How to cite the FDCPA on a smalls claims complaint?

[Game Plan]

Hello,

I have grown tired of collection agencies blatantly violating the FDCPA. After, several rounds DVs and CRA disputes, I have sent ITS letters to two CAs and intend to follow through with a suit in small claims court if they fail to act in accordance with the law.

I want to make sure that I correctly cite the relevant statues on my complaint. Any input or critique would be greatly appreciated.

MCM failed to include Failure to include a Mini Miranda warning on their initial communication. I believe this violates (15 U.S.C. § 1692g Sec. 809 (a) (3) & 15 U.S.C. § 1692g Sec. 809 (a) (4))

MCM & RPM have added collection accounts to my credit reports after they received a DV letter from me within the 30 day period. I sent all correspondence certified mail return receipt do I have proof of the dates. They have also verified the accounts when I disputed them with the CRAs. MCM was dumb enough to send a reply to my DV letter stating that they did not have any proof but would request it from the owner of the account. Apparently, the lack of proof did not compel them to not report and verify the account with the CRAs. I believe that this constitutes continued collection activities and is in violation of (15 U.S.C. § 1692g Sec. 809 ().

I have not applied or been denied for credit so I will be asking only for statutory damages. I believe 15 U.S.C. § 1692k Sec. 813 (a) (2) (a) is the correct law to cite but want to make sure.

One question, does anyone know the case law were the court determined that reporting new collection accounts and verifying information prior to handling the consumers DV is considered continued collection activity.

Thanks in advance for any help.

[usagi555]

Hello,

I have grown tired of collection agencies blatantly violating the FDCPA. After, several rounds DVs and CRA disputes, I have sent ITS letters to two CAs and intend to follow through with a suit in small claims court if they fail to act in accordance with the law.

I want to make sure that I correctly cite the relevant statues on my complaint. Any input or critique would be greatly appreciated.

MCM failed to include Failure to include a Mini Miranda warning on their initial communication. I believe this violates (15 U.S.C. § 1692g Sec. 809 (a) (3) & 15 U.S.C. § 1692g Sec. 809 (a) (4))

MCM & RPM have added collection accounts to my credit reports after they received a DV letter from me within the 30 day period. I sent all correspondence certified mail return receipt do I have proof of the dates. They have also verified the accounts when I disputed them with the CRAs. MCM was dumb enough to send a reply to my DV letter stating that they did not have any proof but would request it from the owner of the account. Apparently, the lack of proof did not compel them to not report and verify the account with the CRAs. I believe that this constitutes continued collection activities and is in violation of (15 U.S.C. § 1692g Sec. 809 ().

I have not applied or been denied for credit so I will be asking only for statutory damages. I believe 15 U.S.C. § 1692k Sec. 813 (a) (2) (a) is the correct law to cite but want to make sure.

One question, does anyone know the case law were the court determined that reporting new collection accounts and verifying information prior to handling the consumers DV is considered continued collection activity.

Thanks in advance for any help.

Unless there are specific requirements in whatever court you file suit in, just read federal rulings on the FDCPA. Copying how they do it is proper. You don't need the Sec. 813(a)(2)(a) stuff. Just 15 U.S.C. § 1692k (a) (2) (a) will work.

Now then, let me tell you about supplemental jurisdiction and removal. I don't know about your state, but if you cannot serve a person authorized to accept service within the physical borders of my state, the small claims court does not have jurisdiction. But lets assume that's not an issue for you here, either because your state is different (I don't know if it is,) or you are dealing with local CAs. The FDCPA is a federal law. Yes, it can be heard in "any court of competent jurisdiction," but it still raises a federal question. The Federal courts also have jurisdiction over this. The other side can, and often will follow the rules and procedures and pay the fee required to snatch that case right out of small claims and plop it right into Federal Court. Now, you are dealing with a much stricter set of rules that are enforced more strictly by federal judges. This can be quite intimidating for most.

But what if you also throw in some state consumer law claims? Well, so long as the core of operative facts overlap the core of the FDCPA claims' operative facts, the Federal Court can exercise what is known as supplemental jurisdiction. So long as it is not a novel question of state law or a subject that is strictly defined as being out of the federal court's jurisdiction, and there is enough guidance for the federal court to rule the same way the state courts would on the state claims, the federal court can hear the case. So, throwing in state claims may be enough to get it remanded once removed, but then again, it may not.

If you want to start playing around with FDCPA stuff Pro Se, watch out and get ready for Federal.

Edited August 29, 2012 by usagi555

[BV80]

Just to add something here, in order to validate a debt, all a CA or JDB is required to provide is the name of the original creditor and the amount of the debt. A JDB is not required to provide proof of ownership in response to a DV request.

[antiquedave]

I really am a fan of getting on board with a consumer attorney, they work on contingency, they pay the fees when they file and they are familiar with what has to be done, for most folks just starting out I'd say go that way and then get copies of everything once its done so you can see how your attorney did it and if you want to go down that road.

The other thing is that it hurts them more when they have to pay your attorney fees, and then there is the question of sending the its letter, and I have been reading about anti slapp policies, I am thinking that ITS letters are not the way to go and if yo have a legitimate violation to just serve them.

I know others who have done this pro se will chime in on that one, I have always worked with a consumer attorney, I figure my job is to document everything correctly so that he can do what he does best.

[Game Plan]

Thanks for all of the good advice given so far. I am a Texas resident but did not invoke any TFC 392 laws in any of my correspondence with the CAs. In hind sight I should have probably went the state law route instead of citing the FDCPA. In the end, going with a consumer protection attorney may be my best option if I can find on to take my case. I only have statutory damages so far but it would not hurt to consult with an experienced attorney. I have keep very good records and sent everything certified mail return receipted requested. I am 100% positive that I have them for FDCPA violations and don’t want to screw up my chances if this goes to court. Both of these accounts are far past the Texas SOL so I’m hoping the ITS letters make these bottom feeders go away. If not, I will talk with a professional before filing any complaints with the courts. Again, thank each of you for the advice.