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Preparing to sue Asset


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Here's the relevant info: http://www.creditinfocenter.com/community/topic/313336-asset-responds-to-dv-i-roflmao/

 

It's on.  Total War.  I'm preparing the first strike.

 

The way I see it, I have two FDCPA violations on them: attempting to collect a debt before responding to a validation dispute (one phone call, one 'discount settlement' letter).  I'm going to file federal and this will be my first time doing it.  I apologize in advance for being really noobish, but I would be grateful if any of you fine folk could point me in the right direction toward resources on creating a complaint and summons.  There are some other things to consider as well.  I disputed with all 3 CRAs and they report it as verified, so should I be sending them any sort of strongly worded letters at this point?  Per the old thread, Asset sent me someone elses private information. Any angle on that aside from listing it in the complaint?

 

 

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Litigating in federal district court is not to be taken lightly.  Also, you are going up against a corporation that is used to suing and being sued.  They are experienced.  You are not, and they know you are not.  If you have a solid case, you should be able to find a consumer lawyer on www.naca.net  to represent you. If not, try www.attorneysforconsumers.comwww.lemberglaw.com

 or www.krohnandmoss.com   They do the work, you cash the check.  Plus the debt collector has to pay your attys fees if you win, so you've cost them even more money.  Remember too, that if you lose, you will be liable for their costs. 

 

Yes, I know there are some successful pro se litigants, including some on this forum.  But it requires a lot of knowledge, preparation and determination. 

 

Find out what sections of the FDCPA you think they have violated, and do a Google Scholar search for those sections of the Act.  Then look up some of the cases, preferably from your circuit, on PACER.  You can read actual complaints, answers, motions, memoranda, etc.  Also, your own fed dist court has a website that gives general guidance for pro se litigants.  You should familiarize yourself with the Fed Rules of Civ Proc, Fed Rules of Evid, and federal pleading and practice, all of which you can study in a law or university library and on line.

 

Now you will be in a better position to decide if you want to go it alone.

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Debt, thank you for the info.  I'm doing all of my homework and looking before the leap.  Studying the rules/case law, memorizing everything, planning an offense and executing it in front of a judge are things that actually get me going.  There's no fear or waver on this end.

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I think your model complaint would be the FTC v. Asset, the complaint is on line. Asset lost, of course.

 

I've read the consent decree and--big suprirse--they have violated it as well.  The first contact to me was a letter from an in-city bottom feeder law firm that stated they represented AA.  Funny thing is they didn't include any of the mandated language required by the consent decree.  They were (at the time) in the middle of a class action suit over robo-signing thousands of affidavits.  I mentioned the consent decree violation as well as my enthusiastic interest in the status of their lawsuit in my response.  Never heard from them again.

 

Just another recommendation for regulatory consideration: if a CA or Attorney is no longer representing or acting on behalf of/assign for the JDB, they should be required to notify you in writing within 30 days or be open to litigation.  I won't hold my breath.

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Sal,

 

PM with your email address, I've got two fresh federal complaints I can forward you, 8th CIR geared but the federal rules are across the board.  However, do make sure you check out your courts local rules.  Mine had it on their website.   There was nothing really all that big of a deal but thre were some minor additions this judge required in their court.  

 

And sorry new posters or lurkers, please don't send me a PM requesting the pleadings, nothing personal, I just keep it to members and people I know.  Plus my complaints start out in complete attack mode (which is not required and probably not recommended) and if you don't know what you're doing you can get yourself in a lot of trouble pleading certain things you better be able to prove and back up or defend.

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A little birdie told me that as soon as AA is served, their Insurance (think another word for a tourist) will be notified and you usually receive a call within 48 hours from an adjuster. He is going to want to get you to divulge everything you have so he can decide if you have a meritorious claim. You can just tell him to stuff it and he can learn what you have from discovery. The next step they take is hiring an FDCPA lawyer to defend the case and remove to Federal Court if you filed in State. This lawyers first task after removal is to call you and tell you how tough it is in Federal Court and you should just dismiss and go away. This is usually where you turn the tables on them, telling them you are well versed in The Federal Rules of Civil Procedure and have no concern proceeding. The next step is to make a settlement offer to close the case. Said settlement offer will not include an Offer of Judgement at this point, so you need to decide to take them or press forward like ColtFan.

 

I would always file in State Court since it is cheaper than Federal and they will remove, this gives me the chance to throw the lawyer for a loop when he calls me. I am even bold enough to tell him I would have filed in federal, however it was cheaper in state and your client always removes, so why should I pay the higher fees?

