qbert

Does ITS letter really work to get midland off of your credit report?

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That is the credit repair version of the "legal nut case letter" where you throw a heavy ball at them and hope they strike out and you get the removals.  As with ANYTHING in credit repair there are NO guarantees and YMMV.

 

Keep in mind that on that board that you posted the link to they are all about making bad entries disappear so that new credit can be obtained to start over.  You have NO WAY to prove that what someone is posting is true.  There is NO guarantee that ANY method other than time and paying on time will clean up your credit. 

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If you think you have FDCPA violations find an attorney with FDCPA experience. They will tell real quick if you have a case. Most of these attorneys will only take a case if they are sure of a win/settlement. Most of them will also pay your filing fees. If you win the JDB will pay your filing and attorney fees. You may or may not get any $$$, but this will make them go away for good. 

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wierd, link works for me.

 

heres some of the violations we share:

 

Midland Funding, LLC violates FDCPA 15 USC 1692e(8) by communicating credit information which is known or which should be known to be false, by reporting the account as “Type Of Account: Open Account” on my EQUIFAX credit report.

 

Midland Funding, LLC violates FDCPA 15 USC 1692e(10) by using any false representation or deceptive means to collect or attempt to collect any debt by reporting the account as an “Type Of Account: Open Account” on my EQUIFAX credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692f by using unfair or unconscionable means to collect or attempt to collect any debt by reporting the account as “Type Of Account: Open Account” to deceive current and potential creditors and to negatively impact my EQUIFAX credit scores.

Midland Funding, LLC violates FCRA 15 U.S.C. § 1681s-2 (a)(1)(A) for knowingly reporting inaccurate information to a consumer reporting agency “Type Of Account: Open Account” on my EQUIFAX credit report.

 

With respect to the “Type Of Account: Open Account” notation on my EQUIFAX report: I do not have any known type of agreement or contract in writing or otherwise with Midland Funding, LLC, or the alleged original creditor that creates or procures any type of “Open Account”. A revolving line of credit is known as an "Open-ended account where there is a possibility on continuing transactions", and being that this is a collection account, there can be no “open-ended” account terms.

 

and more of a stretch:

 

 

Midland Funding, LLC violates FDCPA 15 USC 1692e(2)(A) by falsely characterizing the account as “Past Due: $11,132.00” on my EQUIFAX credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692e(8) by communicating credit information which is known or which should be known to be false, by reporting the account as “Past Due: $11,132.00” on my EQUIFAX credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692e(10) by using any false representation or deceptive means to collect or attempt to collect any debt by reporting the account as an “Past Due: $11,132.00” account on my EQUIFAX credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692f by using unfair or unconscionable means to collect or attempt to collect any debt by reporting the account as “Past Due: $11,132.00” to deceive current and potential creditors and to negatively impact my EQUIFAX credit scores.

Midland Funding, LLC violates FCRA 15 U.S.C. § 1681s-2 (a)(1)(A) for knowingly reporting inaccurate information to a consumer reporting agency “Past Due: $11,132.00” on my EQUIFAX credit report.

With respect to the “Past Due: $11,132.00” notation on my credit reports: I do not have any known type of agreement or contract in writing or otherwise with Midland Funding, LLC, or the alleged original creditor that creates or procures any type of “Past Due” amount owed
.

 

and

 

Midland Funding, LLC violates FDCPA 15 USC 1692e(2)(A) by falsely characterizing the account as “Date Major Delinquency first Reported: 7/2009” on my EQUIFAX credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692e(8) by communicating credit information which is known or which should be known to be false, by reporting the account as “Date Major Delinquency first Reported: 7/2009” on my EQUIFAX credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692e(10) by using any false representation or deceptive means to collect or attempt to collect any debt by reporting the account as an “Date Major Delinquency first Reported: 7/2009” account on my EQUIFAX credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692f by using unfair or unconscionable means to collect or attempt to collect any debt by reporting the account as “Date Major Delinquency first Reported: 7/2009” to deceive current and potential creditors and to negatively impact my EQUIFAX credit scores.

