FDCPA violations -- how to start a suit

[jdfkl]

Is there a thread out there which outlines step-by-step how to initiate an FDCPA lawsuit?

 

I'm in U*tah.  I have so many violations that I'd like to initiate suits on, but I'm not sure how to --- and it feels like the opportunities to fight back are slipping through my fingers as SOL's are coming up.

 

 

What do I do?

 

-an ITS?  (if so, what do I write?)

 

-file a complaint? (do I have to pay for service? or can I serve via mail or email?)

 

 

Thoughts would be welcome here, since one of first SOL's is coming up this week.

 

Thanks!  

[ArtVandelay]

Too late for ITS. Your best bet is to find an attorney so you can get things rolling. Use the searches I listed on your other thread.

[jdfkl]

Thanks, Art, I will look at those.

 

I do have other violations without a quite-so-tight time frame.  

 

Would I start with an ITS on those?

[admin]

You don't need an attorney, you can do this yourself.  What are your violations?

 

It's also hard to answer some of your questions because we don't know which state you live in.  

[Guest usctrojanalum]

Research everything, especially the expenses.  Filing lawsuits are not free.  Expect to lay out $200-$500 per lawsuit depending on the schedule of fees within the Court you sue the defendant in.

[jdfkl]

Thanks, Admin, I wrote U*tah above. [i'm paranoid of my opponent searching me out (Coltfan's recent case really got to me).]

 

 

I'm fighting a JDB.

 

The violation I'm pursuing at the moment is their filing a suit after I had elected arbitration.  I'm using their filing date as the SOL.  This is the one with the tight deadline.

 

Also, I dv'd them, and they never responded.  I wouldn't know what SOL date to attach to that failure.  I dv'd them a couple of months before they filed suit.

 

Since then, and after several opportunities to object to my agreement version, they have recently argued that a dinosaur agreement (unsupported) is correct.  (They only want to use it because it names AAA, not JAMS -- after we have been ordered into JAMS). 

 

 

Thanks for input.  (You all are the best --- I would have been bankruptcy toast forever ago without you!)

 

 

 

 

 

[ArtVandelay]

I suggest using an attorney when dealing with FDCPA cases, unless you just really get a kick out of a lot of extra legal work and risk. This is coming from someone who doesn't mind going Pro Se when defending myself in local court.

 

Here a few things to consider. 

 

1. Do you have a solid case? An experienced FDCPA attorney will be able to tell you this in a few minutes after reviewing your paperwork and/or messages. Sometimes you may think you have a slam dunk case and it may not be that easy. Other times you may think you have very little and the attorney will find things you overlooked.

 

2. Do you have the money to spend up front? Many attorneys will pay your filing fees and expenses up front. The average cost just to file the claim will be around 350.00, plus other expenses that can run another 100.00 or so. Either way you will get these fees refunded by the other side as long you win.

 

3. The Federal Courts are not as lenient with you as dealing with a General Sessions type court. You better know exactly what you are doing when it comes to filing each form and how to respond to opposing council. Most of the time you will be dealing with a law firm that represents the insurance company of the defendant. Many of these are upper level attorneys from major firms. They are not the bottom of the barrel attorneys that earn a living by counting on default judgments like we normally encounter.

 

4. If you do decide to go Pro Se what is the upside? A typical settlement will get you 1000.00, plus pay your attorney fees and expenses. How much more do you think you can get doing it yourself? 

 

5. Will the other side take you more seriously than attorneys they are used to dealing with? Some may if your case is strong enough, but I'm guessing they will fight you harder without an attorney.

 

I have no experience dealing with the ITS methods, so you need to ask others about this. I have settled a couple before filing, but these were associated with other cases that I already had in the works.

 

Good Luck!

[debtzapper]

I agree with Art.  If you win, your lawyer does the work, you sign the check.   And the JDB gets hit twice : he pays you damages and he pays your attorneys' fees.   Often, if you have a lawyer who has dealt with your defendant's general counsel, a settlement can be pre-litigated.  That happened with me.  But I had to try 6 lawyers before I found the right one, and the one I used was from out-of-state. 

 

If you cannot find a consumer lawyer to represent you at www.attorneysforconsumers,com   come back here again.  Or try www.debtorboards.com  

[BV80]

@

 

Another suggestion would be to get a Pacer account and look up FDCPA lawsuits in your district.  You could download a few of them and get an idea on how to proceed. 

[Guest usctrojanalum]

You can also try squeezing them by drafting a summons and complaint, and sending them ITS letter.  In the latter state the attached summons and complaint will be filed on this date if we do not reach a mutually agreeable settlement.  If they ignore the ITS, just make sure you file it though.

