49 replies to this topic

[RealtorKen]

Hello everyone,

I am writing this with concern. I am nervous that some may be biting off more then they can chew. We as a community have to help each other and that is exactly what I am trying to do here. I don't want anyone to be burned in an attempt of litigating violations. This is not legal advice, and I am not an attorney. I am an average consumer that is sharing knowledge that I have gained throughout my credit repair journey. I am not trying to discourage anyone, just looking to clarify the road ahead.

Stay off the phone!
Send everything CMRRR!

A lot of people have seen others filing civil lawsuits against Collection Agencies and Credit Reporting Agencies. I have noticed a lot of you also thinking about taking legal actions. It may seem like a great way to make some quick cash or to get quick results. It of course, is neither of the two.


When dealing with some of these unscrupulous companies out there, it WILL get frustrating. The thing you have to remember is that the journey you have embarked on has great rewards for the successful.

This journey can also lead to a lawsuit being filed against you for an unpaid debt. It can also lead to you waking a sleeping giant. The mentality to go into this should be like you are a fly on the wall collecting information and knowledge. Once you have all your ammo (evidence) then turn into that bear.

Everyone must realize that just because a collection agency violates your rights as a consumer, doesn't mean to run out and litigate the matter. Remember, your here for credit repair NOT courtroom tactics. The important thing to do is start a paper trail of all correspondences and violations.

Keep clear and complete records of your journey. After you have DV'd the collection agency 3-4 times via Certified mail then go back and pick out all the violations and place that in letterform. This letter is basically saying. Look your company has violated all these rules in the FCRA, and FDCPA and I have complete supporting documentation. You then demand for the validation/deletion. If no response I would then add to the letter, something to the fact of I am considering legal action. I would then send that out and wait for a response. I would follow that up with an intent to sue.

When you send that Intent to Sue letter you better make sure you have the kahonas to actually do it. If everyone keeps crying wolf, the CA's are just going to laugh.

You must completely understand the time and effort involved in such action. It is in no way (that looks weird 5 words only 11 letters) something to be attempted by the average consumer alone. I personally would interview a couple of attorney and throw them a couple quick quiz questions. Making sure they know their FDCPA and FCRA. Most FDCPA and FCRA attorneys work on contingency basis. Due to the simple fact that it is so defined in the FCRA and FDCPA that a successful complaint returns attorney costs. Don't let an attorney double dip! They will try and demand a piece of the settlement; this isn't like a car accident. The rules are clearly defined and if a CA breaks them they are liable to YOU.

For those of you that think you can take on a case Pro Se (representing ones self) there are a lot of things to be considered and learned.

Costs- be prepared to shell out some money. Federal court will cost $250 just to file a complaint. Local and state courts have a wide range of filing fees. You can't forget the costs for Service of Complaint, Postal Fees, Copy fees, parking fees, and travel fees. These costs to the eye may seem nominal but they add up VERY quick.

Time- For those of you that have done it Pro Se, you know you can never explain how many man/woman hours you invested in a case. That said, unless you have A LOT of free time on your hands, I would not consider Pro Se.

Education - Be willing and prepared to learn and read a lot! You must learn everything regarding case litigation. Court room procedures, actual laws, legal terminology, legal forms, complete case procedures from start to finish and much more.

Emotions- you must be able to undertake this with a clear mind. If you are going to attempt this, be prepared to give it your all. It will take a lot out of you. It will seem like it is not worth it at times.

With all that being said, completing a case Pro Se can be extremely rewarding mentally. You would be left with win or lose, a proud sense of achievement.

Litigating violations by the collection industry should be your last option. If you have exhausted every other avenue, then litigate it. If you have listened to my suggestions, by this point you should have 6-7 letters you wrote to the violator. Making sure you have a big stack of supporting evidence. The courts want a clear case and don't want to be burdened with frivolous complaints. You can even be fined for bringing a frivolous lawsuit to the courts. If you are going to do it, do it right!

Remember, informed consumers are the collection industries worst nightmare!

Good Luck!

For those of you that have the experience of litigating violations please share your thoughts and tips regarding this.

[screwedbysears]

Im with Ken its easy to get in over your head CA's will not fold easy even when they know they screw up just remember they have the money and resources. When I sued RMA I even had a letter from the stating that they knew I had a BK and they pulled 12 NONPP I final had to get an attorney I did settled with them and the CRA they pulled from but it took 6 months I think the main thing especailly with CRA is the don't want case law against them.

[Q]

I have some tips! If you don't have at least a couple Sections of the FCRA and half the FDCPA memorized in your head yet. Don't sue as you will literally drown yourself in reading too much.

