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Civil Law Tips


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10 replies to this topic

#1 JessicaRabbit88

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Posted 26 September 2003 - 04:53 PM

Okay this is a LONG read so get comfy.

I thought for all of us that are serious about credit repair, it usually means getting to the point of filing a lawsuit, or at least studying law in order to help accomplish your goal.

I thought it would be kind of neat to put together a good thread of lawsuit "to-do" list to give a resource and a heads up.

DISCLAIMER: I am by no means a professional nor do I claim to have expert knowledge of the law, this is mearly a reflections of my experience and learning thus far. This thread is meant to be a generic resource, you MUST check your own state laws and rules before acting upon anything read here. Also this thread specifically deals with Civil Court Procedure, this is not about Small Claims - as they vary greatly and the thought process for each is very different.

Okay so now on with the good stuff, and again I am only speaking on my experience .... you mileage may vary B)

Starting your credit repair:
~Print a copy of your reports, directly from each credit reporting agency. You want to make sure the date prints on the document. Keep this file in a safe location where it won't get damaged or lost. You will need to have it as a reference or a base for foundation.
~Send ALL documents CRRR (yes we know it cost more). Staple the green card to the lower left hand corner of your document sent. Also a good idea to photo copy both pieces and keep in a seperate place.
~If you must call, check to see if the call can be recorded. If not, document the call IMMEDIATLY after you hang up. Be sure to get the full name or ID# of the representative, their location, and any other identifying information you can get of the representative you talk to. On the call log document the time, date, and approx. length of the call, along with a detailed summary of call.
~Keep all files/documents of the same issue together, include reports that correspond and any communication sent to you, keep them in chronilogical order - DO NOT WRITE ON THEM. If you must, use a stickie and attach it to the document.

As you get closer to having to file:
~Make sure any offer to settle, has the wording "For Settlement Purposes Only" across the top of the document.
~Talking on the phone in effort to settle before court to the opposing side is okay. You will be forced to have several pretrial conferences in which the main purpose is to reach a settlement. Don't be afraid to contact them and use your power as leverage ... ex: "If you settle by Friday at 5pm I will dismiss this case, if not, I will be submitting a to the courts to have this case go to arbitration". Give deadlines and start your offer high, they will counter-offer low , you will end up somewhere in the middle. Remember it will cost them about 10-20K to fight you in court, paying you may save them money.

Filing:
~Cannot advise where to file. It really is a personal choice and what you are more comfortable with, but 99% of the time they will bump it to Federal Civil Court to buy themselves more time and try and intimidate you. Really there is very slight difference between a state and federal court procedures ... yes it is a little stricter, but it is not uncomprehensable. If the case gets bumped don't fight it, I have learned that this only irritates the judge (you are delaying the process) and you give the opposing councel more time (which is what they want). Just go with it.
~Your Complaint is not a final, you can ammend it (which is to change it) free of cost at least once and sometimes more without penalty. Typos are actually pretty common amoung the legal field, but try to avoid it in your complaint because going Pro Se you will already be under a microscope.
~Learn defending stragey, knowing how the opponet is going to fight you will better prepare you for the case.

How to win:
~Remember the burden of proof is on YOU. You filed the case and you will be the one to prove that they other is in the wrong. Think that one through it is vital. For example, you say, "they didn't mail me a letter", and they say, "yes we did" - how are you going to proove that they did or did not mail the letter?
~Study the rules. If you are sueing someone for not following the FCRA, this falls under negligence. There is four areas of negligence you must proove in order to win, they are:
-Defendant owed me a legal duty of care
-The Defendant acted unreasonably
-The Defendant carelessness directly harmed me
-I have suffered economic loss
If you don't proove ALL four of those areas then you lose that claim. So all the opposing side has to do is show that they were not negligent in one of those four areas.
~To consider it "prooving" you must convince that you are right 51%. Picture two scales, each side equally weighing the same ... all you must do is tilt that scale to your side by 1% more then them to win. Criminal cases require 100%, but civil does not. Use this to your advantage.



Okay that is all I can think of off the top of my head, please add your thoughts B)

Jessica



#2 HDAlex

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Posted 26 September 2003 - 06:30 PM

Jessica,

Out-freaking standing - especially the how to win part.

Thank you for your effort on this!

-HDAlex

#3 shaunasd

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Posted 26 September 2003 - 07:51 PM

Jessica, that outline could not have come at a better time. I'm faced with no less than 3 small claims cases that I need to file next week. The hard part will be to find the time to detail, proof and finalize each one.

Thanks so much for the excellent guidance.......and good luck with your own case, btw. :wink:

#4 psp

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Posted 26 September 2003 - 08:05 PM

great, concise info Jessica! Kudos!!

#5 leebo

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Posted 26 September 2003 - 08:11 PM

Excellent post, Jessica.

I hereby dave aforesaid post my to my favorites, forthwith. :)

leebo

#6 radi8

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Posted 26 September 2003 - 10:34 PM

Excellent post, JR!

Moved it to the FAQ/Primer area, as it's answering a lot of questions that come up regularly. Should be "required" reading!


-Radi8

#7 leebo

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Posted 26 September 2003 - 11:26 PM

Excellent post, Jessica.

I hereby save aforesaid post my to my favorites, forthwith. :D

leebo



#8 BizCredit

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Posted 29 September 2003 - 04:20 PM

further, sayeth naught. :D

#9 Flower Pot

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Posted 25 May 2004 - 08:26 AM

Jessica & All

That is good advice when you are filing the complaint (plaintiff), Do you have any pearls of wisdom if you are the defendant?

In other words... What do I do now that the credit card company is suing me?

Without using a lawyer I filed a response to the complaint stating that I had no knowledge of the debt and therefore the complaint should be dismissed or proof of indebtedness should be supplied. Other than I stated that contrary to the statement in their complaint; I had not "refused to pay" since they had never contacted me.

What do you think?

FlowerPot...
Always up to my neck in fertilizer

#10 willy2004

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Posted 09 November 2004 - 09:50 PM

I have suffered economic loss


Pecuniary loss is not necessary to prove actual damages in an FCRA case. Think about a 604 claim, for example.

#11 JeepChick

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Posted 11 January 2005 - 11:07 PM

how do you get evidence before you have a suit? (without subpoena?)




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