 

and

 

Midland Funding, LLC violates FDCPA 15 USC 1692e(2)(A) by falsely characterizing the account as “Terms: 1 Month” on my EXPERIAN credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692e(8) by communicating credit information which is known or which should be known to be false, by reporting the account as “Terms: 1 Month” on my EXPERIAN credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692e(10) by using any false representation or deceptive means to collect or attempt to collect any debt by reporting the account as “Terms: 1 Month” on my EXPERIAN credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692f by using unfair or unconscionable means to collect or attempt to collect any debt by reporting the account as “Terms: 1 Month” to deceive current and potential creditors and to negatively impact my EXPERIAN credit scores.

Midland Funding, LLC violates FCRA 15 U.S.C. § 1681s-2 (a)(1)(A) for knowingly reporting inaccurate information to a consumer reporting agency “Terms: 1 month” on my EXPERIAN credit report.


With respect to the "Terms: 1 month" notation on my EXPERIAN report: I do not have any known “Terms: 1 month” agreement or contract in writing or otherwise with Midland Funding, LLC, or the alleged original creditor. However, EXPERIAN seems to update every month with “KD” [key derogatory] notation in the monthly status field of this account, which to me seems to be based on the “Terms: 1 month” field. This seems to permit this collection account to not properly age, as every month this collection account looks to be reported as more recent than it really is, further impacting my credit score from EXPERIAN.


Midland Funding, LLC violates FCRA 15 U.S.C. § 1681s-2 (a)(1)(A) for knowingly reporting inaccurate information to a consumer reporting agency “Date Major Delinquency first Reported: 7/2009” on my EQUIFAX credit report.


With respect to the “Date Major Delinquency first Reported: 7/2009” notation on my credit reports: I do not have any known type of agreement or contract in writing or otherwise with Midland Funding, LLC, that creates or procures any type of “Date Major Delinquency first Reported”. This date of 07/2009 is reporting after the alleged "Open Date: 04/2009" with Midland Funding, LLC implying that I have a credit type of account that directly defaulted with Midland Funding, LLC which is clearly not the case, and would surely be inconsistent with the alleged original creditors "Date Major Delinquency first Reported" date if one even actually exists. Midland Funding, LLC violates FDCPA 15 USC 1692e(2)(A) by falsely characterizing the account as “Type: Installment” on my EXPERIAN credit report.

 

in this case i have reports where 'major delinquency first reported' is off by over 2 years

 

and

 

Midland Funding, LLC violates FDCPA 15 USC 1692e(2)(A) by falsely characterizing the account as an “Collection account. $11,132.00 past due” on my EXPERIAN credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692e(8) by communicating credit information which is known or which should be known to be false, by reporting the account as “Collection account. $11,132.00 past due” on my EXPERIAN credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692e(10) by using any false representation or deceptive means to collect or attempt to collect any debt by reporting the account as an “Collection account. $11,132.00 past due as of March 2012.” account on my EXPERIAN credit report.

Midland Funding, LLC violates FDCPA 15 USC 1692f by using unfair or unconscionable means to collect or attempt to collect any debt by reporting the account as “Collection account. $11,132.00 past due” to deceive current and potential creditors and to negatively impact my EXPERIAN credit scores.

Midland Funding, LLC violates FCRA 15 U.S.C. § 1681s-2 (a)(1)(A) for knowingly reporting inaccurate information to a consumer reporting agency “Collection account. $11,132.00 past due” on my EXPERIAN credit report.


With respect to the “Collection account. $11,132.00 past due” notation on my credit reports: I do not have any known type of agreement or contract in writing or otherwise with Midland Funding, LLC, or the alleged original creditor that creates or procures any type of “Past Due” amount owed. Reporting this collection account “Past Due” for the full amount of the alleged “Credit Limit” is an obvious attempt to further damage my credit report by showing “100% Utilization” of a credit line that may not even legitimately exist.

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@qbert

 

There's no telling why some links don't work for me.  I don't question it anymore.  I'm just glad the darn computer doesn't blow up when I turn it on.

 

With respect to the “Type Of Account: Open Account” notation on my EQUIFAX report: I do not have any known type of agreement or contract in writing or otherwise with Midland Funding, LLC, or the alleged original creditor that creates or procures any type of “Open Account”. A revolving line of credit is known as an "Open-ended account where there is a possibility on continuing transactions", and being that this is a collection account, there can be no “open-ended” account terms.