Don't send an ITS unless you are planning on marching to the courthouse with that $250 (now why did they raise the cost $100 for) to file a complaint. Keep in mind, on average you spend, well I do, about 30 hours drafting a complaint. I STRESSSSSS not sending an ITS if you aren't going to even file as alot of grunt work goes into filing a suit.

[fitnlivly]

Great information guys........It's indeed a daunting task learning how things work with diy credit repair. I'm quite convinced that the courts depise frivolty, which is earmarked by the one clothed in a lawsuit crazy outfit. When you read the FDCPA as Ken suggested, the first part of it outlines its purpose as being there to protect consumers from unscupulous collection tactics. Time is on our sides it seems as long as one is patient in giving collectors all the rope they need to hang themselves. I'm seeing it happening now as I'm getting replies back from my DV letters. Yes, I'm seeing violations, but I don't intend alerting them to it right away. Rather, the dispute with continued re-attempts at having them validate the debt seems to be the best way to give them that rope.

Edited by fitnlivly, 19 February 2005 - 11:38 AM.

[LogicalOne]

Thank you so very much for giving insightfull words of wisdom!
I think you did a marvelous job of clearing up some of the myths that still creep onto this site from time to time.

Hats off to your well composed message!

[centex]

Another thing people often overlook is the amount of legal research that is necessary to prepare not just the complaint but also to prepare responses. The availability of online use of West and other services has made research much easier, but there are still some costs associated with that approach. Similarly, there are costs associated with pulling cases off of PACER...although minimal at $.08 a page, they still add up over time.

Admittedly, once you get through the obstacle course the first time, the subsequent trips become a little easier, but if you mess up the first time, you can wind up having something that blew up in your face.

Ken's comments are a very real reminder that all is not the rosy view that some websites would have you believe suing a CA/CRA has as an outcome.

Oh, and remember that even very few attorneys go pro se in matters that involve themselves as a litigant...

[DarkStorm]

I wish I had a choice in this matter, I hate the idea of litigation. I would not bring action against a CA but find myself in the not so unique position of being sued by one. Thanks for the advise and its proving to be every bit as troublesome, time consuming and emotionally draining as you indicate.

[RealtorKen]

I wish I had a choice in this matter, I hate the idea of litigation. I would not bring action against a CA but find myself in the not so unique position of being sued by one. Thanks for the advise and its proving to be every bit as troublesome, time consuming and emotionally draining as you indicate.

<{POST_SNAPBACK}>

Well Darkstorm, some things can't be controlled. Just make sure you go into as an "educated consumer"

Best of Luck!

[Frisbee]

Ken, I kept my mouth shut this a.m. when you started this wonderful topic. However, I've been thinking about it all day and truly believe it should go in the consumer protection or newbie section for everyone to refer to.

Nice work Ken and everyone who responded.

[RealtorKen]

Well thank you Frisbee! Thank you to everyone else that shared feedback as well.

I actually wanted more people to share their experience before I hinted around for the staff to think about moving this topic. (Oops, theres hint #1 )

Glad I could be of service.

[Frisbee]

Second the motion to move to permanent status.

[hoapres]

Hello everyone,

I am writing this with concern.  I am nervous that some may be biting off more then they can chew. 

Being involved myself in more than one -(non credit related) - unlimited jurisdiction lawsuits, one of which settled and another pending, with numerous motion hearings, I consider myself "around the block" regarding lawsuits and other legal actions. One can at least in my case make an almost FULL TIME vocation in legal actions.

So, before you file a pro se lawsuit : (1) It will take TIME (2) The legal system may be biased against you as a pro se litigant (3) If you have the time and pay great attention to detail you may do well as your case is a big deal but to the other lawyer it is just a job (4) If you are meticulous in following the rules and learn the ropes then you may very well earn the respect of judges and other court personnel which can help you.  (5) Always be polite and professional in court.  (6) Make sure the lawsuit is worth doing.

For what is worth, all my credit related issues were solved OUT OF COURT by keeping meticulous records and numerous correspondence. 




We as a community have to help each other and that is exactly what I am trying to do here.  I don't want anyone to be burned in an attempt of litigating violations. This is not legal advice, and I am not an attorney.  I am an average consumer that is sharing knowledge that I have gained throughout my credit repair journey. I am not trying to discourage anyone, just looking to clarify the road ahead.

Stay off the phone!
Send everything CMRRR!

No dispute with the above, the caveat being that once the lawsuit has been filed then you will most likely need to use the phone in talking to opposing consul regarding scheduling.



A lot of people have seen others filing civil lawsuits against Collection Agencies and Credit Reporting Agencies.  I have noticed a lot of you also thinking about taking legal actions. It may seem like a great way to make some quick cash or to get quick results.  It of course, is neither of the two.