[BV80]

I like USC's suggestion.  After you've researched how to write an FDCPA complaint, an ITS might be a good thing to do.   I think it's a good idea to show a court that you've done everything possible to avoid a lawsuit.  It's the other party that won't cooperate.

[Lincoln Lark]

@

 

Another suggestion would be to get a Pacer account and look up FDCPA lawsuits in your district.  You could download a few of them and get an idea on how to proceed. 

I would do this.   Just look at what worked and do that.  Or call the lawyers that filed the lawsuits that won and see if they will take your case. 

[debtzapper]

If you must go pro se, See under "Resources" on this board "Guide to filing in fed dist court." It's for NY fed dist court, but should essentially apply to you. Also, check your local fed dist court website.  Should have advice on filing pro se. See also your own local rules of court.  Know  the Federal Rules of Civil Procedure and Fed. Rules of Evidence. 

 

Spend time in a law school library if one is nearby, or in the law section of a college library.  If you google "ITS letter," you will get a few hits. 

 

 Under Artvandelays name, he has some links on how to find cases, then look them up on PACER.

 

But remember to study and research first.  You are going up against a company that is used to suing and being sued.

 

Also, if you lose, you will liable for the other side's court costs.

[neweuquol]

I like USC's suggestion.  After you've researched how to write an FDCPA complaint, an ITS might be a good thing to do.   I think it's a good idea to show a court that you've done everything possible to avoid a lawsuit.  It's the other party that won't cooperate.

I rarely ever threaten to file suit.   When I accept a case I merely file suit then send a letter (usually fax) that says "here is a lawsuit filed against you.  If you want to avoid further litigation costs, please contact me to discuss settlement.   If I do not hear from you within 10 days, I will assume you are not interested in resolving this matter, I will proceed to have you formally served."

 

I find pre-litigation demands go into the junk pile and are largely ignored.

[Credator]

I agree with AV post #7.

 

I have never settled without filing a complaint in court or a claim with an arbitration forum. It is often years before I get a settlement or win (non-FDCPA) disputes. ITS for FDCPA has produced nothing I would call success as far as a settlement. OTOH I view all communication as intelligence so if I can elicit a response I consider that positive even if it fails to lead to a settlement on the spot.

 

An attorney brings leverage to you and ri$k to opposing. I would work hard to find a competent attorney that is confident enough in the case that they are willing to front costs. Then, after I had them under written contract, I would want to manage that attorney like it was my own case (because it is).

 

Pro Se FDCPA pursuit might make sense if perhaps one wanted to get their name in the court record to perhaps discourage other predators from harassing them. Or perhaps they are confident they have a solid case but cannot find a acceptable consumer attorney to handle it.

 

 

I rarely ever threaten to file suit.   When I accept a case I merely file suit then send a letter (usually fax) that says "here is a lawsuit filed against you.  If you want to avoid further litigation costs, please contact me to discuss settlement.   If I do not hear from you within 10 days, I will assume you are not interested in resolving this matter, I will proceed to have you formally served."

 

I find pre-litigation demands go into the junk pile and are largely ignored.

 

Having had an issue with a service ducking attorney on an FDCPA complaint *I* would be a little concerned noticing them of the threat of service. Not a huge deal especially if I had an attorney fronting costs and using their goto process server but not fun if it is your scarce dollars being spent on additional service of process fees.  That said, I think this approach has a lot of merit. The court costs are already spent and naturally would be expected to be returned upon any settlement.

 

I had a DC attorney (their client ended up writing me a check) tell me that they ignore ITS letters from consumers. They only respond to court and arbitration filings. After I was able to secure an arbitration file # I was able to get them to call me.

[BV80]

I rarely ever threaten to file suit.   When I accept a case I merely file suit then send a letter (usually fax) that says "here is a lawsuit filed against you.  If you want to avoid further litigation costs, please contact me to discuss settlement.   If I do not hear from you within 10 days, I will assume you are not interested in resolving this matter, I will proceed to have you formally served."

 

I find pre-litigation demands go into the junk pile and are largely ignored.

 

I have never sent an ITS either, and I'm not arguing for or against it.   We have told those who have to decided to do so that they better follow through if they send such a letter.   If they don't intend to follow through, don't send it.

 

It's possible that some people choose to send an ITS because they can't afford filing fees in their court.  They're hoping the CA/JDB will go ahead and settle. 

 

I don't know if it works or not.  But, if one sends an ITS, then follows through with a suit if the CA/JDB doesn't respond, no harm has been done.  In fact, one could argue that he sent an ITS in order to avoid involving the courts in any way at all.