 

Midland is not saying you have an open account with them.  "Type of account" is the kind of account it was when the account was opened with the OC.

 

 

With respect to the “Past Due: $11,132.00” notation on my credit reports: I do not have any known type of agreement or contract in writing or otherwise with Midland Funding, LLC, or the alleged original creditor that creates or procures any type of “Past Due” amount owed.

 

Is the account yours?

 

 

With respect to the "Terms: 1 month" notation on my EXPERIAN report: I do not have any known “Terms: 1 month” agreement or contract in writing or otherwise with Midland Funding, LLC, or the alleged original creditor. However, EXPERIAN seems to update every month with “KD” [key derogatory] notation in the monthly status field of this account, which to me seems to be based on the “Terms: 1 month” field. This seems to permit this collection account to not properly age, as every month this collection account looks to be reported as more recent than it really is, further impacting my credit score from EXPERIAN.

 

I'm not sure what the 1 month term means.  Credit card accounts are paid every month.  They're not like a loan in which you have a specific time for repaying.  The "1 month" could be because it was a credit card account that on which payment was supposed to be made each month.

 

 

Midland Funding, LLC violates FCRA 15 U.S.C. § 1681s-2 (a)(1)(A) for knowingly reporting inaccurate information to a consumer reporting agency “Date Major Delinquency first Reported: 7/2009” on my EQUIFAX credit report.


With respect to the “Date Major Delinquency first Reported: 7/2009” notation on my credit reports: I do not have any known type of agreement or contract in writing or otherwise with Midland Funding, LLC, that creates or procures any type of “Date Major Delinquency first Reported”. This date of 07/2009 is reporting after the alleged "Open Date: 04/2009" with Midland Funding, LLC implying that I have a credit type of account that directly defaulted with Midland Funding, LLC which is clearly not the case, and would surely be inconsistent with the alleged original creditors "Date Major Delinquency first Reported" date if one even actually exists. Midland Funding, LLC violates FDCPA 15 USC 1692e(2)(A) by falsely characterizing the account as “Type: Installment” on my EXPERIAN credit report.

 

 Date major delinquency first reported is just that.  It's when the credit card company first reported the delinquency to the CRAs.
 

in this case i have reports where 'major delinquency first reported' is off by over 2 years

 

You can dispute it, but that date doesn't affect when the account will fall off your CR.

 

With respect to the “Collection account. $11,132.00 past due” notation on my credit reports: I do not have any known type of agreement or contract in writing or otherwise with Midland Funding, LLC, or the alleged original creditor that creates or procures any type of “Past Due” amount owed. Reporting this collection account “Past Due” for the full amount of the alleged “Credit Limit” is an obvious attempt to further damage my credit report by showing “100% Utilization” of a credit line that may not even legitimately exist.

 

 

Past due for the full amount is not inaccurate.  When the account was closed or charged off, the full balance became due.

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After reading that I'm going to pull back on what I suggested in post #4. Of course we don't know your details, but most of what is in that letter is a stretch. If that person is still within the SOL they may be stirring up a hornet's nest. If you are dealing with something like identity theft I say go for it, but if you are not I would be cautious. 

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are you saying that is a board for scammers?

 

Not scammers though some probably are.  They are simply seeking new credit lines after having bad credit for what ever reason.  They are touting their "methods" of trade line removal that may or may not work.  There is no magical method that is guaranteed to repair bad credit.  The ONLY guaranteed method is paying on time and TIME for entries to no longer report.  Beyond that if something works:  great but don't get your hopes up.

 

In your situation of sending and ITS letter:  do you know how many of those threats creditors get on a daily bases and what small (as in teeny tiny) percentage actually follow through?  It is not different than saying "don't bother suing me because I will declare BK."  Until you actually declare and file it is an empty threat and they are wise to continue with the suit on the chance you don't do it or don't qualify.  

 

The second problem with a lawsuit is MOST of what consumers believe is a violation is VERY borderline or isn't.  @BV80 has already pointed out six examples of issues you thought were errors and are not.  Issuing a threat you cannot follow through on is pointless.  

 

Last:  you cannot use your credit reports as evidence so if you are going to sue what independent proof do you have to sustain your case because the reports are hearsay.  