Unfortunately, in some cases you trully have to sue.  Before you sue try to get a "slam dunk" case before filing the lawsuit.  Ideally, have a motion for summary judgment written up before filing the lawsuit.




When dealing with some of these unscrupulous companies out there, it WILL get frustrating.

Also, be aware that companies often don't take lawsuit threats particularly from non-lawyers seriously.

If you should file a lawsuit requiring motions then make sure you save the motion as a word document.

A few months ago, I was contemplating taking legal action and as customary I tried to resolve the issue ameicably and mentioned the possibility of a lawsuit. The lawsuit threat was basically dismissed "well, we have heard it all before and won't take it seriously"

I simply sent a couple of word document motion attachements in an e-mail to the
relevant attorney.  Got a VERY quick response to the effect "Oh my GOD, you know what you are doing!"





The thing you have to remember is that the journey you have embarked on has great rewards for the successful.

No doubt the journey will be an experience!


This journey can also lead to a lawsuit being filed against you for an unpaid debt. It can also lead to you waking a sleeping giant. The mentality to go into this should be like you are a fly on the wall collecting information and knowledge.  Once you have all your ammo (evidence) then turn into that bear.

I would be inclined to wait until the debt is SOL time barred before filing a lawsuit.




Everyone must realize that just because a collection agency violates your rights as a consumer, doesn't mean to run out and litigate the matter.

No dispute here, although you may simply run into a CA that does not care and legal action may well be your only option.


  Remember, your here for credit repair NOT courtroom tactics.  The important thing to do is start a paper trail of all correspondences and violations.

No dispute here!


Keep clear and complete records of your journey.  After you have DV'd the collection agency 3-4 times via Certified mail then go back and pick out all the violations and place that in letterform. This letter is basically saying. Look your company has violated all these rules in the FCRA, and FDCPA and I have complete supporting documentation.  You then demand for the validation/deletion.  If no response I would then add to the letter, something to the fact of I am considering legal action. I would then send that out and wait for a response.  I would follow that up with an intent to sue.

Totally agree!

When you send that Intent to Sue letter you better make sure you have the kahonas to actually do it.  If everyone keeps crying wolf, the CA's are just going to laugh.

At this point, I would probably have not only the complaint prepared but also the motion for summary judgment prepared or at a minimum sketched out.


You must completely understand the time and effort involved in such action.  It is in no way (that looks weird   5 words only 11 letters) something to be attempted by the average consumer alone.  I personally would interview a couple of attorney and throw them a couple quick quiz questions. Making sure they know their FDCPA and FCRA.  Most FDCPA and FCRA attorneys work on contingency basis. Due to the simple fact that it is so defined in the FCRA and FDCPA that a successful complaint returns attorney costs. Don't let an attorney double dip!  They will try and demand a piece of the settlement; this isn't like a car accident.  The rules are clearly defined and if a CA breaks them they are liable to YOU.

I have little confidence in attorney's when it comes to attention to detail and case law.  Given that, it never hurts to consult an attorney as : (1) the attorney probably knows trial procedure better than you. (2) learing evidentary foundational requirements is a 1 year law school course and presenting evidence in superior court is DIFFERENT than small claims court (3) in theory at least, give you outside and unbiased advice.



For those of you that think you can take on a case Pro Se (representing ones self) there are a lot of things to be considered and learned.

I agree!

Costs- be prepared to shell out some money. Federal court will cost $250 just to file a complaint.  Local and state courts have a wide range of filing fees. You can't forget the costs for Service of Complaint, Postal Fees, Copy fees, parking fees, and travel fees.  These costs to the eye may seem nominal but they add up VERY quick.

Probably a good idea to allocate $1K in costs and other expenses.  Keep a good record, as costs of suits are often recoverable to the winning party.



Time- For those of you that have done it Pro Se, you know you can never explain how many man/woman hours you invested in a case. That said, unless you have A LOT of free time on your hands, I would not consider Pro Se.

While my cases are more difficult than the typical FCRA cases, I would advice any pro se litigant to allocate a substantial amount of time in any case.



Education - Be willing and prepared to learn and read a lot!  You must learn everything regarding case litigation.  Court room procedures, actual laws, legal terminology, legal forms, complete case procedures from start to finish and much more.

Learn as QUICK as you can! 



Emotions- you must be able to undertake this with a clear mind. If you are going to attempt this, be prepared to give it your all. It will take a lot out of you. It will seem like it is not worth it at times.

Easier said than done, but you must consider your case as a business matter and keep emotions out!




With all that being said, completing a case Pro Se can be extremely rewarding mentally. You would be left with win or lose, a proud sense of achievement.

Losing is never fun, you want to win!



