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debt_warrior

Sue FDCPA in Small Claims Court

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You also have the right to sue a collector in a state or federal court within one year from the date the law was violated (some state laws allow more time). Many states have their own debt collection laws that are different from the federal Fair Debt Collection Practices Act.

 

The FDCPA 15 U.S.C. § 1692k(a)(2) explicitly gives you the right to sue a debt collector, or to be precise, to sue a debt collection agency that violates provisions of the FDCPA. For each and every violation of FDCPA.

 

The attached file has a list of Small Claims Court limits for the 50 States. (Check your state's website for any special rules or exclusions.)

 

Remember, no frivolous lawsuits.  If you win a couple of hundred bucks or $1K, go to Las Vegas and celebrate for the weekend.

Sue FDCPA in Small Claims Court.docx

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There is one MAJOR flaw with this post.  Even if the Plaintiff files a FCDPA case in small claims course the Defendant can motion to move the case to Federal Court since that law is a Federal Law.  The Plaintiff has ZERO recourse if they do and the standards and burden for a case are much higher and more rigid in Federal Court.  Anyone filing a FCDPA case pro-se should be prepared to try the case at the Federal level no matter where they file the case.

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It is a MINOR flaw, if any at all.  And if you give it enough thought, there is recourse to a removal to Federal court.  Read on for a real life experience, not just a textbook exposition...

 

Small claims court is a special court where disputes are resolved quickly and inexpensively. In small claims court, the rules are simplified and the hearing is informal. Attorneys are generally not allowed. [check with your local court.]  If your court, does not allow attorneys, then a suing plaintiff, gains an advantage when you debt collector or JDB defendant can not send in their hired gun attorneys.  The playing field is leveled somewhat, especially if you are well prepared.  

 

You may indeed get removed to federal court...but for $1K...a debt collector would have to be crazy to start racking huge legal bills to avoid mice nuts.  Now, they are in the position where you are forcing them to settle or fold.

 

Texas Hold’em!

 

The consumer may bring a lawsuit against the debt collector in state court. Small claims courts is a better option for consumers who do not want to hire an attorney or spend the time required for a full-blown state court lawsuit. Small claims courts allow individuals to argue their case without an attorney and through an expedited process. These courts typically offer the consumer one shortened hearing in order to argue the case to a judge.

 

Relation to State Law-The FDCPA preempts state law only to the extent that a state law is inconsistent with the FDCPA. A state law that is more protective of the consumer is not considered inconsistent with the FDCPA.

 

Here’s a real life example from someone who actually sued in Small Claims court SUCCESSFULLY several times:

 

These suits happen all the time in small claims court. I sure could have used to do more research. But you know, you live and learn. But just for those who think I am totally unprepared - I wanted to go pro se, and that's the only one I thought I'd get traction on. Inhindsight, I should have used Texas law which is stricter than federal.

 

This is also not my first go-around in the small claims courts using federal law. This is my 6th suit, and the first time I've had a case "removed." My first small claims case ended up being settled within minutes of them being served. I sat and watched the constable serve them - and they called my phone to discuss settlement within minutes. I no sooner got 1 mile away in my car when someone at home office in San Francisco called and told me they were paying me 140 dollars more than I asked in my suit.

 

The second small claims suit I filed was FDCPA based. They called to settle within a week.

 

The third one was based on FCRA and was againt one of the big three CRAs. It resulted in the defendant filing an answer, and asking to set a trial. Within one week, they are settling with me now - and the check is waiting for me. I will be dismissing it next week.

The fourth one seems to be resulting in the defendant not even filing an answer in time. The clerk set a hearing to show the judge and default judgement was rendered. I can file a writ of execution to effect collection now, and probably will so I can watch the constable go down there and take some stuff of theirs to sell."

 

Would it not be great to see that happen.

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@debt_warrior

 

I'd be careful about filing an FDCPA claim in state court if the debt is within the SOL and the FDCPA violation was committed by a JDB.  It's possible that the JDB could file a counterclaim for the debt.

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It is a MINOR flaw, if any at all.  And if you give it enough thought, there is recourse to a removal to Federal court.  Read on for a real life experience, not just a textbook exposition...

