KevinErrbenn

Sued my creditor: Just came back from court.

Recommended Posts

Hello 

So this site has been great to me. After months of dealing with a creditor I decided to sue them for violations of the FCRA (did not open reinvestigation), defamation, financial injury etc as well as breach of contract since they did not honor our settlement agreement. 

I went to court this morning and the attorney for the credit card company did not show up, which was surprising. I showed the judge proof of service and everything but the judge initially didn’t want to grant default judgement since he said my claim was not very detailed (I only said “violation of FCRA”) and he said he’ll request a hearing once I bring back a written statement of claims affidavit. I disagreed and stated I should get default because the defendant didn’t show up  after receiving proper service and doing a hearing would be unfair to me. He agreed and said to bring to the clerk of courts a written affidavit of the specific violations, Statutes etc and justify the amount I’m asking for ($3000) where did I come up with that number etc.

Is the judge asking for a Statement of Claim? Is this just a word document with facts or does it need to be written in an specific format? This is small claims in Florida. Apologies for the noobie question and thanks for any help! 

Share this post


Link to post
Share on other sites
2 hours ago, KevinErrbenn said:

said to bring to the clerk of courts a written affidavit

Google "jurat affidavit sample". 

Share this post


Link to post
Share on other sites

Thank you @Harry Seaward. Here is what I came up with.

 

On DATE, I entered into a contractual agreement with CREDITOR, servicer to CREDITOR to settle in full an account and no longer owe any balance in exchange for a single payment of $XXX.00 out of an alleged balanced owed of $XXX.00. 

On DATE, CREDITOR received a total of $XXX.00 as condition of our agreement (see attached). The settlement stated: “If we receive this payment by the date shown and the payment clear your bank account then you will no longer owe any amount on the account”. Agreement attached. 

CREDITOR then updated the credit reports stating a balance owed on this account of $XXX, instead of $0, violating our agreement of “no longer owe any balance” which constitute a Breach of contract.

CREDITOR has multiple violations of the FCRA. The specific FCRA violations of CREDITOR are as follows.

1.    §623 (b)(1)(A) [15 U.S.C.§1681s-2] Duties of Furnishers of Information upon Notice of Dispute: conduct an investigation with respect to the disputed information;

After providing CREDITOR legal notice of a dispute with regard to the accuracy of the information being furnished to the credit reporting agencies pursuant to §611 (a)(2) [15U.S.C. §1681s-2], CREDITOR has failed to respond to my request for a reinvestigation in violation of the requirements of furnishers of information established under the Fair Credit Reporting Act. 

2.     §623 (b)(1)(E)(ii) [15 U.S.C.§1681s-2] Duties of Furnishers of Information upon Notice of Dispute: ifanitemofinformationdisputedbyaconsumerisfoundtobeinaccurateorincompleteorcannotbeverifiedafteranyreinvestigationunderparagraph(1), forpurposesofreportingtoaconsumerreportingagencyonly, asappropriate, basedontheresultsofthereinvestigationpromptly

(i) modifythatitemofinformation;

(ii) deletethatitemofinformation; or

(iii) permanentlyblockthereportingofthatitemofinformation.

 On DATE, I sent via USPS CMRR (receipt attached) notice requesting for the information to be deleted from the consumer reporting agencies if it could not be verified. Not having received any information that could verify their reporting, CREDITOR has failed to delete the reported information and continues to report it to all major consumer reporting agencies in violation of the requirements of furnishers of information established under the Fair Credit Reporting Act.

3.    § 623 (a)(1)(A) [15 U.S.C. § 1681s-2] Reporting information with actual knowledge of errors.A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.

On DATE, Experian, Equifax and TransUnion received notice of dispute regarding the above-referenced account, receipts attached. CREDITOR verified electronically, to the consumer reporting agencies, without concluding their investigation, that the information currently reported is correct despite having received my notice of dispute thus having reasonable cause to believe that the information was inaccurate. 

4.    [15 U.S.C. § 1681o] Negligence noncompliance. 

 After being notified multiple times that they are inaccurately and incompletely furnishing information regarding the above-referenced account to the consumer reporting agencies, CREDITOR negligently continues to report this account and fails to delete this item of information pursuant to Section 623 (b) (1) (E) (ii) of the Fair Credit Reporting Act.