 

@ArtVandelay suggestion that you consult a consumer attorney is an excellent one.  Because if you file a frivolous case not only could you end up with the debt still on your credit report but paying their attorney fees as well.  It cost someone on another board $32k to the attorney for the defendant they sued and now they have their hopes pinned on a federal appellate panel over turning a judge who has NEVER been over turned in the two similar cases in her career.  She also has one of the best records with the appellate court.  

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I use ITS to collect information when I am more than ready and able to file a lawsuit, should it come to that. If an ITS can be used for credit cleanup that would be a nice benefit. I would view sending an ITS letter as part of an overall litigation strategy and would not send one unless I was ready and able to follow through with a lawsuit. An ITS letter is not a trivial thing to do IMHO.

 

As far as sanctions and attorney fees being awarded against a pro se in a lawsuit that alleges FDCPA violations I don't recall reading much, if any of those cases. There seems to be a lot of allusions to such cases on forums. Perhaps someone could provide links to 5 or 6 opinions where the pro se had filed frivolous, harassing, or bad faith FDCPA claims and in return they received an adverse judgment inclusive of attorney fees. My thinking is it would be so obvious what they did wrong it would be instructive only to the greenest of alleged debtors. Not a bad thing at all IMO. I believe everyone would likely benefit from reading cases applicable to their situation and jurisdiction.

 

Of course as far as a consumer (presumably FDCPA) case still up on appeal, unless one has a crystal ball, I would suggest we reserve judgment until the facts are in and all the appeals are exhausted and ruled on.

 

If someone has an attorney representing them on their FDCPA claims it would be hoped that the bar member would refuse to file or litigate marginal or non-violation statutory claims in court on behalf of that consumer which could result in an award of significant attorneys fees against the consumer.

 

Marx v. General Revenue Corp. is not appropriate fodder as an example of the risks of filing harassing or bad faith FDCPA claims IMHO Marx also did not involve attorney fees.

 

IMO it is important to know what you are doing and execute with precision or seriously consider getting professional help. If I have FDCPA claims an I cannot find a competent winning consumer attorney to take the case on contingency I would proceed with all due caution, if at all.

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@Credator

 

Simmons v. Roundup Funding, LLC,(2nd Cir. 2010)

Ceresko v. LVNV (9th Cir. 2012)

Smith v. Argent (10th Cir. 2009)

Andersen v. State Collection Service, Inc. (WI Court of Appeals, 2012)

Adams v. Bureau of Collection Recovery (ED MI, 2011)

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@BV80

@Credator

 

Simmons v. Roundup Funding, LLC,(2nd Cir. 2010)

Ceresko v. LVNV (9th Cir. 2012)

Smith v. Argent (10th Cir. 2009)

Anderson v. State Collection Service, Inc. (WI Court of Appeals, 2012)

Adams v. Bureau of Collection Recovery (ED MI, 2011)

Thanks.

 

Nothing too exciting in the list that should concern an experienced litigant but perhaps my notes can provide a lead for someone just starting to think about filing an FDCPA claim.

 

Cites from Simmons v. Roundup Funding, LLC,(2nd Cir. 2010) {Probably good for people in BK and contemplating an FDCPA claim to be aware of.}

Federal courts have consistently ruled that filing a proof of claim in bankruptcy court (even one that is somehow invalid) cannot constitute the sort of abusive debt collection practice proscribed by the FDCPA, and that such a filing therefore cannot serve as the basis for an FDCPA action.
- in IN RE CLAUDIO, 2012 and 6 similar citations

 

The Second Circuit held that the debtors had no FDCPA claim, stating that "[t] here is no need to protect debtors who are already under the protection of the bankruptcy court, and there is no need to supplement the remedies afforded by bankruptcy itself."
- in Simon v. FIA CARD SERVICES, NA, 2013 and 2 similar citations

 

RESULTS

For the foregoing reasons, we affirm the district court's dismissal of the Simmons's claim, vacate the grant of attorneys' fees and costs related to the motions to dismiss, and grant Malen and Roundup reasonable costs of this appeal.