 

No it is a MAJOR flaw.  The opposing party can have it removed to Federal Court and many JDBs do this to intimidate the pro-se Plaintiff.  You claim it is minor then go on to quote someone who claims to have done this in Small Claims.  There is no case law only their word that they were successful.   ZERO proof.

 

There is more than one thread on this forum alone of pro-se litigants who filed their FCDPA claim only to have the Defendant move it to Federal Court where they can hammer the Plaintiff with rigid rules of civil procedure and attorneys.  There is NO recourse once the opposing party gets it removed to Federal Court.  You try it there or you give it up.

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Debt Warrior,

While most of us are not attorneys, and have been learning the law as we go. It is incumbent on all posters that information we post has been reasonabley affirmed via, our personal experience and/or a cited source of information.

Your post is frought with problems that could lead some one to make a decision that could cost them money. I personally, try to use the doctors oath of "Do no harm" when posting. I am sure I fail sometimes.

Clyde had pointed out the obvious which is standard legal practice, by any JDB, CA or OC. If they are going to fight a FDCPA suit they cerainly aren't going to do it in Small Claims court.

Here is the information you listed in your attachement, that gives the dollar limits in all 50 states.

Sue FDCPA in Small Claims Court

You also have the right to sue a collector in a state or federal court within one year from the date the law was violated (some state laws allow more time). Many states have their own debt collection laws that are different from the federal Fair Debt Collection Practices Act.

The FDCPA 15 U.S.C. § 1692k(a)(2) explicitly gives you the right to sue a debt collector, or to be precise, to sue a debt collection agency that violates provisions of the FDCPA. For each and every violation of FDCPA.

Can you point out for us which state is it that has State Laws or Statutes that trump or overide Federal Law? Would be good to know as it relates to the FDCPA. I am not an expert so I will tell you that in California I know that isn't the case. Even the Rosenthal Act, mirriors the Federal Statute related to the one year SOL to file a claim.

Also your term above "For each and every violation". I being a least sofisticated consumer could surmize that if I was violated 8 times, then in California I may have a claim for $8000 dollars based on the limits listed in the document.

Finally, you posted some diatribe from someone or mutliple persons who's occupation is filing samll claims cases to collect money against the JDB, picking up his settlement checks, like the slot machine is Vegas is giving away million dollar jackpots. I would only note that the story from San Francisco uses the term "Constable" as the person serving the suit. I live in Northern California, and reasonably close to San Francisco. I know of know law enforcement agency or process servers that go by the term Constable.

You want to be helpful on this site, find something you really know about based on personal experience and post your experiences about that subject. Searching the Internet and dropping information form othersites, can be dangerous to others.

I thought you were the poster who posted the information a few weeks ago about "Getting Rid of your Judgement" then attached a form, but I couldn't find the topic again. If it wasn't you I apologize, if it was and you removed the post, even better.....

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Anyone filing a FCDPA case pro-se should be prepared to try the case at the Federal level no matter where they file the case.

Agreed, and my own experience has taught me that filing Federal claims in any court other than Federal Court is a waste of time.  The lower courts (especially Justice, small claims and municipal courts) are used to dealing with disputes that revolve around contracts or minor torts and are ill-equipped to deal with the intricacies of "strict liability" statutes.

 

Remember, if you lose your case in small claims and you refile in another court, the case will almost certainly be dismissed as res juducata.

 

My advice is to always file federal claims in Federal Court.  If this seems more daunting than you are willing to take on, talk to a lawyer (some will take the case on contingency) or forget about your claims.

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@debt_warrior

 

I'd be careful about filing an FDCPA claim in state court if the debt is within the SOL and the FDCPA violation was committed by a JDB.  It's possible that the JDB could file a counterclaim for the debt.

Cant counterclaim in an FDCPA case.

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@Trapezius

 

Yes, they can.  It's called supplemental jurisdiction which would allow a federal court to hear a state court claim for the collection of the debt.  However,  some federal courts won't hear such a counterclaim because they've ruled it would have a chilling effect on those filing FDCPA claims in federal court. 

 

Because Defendant's counterclaims bear a logical and factual relationship to Plaintiff's claims in that they are related to a single debt incurred by Plaintiff, supplemental jurisdiction exists over Defendant's counterclaims under § 1367(a).  Sparrow v. Mazda Am. Credit, 385 F. Supp. 2d 1063, 1071 (E.D. Cal. 2005).