The Federal Credit Report Act permits the option of bringing action in any other court of competent jurisdiction as stated on § 618. [15 U.S.C. § 1681p] Jurisdiction of courts of the Federal Credit Reporting Act.  [I'm mentioning this because the judge said that maybe this may need to be filed in Federal Court]

CREDITOR has breached our settlement agreement. CREDITOR has had sufficient information to conduct a reinvestigation. CREDITOR has breached its duties to maintain reasonable procedures and has failed to make reasonable efforts to investigate and correct inaccurate or incomplete information as required as per under the FRCA of which consumers are entitled to up to $1,000 per each violation. 

Based on this, I hereby demand judgment in the sum of $ X,XXX together with court costs and any further costs which the Court may assess. 

_______________________________

affiant signature

 _______________________________

affiant printed name 

 

Sworn to (or affirmed) and subscribed before me this ______ day of __________________, 20____, by __________________________ who is personally known or who produced a ___________________ as identification.

(SEAL) 

______________________________ 

notary public signature 

___________________________ 

notary public printed name 

 

 

 

Share this post


Link to post
Share on other sites

@KevinErrbenn

To whom did you send the summons and complaint?

Did you dispute with the credit reporting agencies or just the creditor?

Share this post


Link to post
Share on other sites
4 minutes ago, BV80 said:

@KevinErrbenn

To whom did you send the summons and complaint?

Did you dispute with the credit reporting agencies or just the creditor?

Summons and Complaint to the registered agent of the creditor. 

Disputed specific details with CRAs first, then once verified, disputed specific details with creditor directly. 

Share this post


Link to post
Share on other sites
2 minutes ago, Goody_Ouchless said:

So you settled a debt that and they neglected to update trade lines?

 

They updated the balance incorrectly, did not update it as zero. They have incorrect DOFD and incorrect lates as well. 

Share this post


Link to post
Share on other sites
24 minutes ago, KevinErrbenn said:

They updated the balance incorrectly, did not update it as zero. They have incorrect DOFD and incorrect lates as well. 

Is this a well-known national creditor or small state loan company?

Share this post


Link to post
Share on other sites
32 minutes ago, KevinErrbenn said:

National Bank. Top 10. 

It’s really strange that a national bank would not answer a complaint and risk a default judgment.  

This is just something to think about:  when the bank is notified of a default judgment, be prepared that it will make sure that it was properly served according to the laws of your state.  

If, by chance, service was not effectuated, the judgment can be vacated, and your complaint could possibly be dismissed for failure to state facts sufficient to constitute a cause of action. 

I’m not saying it would definitely happen, but it’s best to always be prepared.

Share this post


Link to post
Share on other sites
3 minutes ago, BV80 said:
 

It’s really strange that a national bank would not answer a complaint and risk a default judgment.  

This is just something to think about:  when the bank is notified of a default judgment, be prepared that it will make sure that it was properly served according to the laws of your state.  

If, by chance, service was not effectuated, the judgment can be vacated, and your complaint could possibly be dismissed for failure to state facts sufficient to constitute a cause of action. 

I’m not saying it would definitely happen, but it’s best to always be prepared.

I have the original service documents and they were properly served by the Sheriff's Office of their county. I served their registered agent based on the state's business registry. I was shocked they didn't show up but did not surprised me since my letters were getting ignored as well. 

I think that's what the judge hinted. That I include an affidavit listing a cause of action and state of facts. Isn't Breach sufficient? Any help on how to prepare an affidavit that could help get the default judgement granted? 

Share this post


Link to post
Share on other sites
43 minutes ago, KevinErrbenn said:

Isn't Breach sufficient?

Breach of contract is only one type of a cause of action. FCRA violations are another type. You have to claim both in your complaint if you want to recover on both. Your affidavit will be limited to whatever claims you alleged in your complaint.

Share this post


Link to post
Share on other sites
47 minutes ago, Harry Seaward said:

Breach of contract is only one type of a cause of action. FCRA violations are another type. You have to claim both in your complaint if you want to recover on both. Your affidavit will be limited to whatever claims you alleged in your complaint.

I listed Breach, FCRA violations, defamation and non compliance. 

Share this post


Link to post
Share on other sites
12 hours ago, Harry Seaward said:

Breach of contract is only one type of a cause of action. FCRA violations are another type. You have to claim both in your complaint if you want to recover on both. Your affidavit will be limited to whatever claims you alleged in your complaint.

@Harry Seaward would you say the statement of facts above would satisfy the requirement for providing cause of action for FCRA and Breach of Contract violations or should I go with a more court-appropriate format? 

Share this post


Link to post
Share on other sites

It should be enough assuming the defendant doesn't challenge it. 

How do you know it was the defendant that failed to delete the entries on your credit report? It could have been the CRAs not complying. 

