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Amend Claim

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cnj

Junior Member
What is the name of your state? CA

I have filed a small claims case against a debt collector for FDCPA and FCRA violations. I think I have a stronger case if I do not sue for some damages.

Should I file an amendment with the court, or will the Judge decide to award money for some damages and not others? Should I present the entire case and let the Judge decide? If some of my claims do not pass muster can I still be granted damages for the claims that do?
 


dcatz

Senior Member
Offered as general responses to general questions re: CA Small Claims:

Should I file an amendment with the court, or will the Judge decide to award money for some damages and not others?

Unless the contemplated “amendment” will completely change the nature and basis of your claim (in which case, it would be better to dismiss, re-file and re-serve), let the bench officer sort out what you’re doing. I infer that that includes withdrawing a claim for damages for some alleged injuries and not others . You can tell the bench officer that you’re withdrawing your claim for damages for certain injuries at the beginning of the hearing if you wish. Otherwise the judge will decide whether all or any have been proven and whether all or any warrant an award of damages.

If some of my claims do not pass muster can I still be granted damages for the claims that do?

(See above for general response re: multiple SC Court claims.)

BTW, while this is more in the nature of editorializing than advice, I think CA SC is a very poor forum for presenting claims for alleged violations of federal laws, particularly when your state has its own version of the FDCPA and its own statutes concerning credit reporting and credit denial disclosures.

Sorry to say that and good luck, whatever is going on.
 

cnj

Junior Member
Thank you for your quick reply.

As for CA FDCPA and FCRA regulations, I always thought that federal regulations trumps state regulations. Does this not apply in SC court?
 

seniorjudge

Senior Member
Thank you for your quick reply.

As for CA FDCPA and FCRA regulations, I always thought that federal regulations trumps state regulations. Does this not apply in SC court?
There is no such thing as a Federal small claims court.

If you filed a case in small claims court with federal law as its basis, it will be kicked out of court.

Also, you should've counterclaimed when the creditor sued you.

In other words, you are out of luck since you sat on your rights and did nothing.
 

cnj

Junior Member
The creditor has not sued me. I have no judgments against me.

I am suing the collection agency that has assumed the alleged dept from the original creditor for not contacting me VIA USPS mail about the debt, not responding to debt validation requests, contacting me via phone at unreasonable times, contacting me via phone when I sent a letter to cease and desist all communication via phone and to only contact me via USPS mail. All of the above is covered by the FDCPA.

The collection agency has contacted a third party, the three credit bureaus agencies about the debt before contacting myself. The creditor has validated the debt with the bureaus before myself. I do believe his is covered under the FCRA, that I must do more research in however.
 

seniorjudge

Senior Member
The creditor has not sued me. I have no judgments against me.

I am suing the collection agency that has assumed the alleged dept from the original creditor for not contacting me VIA USPS mail about the debt, not responding to debt validation requests, contacting me via phone at unreasonable times, contacting me via phone when I sent a letter to cease and desist all communication via phone and to only contact me via USPS mail. All of the above is covered by the FDCPA.

The collection agency has contacted a third party, the three credit bureaus agencies about the debt before contacting myself. The creditor has validated the debt with the bureaus before myself. I do believe his is covered under the FCRA, that I must do more research in however.
So you have suffered no damages.

Good luck with filing a no-damage case in Federal court.

You are liable to get slapped with a huge frivolous lawsuit bill.

Keep in touch.
 

cnj

Junior Member
I have been denied credit because of the CA reporting in my credit report, I have letters from credit card companies stating that as the only reason. I have letters from current creditors stating they are reducing my credit line and increasing my APR solely due to the the collection account reporting.

I am relying heavily on the following statement:

Under the Fair Debt Collection Practices Act, you have the right to sue a debt collector in state or federal court within one year from the date of the violation. If you win, you may recover damages in the amount of any losses you suffered as a result of the violation, plus an additional amount of up to $1,000.00. You may also be able to recover court costs and attorney fees.
 

cnj

Junior Member
Will do....maybe I'll get a Judge on a good day and will set CA precedent.

I hope the judge in your screen name is not any indication of your job others I just may be out of luck.
 

dcatz

Senior Member
As for CA FDCPA and FCRA regulations, I always thought that federal regulations trumps state regulations. Does this not apply in SC court?

Take a close look at the federal statute. 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. Your state is consistent and more rigorous.

However, that wasn’t the reason for the comment. Theoretically, you can do it relying on the less onerous federal statute. Theoretically, it can be done in Small Claims – i.e. there is no prohibition (‘tho I’ve never seen it happen) but I don’t think the bench officer is going to like it, assuming that he/she has a ready acquaintance with the Acts.

The reason for the comment is that I personally don’t believe that the expedited and informal nature of Small Claims lends itself well to the potentially complicated evidentiary showing that might have to be made to meet your burden of proof. Add to that the fact that CA SC doesn’t permit discovery and your choice of forums seemed questionable to me.
 

dcatz

Senior Member
Oh, and while you probably made the comment tongue-in-cheek, SC is a "court of no precedent". However you come out (and it would be instructive to hear the results), you are not going to establish new "black letter law" in Small Claims.
 
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