To allow a debt collector defendant to seek to collect the debt in the federal action to enforce the FDCPA might well have a chilling effect on persons who otherwise might and should bring suits such as this. Moreover, it would involve this Court in questions of no federal significance. Given the remedial nature of the FDCPA and the broad public policy which it serves, federal courts should be loath to become immersed in the debt collection suits of . . . the target of the very legislation under which a FDCPA plaintiff states a cause of action. Sparrow, 385 F. Supp. 2d at 1071.

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One very important thing to remember is that you cannot have an attorney in small claims court.  But what would prevent the debt collector from sitting with their own in-house attorneys and planning out their case before court?  Having an attorney on your payroll as these big debt collectors do means they do not have to have him in the courtroom.  The attorney would no doubt plan out the entire case and instruct their representative on how to fight it.  

 

This is not even close to accurate.  While some states do not allow attorneys in small claims court many do. Georgia is one of them that allows attorneys in Magistrate Court (their small claims) and there is no issue.  When it comes to a business suing a party even in small claims court they will have an attorney because an LLC or incorporated business may not represent themselves and are required to have legal counsel.  

 

Do we, as average citizens, have that same access to legal counsel and knowledge?  I think not.

 

We most certainly DO have that access.  NOTHING prevents any person in the USA from hiring a lawyer to guide them on case even if the attorney does not go to trial with them.  Many consumer attorneys do a first consultation for free.  If the consumer cannot afford one that is a personal issue but does not by any means mean that they do not have access to legal counsel.

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Do we, as average citizens, have that same access to legal counsel and knowledge?  I think not.

 

We have public law libraries as well as online access to the laws, rules & statutes that control our courts.

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@bassplayr

 

Especially since a small claims court judge is probably completely unaware of the federal laws and how they apply.

 

 

This an important point and another reason not to file an FDCPA claim in state court (unless it's a counterclaim to a debt collection lawsuit).   You don't want to have to explain the FDCPA and applicable federal precedent to a state judge who may have never heard of the FDCPA.

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Do we have resources available?  Absolutely.  Is it the same access to resources that these debt collectors have?  Not by a mile.  that was my point.

 

I only mentioned the  public law library because many people who read these post don't realize they exist.

 

And Yes, if you find yourself here fighting a lawsuit; you will be the underdog, that's just the way it is. It's not supposed to be easy.

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A little jumpy on pulling the trigger, are we?

 

Umm no but you certainly are.  You need to remember that this site is read by LAY people.  They take everything literally.  When you speak in generalities as though they apply to every state and every jurisdiction it is VERY misleading to those who do not know the system.

 

Since you seem to have a chip on your shoulder, guess I need to clarify.  I was not trying to claim in that statement that you cannot have an attorney in any small claims court in any state.  The important part that I was trying to illustrate there was that even though small claims courts may not allow attorneys, you can bet your last dollar that the debt collector's in-house counsel will be preparing their case for them. 

 

Actually based on your bias and diatribes the one who seems to have the chip is you.  I have successfully defeated one of the largest JDBs in the country.  Top 5 at that.  However, to do so I had to work REALLY hard at learning the law and how it would help me.  

So what if the debt collector is using a lawyer?  NOTHING prevents a consumer from coming here, going to a law library, getting a free consult from a lawyer, or using a legal clinic to name a few options.  You paint the picture that absolutely no legal help is available to consumers and it is not even close to accurate.

 

And no, clydesmom, we most certainly DO NOT have the same access that they do.  The average American cannot afford to pay an attorney to defend them in court.  

 

Yes, we do.  Many law schools offer free or low cost clinics for those who cannot afford a lawyer.  There is also legal aid for non-criminal matters for the poor and indigent.  I know in my area they help a LOT of consumers with debt cases.  There is the law library, free consults, and thousands of web sites all dedicated to the law and debt collection help for consumers.

 

You can choose to avail yourself of any of those options and fight to the end or roll over for the default judgment as 90% of consumers do.  Read through the websites on the number of consumers who put the time in and did their own research to defeat an inexperienced hired legal gun the debt collector used.  It happens more often than the industry would like.

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