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Michigan State Statutes Regulating Debt Collection / Debt Collectors

MICHIGAN LEGISLATURE

REGULATION OF COLLECTION PRACTICES

Act 70 of 1981

445.251 Definitions.

Sec.1. As used in this act:

(e) "Creditor" or "principal" means a person who offers or extends credit creating a debt or a person to whom a debt is owed or due or asserted to be owed or due. Creditor or principal does not include a person who receives an assignment or transfer or a debt solely for the purpose of facilitating collection of the debt for the assignor or transferor. In those instances, the assignor or transferor of the debt shall continue to be considered the creditor or the principal for purposes of this act.

(g) "Regulated person" means a person whose collection activities are confined and are directly related to the operation of a business other than that of a collection agency including the following:

(i) A regular employee when collecting accounts for 1 employer if the collection efforts are carried on in the name of the employer.

( xi) An attorney handling claims and collections on behalf of a client and in the attorney's own name

NEVER SAYS DEBT COLLECTOR - ONLY IN THE HEADING OF THE SECTION

445.252 Prohibited acts.

Sec. 2. A regulated person shall not commit 1 or more of the following acts:

(e) Making an inaccurate, misleading, untrue, or deceptive statement or claim in a communication to collect a debt or concealing or not revealing the purpose of a communication when it is made in connection with collecting a debt.

I don't see how this does not imply that an OC is not a debt collector. The attorney representing the OC is Weltman, Weinberg & Reis, they are a debt collector. I want to question someone as to why their procedures to avoid errors were not implemented.

MICHIGAN CONSUMER PROTECTION ACT (EXCERPT)

Act 331 of 1976

445.911 Action by person for declaratory judgment, injunction, or actual damages; class action by person for actual damages; order; hearing; receiver; sequestration of assets; cost of notice; limitations.

Sec. 11.

(1) Whether or not he seeks damages or has an adequate remedy at law, a person may bring an action to do either or both of the following:

(a) Obtain a declaratory judgment that a method, act, or practice is unlawful under section 3.

(6) If the defendant shows by a preponderance of the evidence that a violation of this act resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid the error, the amount of recovery shall be limited to actual damages.

Maybe I am way off here. I also thought this would give me a leg up since this is Michigan Law.

Thought this was going to be too easy...LOL

Would really like some feedback even if it is to tell me what a noobie I am.

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