 

 Ceresko v. LVNV (9th Cir. 2012)  {Hire competent winning consumer attorneys - check 9th Cir, R. 36-3 before citing - Cooter (See link in dissent) might be controlling outside the 9th Circuit}

Ceresko's counsel "suffered the same result in three previous lawsuits . . . involving different plaintiffs making the same claim: that an allegation or prayer for relief for costs and fees in a state court collection action is a false statement in violation of the FDCPA";

 

[*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

 

At least one judge agreed with the consumer in the unpublished case:

Because the district court's findings were based on clear errors and its analysis of the controlling cases consisted of repeated errors of law, its award of attorneys' fees and costs against Ceresko was clearly erroneous and constituted an abuse of discretion. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

Smith v. Argent (10th Cir. 2009) {Could not readily locate online, so no insights gleaned. Is cited in Manx CoA 10th Circuit }

When a defendant prevails and the court finds that the suit was brought in bad faith and for the purpose of harassment, then (in the court's discretion) that defendant may also recover attorney's fees. Smith v. Argent Mortg. Co., 331 Fed.Appx. 549, 559 (10th Cir.2009)

Anderson v. State Collection Service, Inc. (WI Court of Appeals, 2012) {Check Wis. Stat. Rule 809.23(1)(b)4 before citing - a quick read indicates that this forum may have been of no benefit to a man that was apparently on a crusade}

CONCLUSION

¶23      As there is no disputed issue of material fact and no violation by State Collection Service of any of the consumer acts, we affirm the circuit court’s decision of summary judgment dismissing Andersen’s claims.  We also affirm the circuit court’s finding that Andersen brought this lawsuit in bad faith and for the purpose of harassment and affirm the award of $18,125 in attorney’s fees to State Collection Service.

            By the Court.—Judgment and order affirmed.

                        This opinion will not be published.  See Wis. Stat. Rule 809.23(1)(b)4


 Adams v. Bureau of Collection Recovery (ED MI, 2011) {Most courts will require more than mere allegations in your pleadings without any actual evidence to back them to be able rule in your favor. Hard to pick a winner here. "Defendant requests an award of $20,714.33 in legal fees, expenses and costs." they were awarded 7% of the amount requested}

 

At summary judgment,this court noted plaintiff had no record of phone calls nor any colorable claims stemming
from his conversations with defendant. Plaintiff also relied merely on the allegations in his own pleadings, which is insufficient to survive summary judgment. Saltzman v. I.C.C. Systems, Inc. , 2009 WL 3190359, at *7 (E.D. Mich . 2009)

 

Conclusion
For the reasons stated above, defendant’s request for attorneys’ fees and costs
is GRANTED in part. Plaintiff shall pay $1,487.50 in fees and costs pursuant to 15
U.S.C. § 1692k(a)(3) of the Fair Debt Collection Practices Act.
SO ORDERED.

 

I would think the best approach might be to ignore any additional protections of attorney fee shifting provided by the FDCPA and bring my claims based on common sense civil litigation inclusive of the attendant risk of losing creating a potential liability for attorney fees. That or get a top gun, winning consumer attorney that is a subject matter expert to take care of abusive law breakers.

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@Credator

 

I would think the best approach might be to ignore any additional protections of attorney fee shifting provided by the FDCPA and bring my claims based on common sense civil litigation inclusive of the attendant risk of losing creating a potential liability for attorney fees. That or get a top gun, winning consumer attorney that is a subject matter expert to take care of abusive law breakers.

 

 

You said that you wanted to see some cases where attorney's fees had been awarded to defendants due to FDCPA lawsuits brought in bad faith and for the purpose of harassment, so that's why I posted them.  :-)

 

Yes, Simmons was a claim brought as a result of a bk case, but the court's ruling gives an idea of what would be considered bad faith and harassment. 

 

Here's what the court said in Adams:

 

Therefore, simple legal research should have warned plaintiff of his non-viable claims, and that continuing to bring these claims would cause needless expenditures for defendant.  Thus, this court accepts defendant's argument that plaintiff's failure to dismiss untenable claims establishes plaintiff's bad faith and intent to harass.

 

The plaintiff had no proof of his claims, discovery did not produce evidence, but he refused to dismiss.  The same thing occurred in Smith v. Argent.  The plaintiffs had no evidence to prove their claims.  In other words, if one files an FDCPA claim with no evidence but merely allegations and discovery produces no evidence, the lawsuit could be considered in bad faith and for the purpose of harassment.