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Sal,

 

PM with your email address, I've got two fresh federal complaints I can forward you, 8th CIR geared but the federal rules are across the board.  However, do make sure you check out your courts local rules.  Mine had it on their website.   There was nothing really all that big of a deal but thre were some minor additions this judge required in their court.  

 

And sorry new posters or lurkers, please don't send me a PM requesting the pleadings, nothing personal, I just keep it to members and people I know.  Plus my complaints start out in complete attack mode (which is not required and probably not recommended) and if you don't know what you're doing you can get yourself in a lot of trouble pleading certain things you better be able to prove and back up or defend.

Have to agree on this. Where we freely help those who are defending it would be bad to all of us if a newbie or lurker used some complaint cut and paste style and lost badly in federal court it would abrogate every good ruling pro pers have gotten because it would be the thing the federal judge would point to.

 

It is one thing to help get money taken away it is quite another for someone to get a payday off of something someone did a lot of research for. However, we stand ready to discuss the federal authorities necessary to win the day, You see if ALL of  us are on the same page then they will really be impacted because then all of us can exclude ourselves from class action and hammer the F out of them.

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Have to agree on this. Where we freely help those who are defending it would be bad to all of us if a newbie or lurker used some complaint cut and paste style and lost badly in federal court it would abrogate every good ruling pro pers have gotten because it would be the thing the federal judge would point to.

 

It is one thing to help get money taken away it is quite another for someone to get a payday off of something someone did a lot of research for. However, we stand ready to discuss the federal authorities necessary to win the day, You see if ALL of  us are on the same page then they will really be impacted because then all of us can exclude ourselves from class action and hammer the F out of them.

I would like to look at them for a different reason. Arizona and a bunch of other states use ther federal rules in civil cases, so I want to develope some cross complaint issues using the rules. I think that would be a "Fair use" maybe just pm me the causes of action and rule numbers.

 

Oh and the called you a "Baiter" But it seems to me they were trying to use half a word that is typically used in reference to them.

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I'm just looking to expand my sphere of information.  Links, relevant case law, etc.  I've got Civ Proc. study materials, flash cards, and I'm generally speaking what you would call a "bright" individual.  I'm not trolling for crap to cut and paste--rather I'm looking for navigational guidance from folks who have been through the circus already.  And of course, you guys have been incredibly helpful and I appreciate your willingness to even acknowledge my posts.  Father-in-law is partner at an out-of-state firm in a different field of law but he has also been incredibly helpful.  The more knowledge I have, the better.

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You said you have two violations on them.  I assume you know that statutory damages under the FDCPA are limited to a max of $1,000 per lawsuit, not per violation.  "Reed v, Budzik & Dynia," (E.D. Mo. 2012), quoting "Wright v. Fin. Serv. of Norwalk, "(6th Cir. 1994).  

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  • 2 weeks later...

Didn't want to leave you all high and dry.  I'm trying to get my file back from an attorney who was kind enough to review all my notes/docs/etc.  Thank you all again for your help--some of you have been killer resources.  I'm shooting to have a 1st draft of complaint within the next week.

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This is in regard to the discount settlement letter.   In Cruz v. International Collection Corp., the 9th Circuit Court of Appeals quoted Clark v. Capital Credit & Collection Services, Inc.:

 

Further, the FDCPA prohibits contacting a debtor who has "notified a debt collector in writing that the consumer refuses to pay a debt. . . ." irrespective of whether the statement is false under state law or otherwise. 15 U.S.C. § 1692c©. There are three limited exceptions to this prohibition. Id. As this court has explained, those exceptions are:

    (1) to advise the consumer that the debt collector's further efforts are being terminated; (2) to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or (3) where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.

 

The court then stated, "A settlement offer is an example of a "specified remedy."  At that point, they referenced Lewis v. ACB Business Services from the 6th Circuit Court of Appeals 'holding that a letter that "can be construed as a type of settlement offer' fell within the exception in § 1692c©(2)."

 

In Snyder v. Gorder, the WA District Court referenced the Cruz case from the 9th Circuit. 

 

The statute provides an exception to the "no-contact" rule where the debt collector intends to "notify the consumer that the debt collector . . . intends to invoke a specified remedy." The Ninth Circuit has held that a settlement offer falls under the "specified remedy" exception.  Cruz v. Int'l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012).

 

Just thought you needed to be aware of this and check it out.

 

 

 

 

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