Share this post


Link to post
Share on other sites
4 minutes ago, Harry Seaward said:

It should be enough assuming the defendant doesn't challenge it. 

How do you know it was the defendant that failed to delete the entries on your credit report? It could have been the CRAs not complying. 

The defendant could have notified me of that or conduct a reinvestigation and make sure the investigation results were sent to me. I sent a total of 4 letters to them. They have amp opportunity to correct any issues or to avoid litigation. 

Can the defendant challenge a default judgement for no show if they were properly served? 

Share this post


Link to post
Share on other sites
1 hour ago, KevinErrbenn said:

Can the defendant challenge a default judgement for no show if they were properly served?

No, not the judgment, but they can certainly challenge statements you are making under oath to obtain a default judgment. I question whether or not they were properly served, because none of your story makes any sense, but i wasn't there for any of it so i have to take your word on it. And, frankly, it doesn't matter to me or anyone else here anyway. If it's going to blow up, it's going to be on you, not us. 

Share this post


Link to post
Share on other sites
1 hour ago, KevinErrbenn said:

The defendant could have notified me of that or conduct a reinvestigation and make sure the investigation results were sent to me. I sent a total of 4 letters to them. They have amp opportunity to correct any issues or to avoid litigation. 

Can the defendant challenge a default judgement for no show if they were properly served? 

The FCRA does not require the defendant to notify you of results.

The defendant could file a motion to vacate the judgment if it can show good cause as to why it failed to respond to the complaint.

Share this post


Link to post
Share on other sites
7 minutes ago, BV80 said:

The FCRA does not require the defendant to notify you of results.

The defendant could file a motion to vacate the judgment if it can show good cause as to why it failed to respond to the complaint.

The Section 623 of the FCRA requires the defendant to 1) conduct an investigation and 2) Report the results to the consumer, when a consumer brings up a dispute based on 611.

"complete such person’s investigation of the dispute and report the results of the investigation to the consumer before the expiration of the period under section 611(a)(1). 

Share this post


Link to post
Share on other sites
29 minutes ago, Harry Seaward said:

No, not the judgment, but they can certainly challenge statements you are making under oath to obtain a default judgment. I question whether or not they were properly served, because none of your story makes any sense, but i wasn't there for any of it so i have to take your word on it. And, frankly, it doesn't matter to me or anyone else here anyway. If it's going to blow up, it's going to be on you, not us. 

They were properly served. I have the confirmation documents signed and dated from the Sheriff's department and the Sheriff's department faxed in copies of the return of service directly to the court. 

Share this post


Link to post
Share on other sites
6 minutes ago, KevinErrbenn said:

They were properly served.

Like i said, i have to take your word on it. It just seems nearly impossible that a national bank wouldn't respond to a lawsuit and risk default judgment. 

Share this post


Link to post
Share on other sites
5 minutes ago, KevinErrbenn said:

The Section 623 of the FCRA requires the defendant to 1) conduct an investigation and 2) Report the results to the consumer, when a consumer brings up a dispute based on 611.

"complete such person’s investigation of the dispute and report the results of the investigation to the consumer before the expiration of the period under section 611(a)(1). 

You’re quoting subsection (a).   There is no private right of action under that subsection.  

The FCRA does not provide a private right of action for violations of section 1681s-2(a). Green v. Capital One, No. 8:14-cv-1950-T-30MAP, 2014 WL 6882310, at *1 (M.D. Fla. Dec. 4, 2014) (citing Green v. RBS Nat. Bank, 288 F. App'x 641, 642 (11th Cir. 2008)).

Share this post


Link to post
Share on other sites

If the OP has the documents and can prove that the correct registered agent was served, then I would have to believe that the defendant would have an issue with the registered agent for not informing them of the lawsuit rather than the OP.

There was a case in 2011 (as a result of the great recession) where Bank of America ignored collections notices after a home owner of a wrongful foreclosure won a judgement against them and as a result, the home owner brought the sheriff and moving trucks to a B of A branch to seize property. That was in Florida too. So the national banks have been known to ignore their legal responsibilities.

Share this post


Link to post
Share on other sites

Incidentally, I've seen people file a lawsuit, get a default judgment and only when trying to execute their judgment find out their judgment wasn't worth the paper it was printed on because they sued "CapitalOne" and not "CapitalOne N.A." or whatever their full legal name is. 

Share this post


Link to post
Share on other sites
3 minutes ago, Harry Seaward said:

Like i said, i have to take your word on it. It just seems nearly impossible that a national bank wouldn't respond to a lawsuit and risk default judgment. 

See attached. 

IMG_1288.jpg

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.