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@BV80

@Credator

 

 

You said that you wanted to see some cases where attorney's fees had been awarded to defendants due to FDCPA lawsuits brought in bad faith and for the purpose of harassment, so that's why I posted them.  :-)

 

Yes, Simmons was a claim brought as a result of a bk case, but the court's ruling gives an idea of what would be considered bad faith and harassment. 

 

Here's what the court said in Adams:

 

Therefore, simple legal research should have warned plaintiff of his non-viable claims, and that continuing to bring these claims would cause needless expenditures for defendant.  Thus, this court accepts defendant's argument that plaintiff's failure to dismiss untenable claims establishes plaintiff's bad faith and intent to harass.

 

The plaintiff had no proof of his claims, discovery did not produce evidence, but he refused to dismiss.  The same thing occurred in Smith v. Argent.  The plaintiffs had no evidence to prove their claims.  In other words, if one files an FDCPA claim with no evidence but merely allegations and discovery produces no evidence, the lawsuit could be considered in bad faith and for the purpose of harassment.

I asked, I received, and I thanked. :-)

 

The context for the request was, "Perhaps someone could provide links to 5 or 6 opinions where the pro se had filed frivolous, harassing, or bad faith FDCPA claims and in return they received an adverse judgment inclusive of attorney fees. My thinking is it would be so obvious what they did wrong it would be instructive only to the greenest of alleged debtors."

 

Since I had not seen such cases posted on the forum I believed it might be of value to those with a concern of filing a first time FDCPA claim or to those informing others of the possible risks.

 

I did a quick scan of the case information I found online and posted me thoughts. Nothing surprising (nor all that useful) for an experienced litigant IMHO. It is what it is.

 

FDCPA is not some magical claim. The party bringing the claim is a plaintiff similar to any other plaintiff filing a civil claim in court. It comes with very similar responsibilities to any other civil claim plaintiff.

 

Apparently Ceresko was not a pro se for the entirety (any?) of his FDCPA claim pursuit:

"B. Ceresko's counsel had unsuccessfully made similar arguments in two prior cases in the District of Arizona."

 

Simmons does not seem to be a pro se either:

Joshua N. Bleichman, Law Offices of Joshua N. Bleichman, Spring Valley, NY, for Plaintiffs-Cross-Defendants-Appellants.

 

The Simmons court said, "The assertion of the claim did not by itself prove bad faith. Accordingly, we vacate the judgment insofar as it grants Malen and Roundup attorneys' fees and costs related to the motions to dismiss."

"Notwithstanding our vacatur, we cannot disagree with the district court's characterization that the Simmons were "careless" in their pursuit of this action below, Simmons, 2009 WL 3049586 at *1, 2009 U.S. Dist. LEXIS 87383, at *2, and continue to be so here. Therefore, we grant reasonable costs of this appeal in favor of Malen and Roundup."

 

Perhaps I am reading Simmons incorrectly but it seems that, after vacatur, there were no attorney fees awarded against Simmons.

 

Removing Simmons (where counsel apparently was just "careless" in their pursuit of the claim), we have 1 out of 4 (did Smith have representation?) of the cases sampled for averse attorney fees that involved counsel for the plaintiff. So suggestions to seek an attorney for an FDCPA claim to avoid adverse attorney fees may need to be seriously qualified. Probably best to seek out a competent, winning consumer attorney or two and research them well and interview them.

 

Any insight as to the amount of attorney fees awarded in Smith v. Argent? Or perhaps the text of the opinion? :-)

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@Credator

 

While Ceresko and Simmons were not pro ses, I don't see how that matters.  An award of attorney's fees is based upon the court's determination that the plaintiff, not his attorney, filed the suit in bad faith and for the purpose of harassment.  Here's a court's ruling in Terran v. Kaplan  (Dist. Court, D. Arizona 1997):

 

I find that Plaintiff, together with his attorney, Michael C. Shaw cooperated in drafting the complaint and the harassing nature of their activities, and that each should be responsible for monetary sanctions imposed by the Court.

 

In the above case, the court split the sanction between Terran and his attorney.  They did not hold the attorney solely responsible.

 

 

I don't believe that attorney's fees are often awarded to FDCPA defendants.   Proving bad faith and harassment isn't easy, but some courts have made those determinations and awarded the fees.   The cited cases are worth reading in order to get an idea of what courts require to prove bad faith and harassment.

