Small claims out of state CA for FDCPA and Rosenthal violations?

[MiguelT]

What is the name of your state (only U.S. law)? CA

To give a brief background, I have an out of state collections agency that has violated both the Rosenthal Act and the Fair Debt Collection Practices Act. I intend to file claims for $1,000 on the Rosenthal Act violation and $1,000 for the same violation mirrored in the FDCPA.

After some research I've come across conflicting accounts that there is a civil procedure in California that allows you to file suit for the federal violation under state jurisdiction if they also broke similar state laws. I know they'll try to get it moved to federal either way, so I want to have a preemptive argument to put into the complaint when I file it with small claims. I know that I can get them in small claims for the Rosenthal Act, but I would like to add the FDCPA into the complaint as well.

Also, since they are out of state would I need to find an agent for service of theirs in California, or would I need to serve their agent for service in their home state?

Thanks very much in advance for your time, it's much appreciated!

 

[tranquility]

Does FDCPA give jurisdiction to federal court for all violations? If so, I don't see what you could put before a claim for removal to prevent it. As to most everything else, you'd have to look at the motion and try to find flaws with their claim to prevent it.

 

[justalayman]

a couple problems with trying what you are. This is from the FDCPA:

§ 817. Exemption for State regulation
The Commission shall by regulation exempt from the requirements of this title any class of debt collection practices within any State if the Commission determines that under the law of that State that class of debt collection practices is subject to requirements substantially similar to those imposed by this title, and that there is adequate provision for enforcement.

that means if there is similar protection (including means of enforcement) via the Rosenthal act, the FDCPA is not applicable so you would not be able to file duplicating claims.

at least if the CA disputes the claim on those grounds.

as to jurisdiction and venue:

(d) An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs

My understanding is that this can be filed in a state court.

OP needs to look at the requirements for service though. It seems like service has to take place in California if I remember correctly.

 

[MiguelT]

that means if there is similar protection (including means of enforcement) via the Rosenthal act, the FDCPA is not applicable so you would not be able to file duplicating claims.

OP needs to look at the requirements for service though. It seems like service has to take place in California if I remember correctly.

Thanks very much for your reply, this answers everything and then some, I'll see if I can find their agent for service and serve them in CA. Unfortunately the only thing I can find in CA is a forfeited agent of service license way back in '05... The search begins

 

[xylene]

Even if you can claim this falls under a small claims venue, which I doubt, the collector can and will either (or both) move to a "big boy" court venue or appeal similarly, massively increasing your legal expenses and required expertise.

 

[MiguelT]

So essentially either way I'm looking at them pushing it into civil court?

 

[xylene]

So essentially either way I'm looking at them pushing it into civil court?

They have every interest to do so and every right to push it.

They have counsel, and they have every interest to squash people from suing them easily.

When they move for civil court, I can't see your argument to keep in small claims carrying any weight at all.