Litigating violations by the collection industry should be your last option. If you have exhausted every other avenue, then litigate it. If you have listened to my suggestions, by this point you should have 6-7 letters you wrote to the violator.  Making sure you have a big stack of supporting evidence. The courts want a clear case and don't want to be burdened with frivolous complaints.  You can even be fined for bringing a frivolous lawsuit to the courts. If you are going to do it, do it right!

Remember, informed consumers are the collection industries worst nightmare!

Good Luck!

For those of you that have the experience of litigating violations please share your thoughts and tips regarding this.

Totally agree!!

<{POST_SNAPBACK}>

[CargoJon]

Lawsuit vet here...

Let me say that I personally think that you really should have all your ducks in a row before pulling the trigger on a suit. So many people on here send 1 or 2 DV letters, the CA verifies, and they want to run off to court. I didn't even sue Equifax until I'd baited them into committing about 6 additional violvations...by that time I had at least one on each baddie in my report and it ended up cleaning me up for good on EQ.

The other thing you have to realize is...these people WILL settle. Unless you're unrealistic about your financial expectations from settlement, they CRA's especially have NO interest in establishing new case law against them. Even worse, they have NO intentions of being made to fix the way they presently do things.

Edited by CargoJon, 20 February 2005 - 01:54 AM.

[creditech]

I'm definitely no credit repair veteran here either, but I think a reading of the FDCPA itself reveals the need for time and patience:

1692k.b."In determining the amount of liability in any section under subsection (a), the court shall consider, among other relevant factors--(1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional."

This is why I used multiple communications with the CA's to begin with. DV, Estoppel, a third letter to the CA and even one to the OC (explaining the law of agency and clean hands), and fourth letter to the CA, but I don't actually get to the ITS part until my fifth letter to the CA (which includes the docket number and a copy of my complaint)...It shows a pattern of behavior by the CA and proves the frequency and persistence that the courts look for.

This approach seems to be working for me. Myfico.com scores have gone from 540 to 696. There is really only one CA who is being stubborn who I have 10 months of violations stacked up on--so we'll just have to see what the future holds.

Edited by creditech, 20 February 2005 - 03:33 AM.

[RealtorKen]

Bump for the weekend crew

[RealtorKen]

Bump

[JessicaRabbit88]

Good stuff in here.

Only thing I would add is that know you are right, and don't forget that part -- even when the pushing gets hard. They will try and tell you why you don't have a case, or where you are weak ... consider this, if your case wasn't strong why are they fighting it instead of filling a motion to dismiss? Also the other thing is if your case is rock solid, push for a settlement before depositions, that could cost into the thousands to pursue or realitively cheap depending on what type you use, but either way it is going to take a ton of time and energy you may not have.

I will chime in as I remember other things.

Good thread,
Jessica

[southsidecali]

Thanks for all the info!!! It is ALOT of hard work, and a Hell of a rollercoaster ride of emotions!

I am trying to by all means to avoid litigation, I believe if and when you exhaust all means then to file.

I am currently trying a different venue: filing complaints with the governing agency i.e PUC, FCC. Hopefully these work if not, I believe I have enough documentation to go in along with an actual govt entity documentation as supporting paperwork. I would love to recieve Removal letters or settlement but so far no luck.

Yep, this does need to be moved to newbie section. Would it also be possible in outlining a filing lawsuits for dummies cheatcheat? or would that be too much info and more would be jumping into that instead of going the long route? Kind of.."So you have battled for xx mos, have xx letters, is it time to sue? Checklist of sorts would be very helpful.

[RealtorKen]

Yep, this does need to be moved to newbie section. Would it also be possible in outlining a filing lawsuits for dummies cheatcheat? or would that be too much info and more would be jumping into that instead of going the long route? Kind of.."So you have battled for xx mos, have xx letters, is it time to sue? Checklist of sorts would be very helpful.

<{POST_SNAPBACK}>

southsidecali,

The only problem we face in writing something like what you are saying is, we are not attorneys. However, it is an excellent idea. One day I have some time once my Palisades case is over I will try to write up an "experience" guide.

[RealtorKen]

Can I get a little woot woot!

[Quit Screwing Me]

woot woot!

[RealtorKen]

woot woot!

<{POST_SNAPBACK}>

LMAO

[kittenroni]

EXCELLENT topic EXCELLENT advice !!! Should definitely be a sticky

[aescutie]

bump

[zippykaros]

Excellent post Ken..your statements can only be fully appreciated by someone who has made some of the mistakes you've mentioned in your post. Great info on not waking up any sleeping giant with an ITS letter while still in the SOL, a mistake made by me in the very 'i'm gonna get them days.' Knowledge, without question, is power. Papertrail is fully what this is all about...again, great post and a *woot woot*