Sued under FDCPA, now they want to remove

[marbol]

I sued a CA in small claims court in my county in Texas.

 

Now they want to "remove" the case to Federal Court stating that it was a Federal statute to begin with (FCRA and FDCPA).

 

How can I defend this? If this is true, then we pretty much cannot use the small claims courts like they were intended, right?

 

Thanks

[Jen23514]

I sued a CA in small claims court in my county in Texas.

 

Now they want to "remove" the case to Federal Court stating that it was a Federal statute to begin with (FCRA and FDCPA).

 

How can I defend this? If this is true, then we pretty much cannot use the small claims courts like they were intended, right?

 

Thanks

 

you quote federal laws, then you'll have to deal with the federal courts.

[pryan67]

you can fight the motion for removal...but it will be tough...FDCPA/FCRA says that any court of competent jurisdiction can hear the case...small claims courts CAN hear them....but you'll have to argue your case with the judge....

 

 

what's the backstory on this? Why didn't you use TFC?

 

 

moving this to the main credit forum

[db23]

http://tlo2.tlc.state.tx.us/statutes/docs/...0.000392.00.doc

 

Take a look at that, it's the Texas Debt Collection Act which is a supplement to the FDCPA. At the very least it could help you prove that the Texas small claims court is competent to hear the case.

[centex]

http://tlo2.tlc.state.tx.us/statutes/docs/...0.000392.00.doc

 

Take a look at that, it's the Texas Debt Collection Act which is a supplement to the FDCPA. At the very least it could help you prove that the Texas small claims court is competent to hear the case.

 

Well, strictly speaking, a JP is not competent in most of the 254 counties to hear complex litigation. Further, the moment federal statutes are cited, the case is ripe for removal (a fact long noted here and elsewhere). The only way to ensure one stays in Texas courts as opposed to federal is to avoid ANY reference to federal law in the claims. That means that ONLY claims founded upon Texas Finance Code and the Texas Business and Commerce Code (for the Deceptive Trade Practices Act violations that had the required 60-day notice to cure) should be included in the filings...

[HereKittyKitty]

OP, I sure wish you'd asked around here before citing federal violations in a state small claims case. We'd have told you not to do that.

[chriswufgator]

I still think there's a benefit to it...the extra hoop for them to jump through = more $$$ they have to spend. Lol.

 

So fight the removal just to waste their $450/hr corporate lawyer's time and travel expenses. Make them bleed.

Edited May 30, 2008 by chriswufgator

[centex]

I still think there's a benefit to it...the extra hoop for them to jump through = more $$$ they have to spend. Lol.

 

So fight the removal just to waste their $450/hr corporate lawyer's time and travel expenses. Make them bleed.

 

My guess is that OP didn't want to have to learn procedure at the State level, much less become sufficiently proficient in federal procedure and will soon find themselves with an MSJ being served in the case...

[credicredo]

You can sue in small claims even if it is a federal statute, what I have done in the past, is, Sue for a few state violations as well, that way there you can argue that, the state court is the proper venue due to the state violations and they can hear the federal ones as well, I was lucky the CA I sued did not request removal. But they do have that option at their expense.

[centex]

You can sue in small claims even if it is a federal statute, what I have done in the past, is, Sue for a few state violations as well, that way there you can argue that, the state court is the proper venue due to the state violations and they can hear the federal ones as well, I was lucky the CA I sued did not request removal. But they do have that option at their expense.

 

With statutes as strong as exist in Texas, however, the better thing to do is avoid federal ALL TOGETHER. Once removed, a case that included federal questions ISN'T coming back to dogbite court. And, the case NEVER should have been in dogbite court to begin with...

 

Not to mention that by insisting on the federal claims, they effectively precluded the ability to take a bite at the uncapped damages that would have existed at the Texas level...

 

In keeping with the canine descriptors, it is safe to say that a pooch has been screwed here.

[EarnIt]

In keeping with the canine descriptors, it is safe to say that a pooch has been screwed here.

 

So, you are saying OP was/is "barking" up the wrong tree?

 

Sorry couldn't resist. It was so much "pun".

[marbol]

You can sue in small claims even if it is a federal statute, what I have done in the past, is, Sue for a few state violations as well, that way there you can argue that, the state court is the proper venue due to the state violations and they can hear the federal ones as well, I was lucky the CA I sued did not request removal. But they do have that option at their expense.

 

With statutes as strong as exist in Texas, however, the better thing to do is avoid federal ALL TOGETHER. Once removed, a case that included federal questions ISN'T coming back to dogbite court. And, the case NEVER should have been in dogbite court to begin with...

