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re: my FDCPA & FCRA case at small claim court transfered to Federal court by JDB's attorney !?


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While I was at court filing office, the clerk mentioned about Magistrate Judge, and something about everything now must go thru Magistrate Judge ?...

 

Can anyone tell me what is the function of this Magistrate Judge and now there are 2 judges on this case?

 

How is this going to affect me ?

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While I was at court filing office, the clerk mentioned about Magistrate Judge, and something about everything now must go thru Magistrate Judge ?...

 

Can anyone tell me what is the function of this Magistrate Judge and now there are 2 judges on this case?

 

How is this going to affect me ?

 

A magistrate judge is not an "Article III" judge. They are "hired" by the court, not appointed by the President. But they are judges nonetheless.

 

District judges often refer non-dispositive pretrial motions, discovery issues, etc., to the magistrate, so they can concentrate on the "important" stuff.

 

Federal district courts are very busy places. Read 28 U.S.C. 636. Also, don't be surprised if the court issues an order referring the case to mediation.

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If I really would like to bring the case back to small claim/ superior court, given they missed the 30days dealine AND the original set trial dtae is now less than 1 month,....

 

Just double check:

 

1. Is it a form I can fill out to remend my case ? ( they did so with filing a motion to move my case !) ??

 

2. Or if it takes to file a motion to remend, given the original set trial is less than 30 days away, Can I go for Ex parte motion? ( what statues, fed rules, local rules I need to satify to file for Ex parte motion )-- I know about the local rule 7-3 meet and confer, ( motion with deadline, meet & confer at least 5 days prior filing)

 

p.s. I don't think the opposite party will gives me a ok to shorten the time need to file a motion, ...so asking them is = waste of time, but I will need to comply the meet & confer in written mail, certified mail + signature return receipt.

 

Million thanks

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If I really would like to bring the case back to small claim/ superior court, given they missed the 30days dealine AND the original set trial dtae is now less than 1 month,....

 

We're on post #29 and as many or more on the "other" board on this same subject. Clearly, you're intent on filing a motion to remand. That would not be my advice to you but, in any case:

 

http://www.law.cornell.edu/uscode/text/28/1447

 

Google, Sample Motion to Remand, for some ideas.

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Gentlemen/ Ladies:

 

After sitting down  & refreshing my mind, reading many of your posting and suggestions, I believe, having the case trial at federal court may be a better choice than at small claim court.

 

Some of you suggested taking it to attorney, but as they also pointed out, may be difficult to have someone willing to take over the case, with some mess-up to correct.

 

Need assistance the following:

  1. I need help on drafting the complaint meeting the Federal court requirement. As soon as I came up with a draft, please free feel to comment.
  2. Someone mentioned to me that I may not have a personal standing on FCRA rules violation Vs. the JDB. Can anyone tell me if it is case / or I just need to kick it with a different twist.

 

Here is my FCRA issue:

 

The JDB entered 6 negative trade-lines at 3 different credit bureau(s) without notification to me, and refused to admit it.

 

--1681s-2(a) (7): Financial institution must provide notice to the consumer when submitting negative information(s) to credit rating agency, must be within 30 days, must be in it’s own mailing.

 

Am I wrong in using:

 

  § 616. Civil liability for willful noncompliance [15 U.S.C. § 1681n]

(a) In general. Any person who willfully fails to comply with any requirement imposed

under this title with respect to any consumer is liable to that consumer in an amount

equal to the sum of

(1) (A) any actual damages sustained by the consumer as a result of the failure or

damages of not less than $100 and not more than $1,000; or

(B) in the case of liability of a natural person for obtaining a consumer report

under false pretenses or knowingly without a permissible purpose, actual

damages sustained by the consumer as a result of the failure or $1,000,

whichever is greater;

(2) such amount of punitive damages as the court may allow; and

(3) in the case of any successful action to enforce any liability under this section, the

costs of the action together with reasonable attorney's fees as determined by the court.

(B)Civil liability for knowing noncompliance. Any person who obtains a consumer report

from a consumer reporting agency under false pretenses or knowingly without a permissible

purpose shall be liable to the consumer reporting agency for actual damages

sustained by the consumer reporting agency or $1,000, whichever is greater.

© Attorney's fees. Upon a finding by the court that an unsuccessful pleading, motion, or

other paper filed in connection with an action under this section was filed in bad faith or

for purposes of harassment, the court shall award to the prevailing party attorney's fees

reasonable in relation to the work expended in responding to the pleading, motion, or

other paper.

 

§ 617. Civil liability for negligent noncompliance [15 U.S.C. § 1681o]

(a) In general. Any person who is negligent in failing to comply with any requirement

imposed under this title with respect to any consumer is liable to that consumer in an

amount equal to the sum of

(1) any actual damages sustained by the consumer as a result of the failure; and

(2) in the case of any successful action to enforce any liability under this section, the costs

of the action together with reasonable attorney's fees as determined by the court.

(B)Attorney's fees. On a finding by the court that an unsuccessful pleading, motion, or other paper filed in connection with an action under this section was filed in bad faith or for purposes of harassment, the court shall award to the prevailing party attorney's fees

reasonable in relation to the work expended in responding to the pleading, motion, or

other paper.

 

Also, I am somewhat worried about the Attorney’s fee ( highlighted in different color portion) Can anyone gives me any feedback?

 

If I don’t have a personal standing to use 616 & 617, which rules should I use for getting damages?

 

Million thanks

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I would contact at least 5 consumer lawyers about your case.  I contacted 6 before I found the right one, even though my situation was completely different from yours.  Although many lawyers don't like to take over a pro se case, you may find one willing to take your case.  At the very least, you should be able to find one who can tell you if you have a valid claim.  There are a LOT of consumer lawyers in the greater L.A. area.

 

Before you filed your FDCPA/FCRA claim, you should have thoroughly researched, planned and prepared your case.

Yes, you could be hit with attorneys' fees for bringing a case in bad faith under 1692K, depending on the facts. You could be hit with Rule 11 sanctions.  You could certainly be liable for the other side's costs under Rule 54, if you lose.  I don't know how likely any of that is to happen, but it's a possibility.  Particularly for an inexperienced pro se litigant. 

 

Again, try to find a lawyer to represent you, or to at least advise you about the validity of your claim.  Jumping from that "other board" to this board to pick up advice is not the best way to proceed with a case in federal district court.

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@ debtzapper:

 

I understood your recommendation "getting a attorney". As you also pointed out, you contacted 6 before you got 1.

 

But it is also the fact that I am the person who face the lawsuit, I have a responsibility to understand, to deal with, and to face the consequence/ result of the lawsuit, not the lawyer.

 

This is the reason why I am doing what I am doing. You brought up the "issue" that "from other board", I don't have any intention to name or advertise "the other board" at this forum here, in fact I never mentioned it. It just that I need to ask as many people as possible, hoping to get a better understanding, that's all.

 

In fact, you also read posting over there, right !

 

Hope you understand, and if I offend you in any way, I apologize.

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