 

I've never raised the issue of attorney's fees, but I have pointed out that one could be responsible for the costs associated with an FDCPA counterclaim or cross-complaint.   When a defendant is trying to avoid a judgment, unless they don't care, they really don't want the costs of the plaintiff's defense to an FDCPA counterclaim added to a judgment.

 

Anyway, here's some more cases in which FDPCA defendants were awarded their attorney's fees.

 

Tucker v. CBE Group, Inc. (Dist. Court, MD Florida 2010)

 

Guidry v. Clare (Dist. Court, ED Virginia 2006)

 

Cousineau v. UNIFUND CCR PARTNERS (Dist. Court, D. Colorado 2012)

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@BV80

@Credator

 

While Ceresko and Simmons were not pro ses, I don't see how that matters.  An award of attorney's fees is based upon the court's determination that the plaintiff, not his attorney, filed the suit in bad faith and for the purpose of harassment.  Here's a court's ruling in Terran v. Kaplan  (Dist. Court, D. Arizona 1997):

 

I find that Plaintiff, together with his attorney, Michael C. Shaw cooperated in drafting the complaint and the harassing nature of their activities, and that each should be responsible for monetary sanctions imposed by the Court.

 

In the above case, the court split the sanction between Terran and his attorney.  They did not hold the attorney solely responsible.

 

 

I don't believe that attorney's fees are often awarded to FDCPA defendants.   Proving bad faith and harassment isn't easy, but some courts have made those determinations and awarded the fees.   The cited cases are worth reading in order to get an idea of what courts require to prove bad faith and harassment.

 

I've never raised the issue of attorney's fees, but I have pointed out that one could be responsible for the costs associated with an FDCPA counterclaim or cross-complaint.   When a defendant is trying to avoid a judgment, unless they don't care, they really don't want the costs of the plaintiff's defense to an FDCPA counterclaim added to a judgment.

 

Anyway, here's some more cases in which FDPCA defendants were awarded their attorney's fees.

 

Tucker v. CBE Group, Inc. (Dist. Court, MD Florida 2010)

 

Guidry v. Clare (Dist. Court, ED Virginia 2006)

 

Cousineau v. UNIFUND CCR PARTNERS (Dist. Court, D. Colorado 2012)

Thanks for the additional case leads. Those with an interest now have a good starting point on doing their due diligence.

 

Of course Simmons not being a pro se does not matter since no attorney fees were awarded and it is therefore not part of the data set of cases I was interested in providing newer litigants that may have their eye on filing an FDCPA claim.

 

The definition of winning varies by the litigant's definition as raised in my prior posting:

 Adams v. Bureau of Collection Recovery (ED MI, 2011) {Most courts will require more than mere allegations in your pleadings without any actual evidence to back them to be able rule in your favor. Hard to pick a winner here. "Defendant requests an award of $20,714.33 in legal fees, expenses and costs." they were awarded 7% of the amount requested}

As far as I can tell the law firm did not even recover all of their hard costs. Some monetary pain was clearly inflicted on the defendant.

 

Since some posters here (myself included) often suggest that, if similarly situated, we likely contact/engage an attorney before filing an FDCPA claim it is clear to me that it should matter when an attorney filed an FDCPA claim that caused attorney fees to be awarded against their client.

 

As far my comment on the subject of attorney fees I stated, "As far as sanctions and attorney fees being awarded against a pro se in a lawsuit that alleges FDCPA violations I don't recall reading much, if any of those cases. There seems to be a lot of allusions to such cases on forums." It was/is my impression that there are a lot of "allusions" going on. I did not identify a particular party and don't believe it is just one poster.

 

If *I* have a solid FDCPA claim I should be able to negotiate a favorable settlement. If I cannot, I would review the admissible evidence supporting each of my require elements to prove up my claim and see if I have what it takes to win. I would hope a competent winning consumer attorney familiar with the FDCPA and any applicable state statutes would do something similar before filing a losing claim.

 

Barring a brand new and unfamiliar forum I pretty much know, before I file a claim, whether I am likely to have a favorable result. Exceptions apply, such as foreclosure defense where the courts seem to be trying to figure out what the meaning of is is. Thoroughly reviewing and understanding applicable case law (not an easy task) is one tool that permits me to have such a belief. YMMV

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