 

Not to mention that by insisting on the federal claims, they effectively precluded the ability to take a bite at the uncapped damages that would have existed at the Texas level...

 

In keeping with the canine descriptors, it is safe to say that a pooch has been screwed here.

 

 

So does that mean I cannot drop this and re-file using the Texas statutes? And why can't I argue that the small claims court is proper? The statute said I can bring the claims in any competent court - they woudn't have done that if it wasn't intended to let small claims cases proceed there would they?

 

Can I go ahead and sue the using the Texas statutes? And keep fighting this one?

[walterg55]

You can sue in small claims even if it is a federal statute, what I have done in the past, is, Sue for a few state violations as well, that way there you can argue that, the state court is the proper venue due to the state violations and they can hear the federal ones as well, I was lucky the CA I sued did not request removal. But they do have that option at their expense.

 

With statutes as strong as exist in Texas, however, the better thing to do is avoid federal ALL TOGETHER. Once removed, a case that included federal questions ISN'T coming back to dogbite court. And, the case NEVER should have been in dogbite court to begin with...

 

Not to mention that by insisting on the federal claims, they effectively precluded the ability to take a bite at the uncapped damages that would have existed at the Texas level...

 

In keeping with the canine descriptors, it is safe to say that a pooch has been screwed here.

 

 

So does that mean I cannot drop this and re-file using the Texas statutes? And why can't I argue that the small claims court is proper? The statute said I can bring the claims in any competent court - they woudn't have done that if it wasn't intended to let small claims cases proceed there would they?

 

Can I go ahead and sue the using the Texas statutes? And keep fighting this one?

 

You failed to DV properly (to use TX law) and as such you will not be able to use TX law. There was some specific things you needed to do. Just a DV won't cut it. Shame, TX law puts a stake in the scumbags heart. Small claims court in TX is also worthless generally when it comes to sueing a JDB/CA.

 

Here is a prime example of why My two TX threads should be stickies.

Edited May 31, 2008 by walterg55

[centex]

You can sue in small claims even if it is a federal statute, what I have done in the past, is, Sue for a few state violations as well, that way there you can argue that, the state court is the proper venue due to the state violations and they can hear the federal ones as well, I was lucky the CA I sued did not request removal. But they do have that option at their expense.

 

With statutes as strong as exist in Texas, however, the better thing to do is avoid federal ALL TOGETHER. Once removed, a case that included federal questions ISN'T coming back to dogbite court. And, the case NEVER should have been in dogbite court to begin with...

 

Not to mention that by insisting on the federal claims, they effectively precluded the ability to take a bite at the uncapped damages that would have existed at the Texas level...

 

In keeping with the canine descriptors, it is safe to say that a pooch has been screwed here.

 

 

So does that mean I cannot drop this and re-file using the Texas statutes? And why can't I argue that the small claims court is proper? The statute said I can bring the claims in any competent court - they woudn't have done that if it wasn't intended to let small claims cases proceed there would they?

 

Can I go ahead and sue the using the Texas statutes? And keep fighting this one?

 

Sure you *could* dismiss and later pay a new filing fee after you do your homework. However, since you are so hellbent on going to dogbite court, let me ask you just how much attention you paid to the race in the last election. That's what I thought... Very few people truly understand just how UNqualified most JP jurists happen to be...

[marbol]

Sure you *could* dismiss and later pay a new filing fee after you do your homework. However, since you are so hellbent on going to dogbite court, let me ask you just how much attention you paid to the race in the last election. That's what I thought... Very few people truly understand just how UNqualified most JP jurists happen to be...

 

Yea. Thank you all! This is really good information. I sure could have used to do more research.

 

No, I am not hellbent on JP court - but I wanted to go pro se, and that's the only one I thought I'd get traction on. I didn't think I should go pro se in a "real" court. I sure didn't know that Texas law was stricter, and so I guess you live and learn.

 

At any rate, what does my keeping up with politics have to do with this? I am very involved in politics and am a delegate. I will be going to the state convention in a while. I keep up with it a lot. Thank you.

 

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.

 

And this one, - this is the first time I'm getting a devil of a time with. So I have learned a lot from you. I thank you.

 

The purpose of me filing these things were to clean up the wrong information that got into my credit report. These huge companies just put erroneous stuff on there and then refuse to follow proper procedure to clean it up. In every one of the cases, including this one, the defendents erased all of the pertinent information from my credit report within days of being served. So these cases have had the effect I've wanted.

 

I am not trying to get rich. I have already accomplished my goals. I just want now to be compensated for my expenses in filing fees, etc. plus a few hundred for my time.

 

What gets me is that the amount I sued for has already been spent by this one defendent. Their legal fees must have already surpassed the few hundred dollars I asked for. So I don't understand their point. If they are trying to get a judgement from me for legal fees, surely they must know that having bad credit already, I don't think they actually think it will help them to have me indebted to them.

 

Anyway, I suppose I could drop the suit now, or could I? Would I need to drop it in federal court? Surely I can do that and then file again in dogbite court? Or should I go ahead and venture pro-se into the federal or state courts? I have already succesfully won 4 cases in US Tax Court, and lost one. So I can hold my own with pleadings and the like. But I would probably get tripped up in one of the traps.

 

But like I said, the lawsuits have already accomplished their intended results. Maybe I should just look for a lawyer and see if they can get something from this. I know that a lady got 800 thousand dollars last year from Trans Union when she really had no real damages. See the case here: http://news.findlaw.com/andrews/bt/prv/200...508_cortez.html

 

Anyway, thanks for the help. I guess I might as well just call their lawyer after I attempt to fight the 'removal' - which by the way, was not filed by them within the allowed 30 day period. Isn't that a good defense?

[marbol]

My guess is that OP didn't want to have to learn procedure at the State level, much less become sufficiently proficient in federal procedure and will soon find themselves with an MSJ being served in the case...

 

What is an MSJ?

 

Yep - I didn't want to learn procedure. I don't want to get rich - i just wanted to get their attention.

 

Which i did - but not exactly the kind of attention i wanted in this case.

[marbol]

You failed to DV properly (to use TX law) and as such you will not be able to use TX law. There was some specific things you needed to do. Just a DV won't cut it. Shame, TX law puts a stake in the scumbags heart. Small claims court in TX is also worthless generally when it comes to sueing a JDB/CA.

 

Here is a prime example of why My two TX threads should be stickies.

 

Absolutely! Please, moderator, make the Texas threads into stickies. Texas law (after I read it) is much better.

 

Thank you all for taking your time to help people who need help.

[centex]

At any rate, what does my keeping up with politics have to do with this? I am very involved in politics and am a delegate. I will be going to the state convention in a while. I keep up with it a lot. Thank you.

 

Because JP's are elected officials...very few voters ever bother to look at the qualifications of the people they vote for in judicial races. As a result, we get stuck with a lot of really crappy judges in some of the offices, like JP courts.

[marbol]

Update:

 

They called and we settled. They remove everything from my credit report (they already did) and they pay me for my filing fees, my time, expenses (CMRR's, etc.) and double that amount for my time I spent. Not too bad. I probably could have held out- but this is what I wanted - I know I am not going to get rich.

[RDW12228]

Update:

 

They called and we settled. They remove everything from my credit report (they already did) and they pay me for my filing fees, my time, expenses (CMRR's, etc.) and double that amount for my time I spent. Not too bad. I probably could have held out- but this is what I wanted - I know I am not going to get rich.

 

How did you get compensated for your time being pro se?

[Credit Card Manager]

Update:

 

They called and we settled. They remove everything from my credit report (they already did) and they pay me for my filing fees, my time, expenses (CMRR's, etc.) and double that amount for my time I spent. Not too bad. I probably could have held out- but this is what I wanted - I know I am not going to get rich.

 

How did you get compensated for your time being pro se?

 

I took from it that they took the filing fees + expenses and doubled it to compensate for his/her time.

[climbhigh]

Wait a minute. The CA was going to go to court with you but only if it got moved to federal court. Then all of the sudden today they had a change of heart and decided to give you double the amount of expenses that you have incurred for filing your claim? You said that it was not on your credit report so if it was not on your credit report then why did you sue them? Wow. My first reaction is that is incredulous. My second reaction is wow and congrats on getting them gone. Totally wow.

[RDW12228]

Something seems lacking here...

[VPofCredit]

Wait a minute. The CA was going to go to court with you but only if it got moved to federal court. Then all of the sudden today they had a change of heart and decided to give you double the amount of expenses that you have incurred for filing your claim? You said that it was not on your credit report so if it was not on your credit report then why did you sue them? Wow. My first reaction is that is incredulous. My second reaction is wow and congrats on getting them gone. Totally wow.

 

 

They removed it from his credit report AFTER they were served!.

[RDW12228]

Something still seems strange here. OP makes it sound too easy...