I sued in small claims under FDCPA

[marbol]

What is the name of your state? TX

I sued a collection agency under FDCPA in small claims court in Texas, using 15 U.S.C. 1692k (d):

"An action to enforce any liability created by this subchapter 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."

And now, they have filed a "Notice of Removal" and intend to remove the suit to Federal Court.

How can I defend this? These types of cases go to Small Claims all the time.

Should I protest to the court about why? Should I just cite this law, or go into other reasons why they should not be able to bring it out of the small claims court.

Also, they took more than 30 days to file the Notice of Removal. My understanding is they have 30 days from date of service to do this. Is that correct?

THanks

 

[tranquility]

I don't think you *can* really fight this. While I'm sure it is a tactic to prevent you from prosecuting your case, removal can very well be appropriate. You should answer that small claims is the most appropriate forum because of the amount of damages and because of the convience of the parties, but I don't think you'll win.

 

[seniorjudge]

What is the name of your state? TX

I sued a collection agency under FDCPA in small claims court in Texas, using 15 U.S.C. 1692k (d):

"An action to enforce any liability created by this subchapter 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."

And now, they have filed a "Notice of Removal" and intend to remove the suit to Federal Court.

How can I defend this? These types of cases go to Small Claims all the time.

Should I protest to the court about why? Should I just cite this law, or go into other reasons why they should not be able to bring it out of the small claims court.

Also, they took more than 30 days to file the Notice of Removal. My understanding is they have 30 days from date of service to do this. Is that correct?

THanks

You are the one who caused the removal by doing this: I sued a collection agency under FDCPA in small claims court in Texas, using 15 U.S.C. 1692k (d).

Texas (nor any other states') small claims courts cannot hear cases under Federal law.

 

[TigerD]

Have they filed their counter suit against you yet?

Marbol, I reread your posting history. It is painfully apparent that you have no idea of what the FDCPA actually says or means. You need to get a lawyer immediately. You are now headed to federal court. And while I don't think you were capable of handling your small claims case yourself, you most definitely are not capable of handling a federal case pro se.

DC

 

[nrknlknek]

If you are suing under a feneral statute, small claims court would not have jurisdiction. You will need to retain counsel as most federal judges will not allow a Plaintiff to proceed pro se.

 

[marbol]

No.

FSCPA specifically allows me to file in small claims court.

"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."

A small claims court is "any
other court of competent jurisdiction"

Plus they exceeded their 30 day time limit - They filed the Removal more than 30 days after they were served.

So.....

 

[marbol]

If you are suing under a feneral statute, small claims court would not have jurisdiction. You will need to retain counsel as most federal judges will not allow a Plaintiff to proceed pro se.

These suits happen all the time in small claims court. I sure could have used to do more research. But you know, you live and learn. But just for those who think I am totally unprepared - I wanted to go pro se, and that's the only one I thought I'd get traction on. Inhindsight, I should have used Texas law which is stricter than federal.

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.

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 defendants 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 defendant. 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 judgment 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 small claims court? Or should I go ahead and venture pro-se into the federal or state courts? I have already successfully 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. Even though a lot of it isn't help - it was just people berating me and telling me what a dumbass I am when they really don't know - 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?

 

[Skapare]

If you are suing under a feneral statute, small claims court would not have jurisdiction. You will need to retain counsel as most federal judges will not allow a Plaintiff to proceed pro se.

So basically, Federal courts are not available to 20% of the population?

 

[justalayman]

why are you even bothering to file pro se? The fdcpa allows for attorneys fees along with the damages award.

 

[las365]

Inhindsight, I should have used Texas law which is stricter than federal.

What's your SOL date on your claims? Perhaps you might consider nonsuiting without prejudice and then re-filing in state court under the state law you mentioned.

 

[Texas Pooh]

Marbol,

The issue is that cases that arise under the FDCPA can be heard in either state or federal court. However, because the case "arises" under federal law, if a defendant chooses to remove the case to federal court, the defendant may do so. The right to remove a case arising under federal law can be challenged by you filing a motion to remand in federal court stating the defects in the removal process. Motions to remand must be filed within 30 days of the notice of removal.

Absent a technical defect in the notice of removal, you are going to have a very difficult time remanding the case, as there is pretty much an absolute right for a defendant to have the matter heard in federal court if the federal cause of action "predominates" the plaintiff's complaint. This is, by the way, the subject of much litigation in federal courts and is highly technical in nature. The fact that a state court can hear the action is irrelevant.

Notice of removal must be filed within 30 days of the service of the pleading that first states the federal cause of action. Thus, your argument about the thirty day issue is interesting and might form the basis of an argument for remand if in fact they failed to remove within 30 days of service.

Most federal courts in Texas allow pro se parties; however, most of the federal courts also require mandatory electronic filing, which may cause a logistical problem. What district court has the case been removed to?

 

[marbol]

What's your SOL date on your claims? Perhaps you might consider nonsuiting without prejudice and then re-filing in state court under the state law you mentioned.

1 year, in Texas. Their lawyer just sent me an email. I believe we may settle this thing this week.

 

[marbol]

Marbol,

The issue is that cases that arise under the FDCPA can be heard in either state or federal court. However, because [...]
Notice of removal must be filed within 30 days of the service of the pleading that first states the federal cause of action. Thus, your argument about the thirty day issue is interesting and might form the basis of an argument for remand if in fact they failed to remove within 30 days of service.

Most federal courts in Texas allow pro se parties; however, most of the federal courts also require mandatory electronic filing, which may cause a logistical problem. What district court has the case been removed to?

The filing of the removal is about 10 days over the 30 day time limit. I don't think I want to proceed pro-se. But I might.

This is a small case. They have already spent far more in legal fees doing this little trick, than what I would have settled for. So I really don't understand it. Also, they've removed the erroneous items from my credit report (which is really what I most wanted to begin with) - I also want to recoup my filing fees and various expenses. I'd have probable settled for less than 1 thousand. But I guess they would rather do this.

Is there any risk to me in filing a motion to dismiss w/o prejudice and just refile in Texas court under TFC? Will they come after me for attorney's fees in defending this? Can they?

The court they removed to is in Dallas.

 

[TigerD]

Will they come after me for attorney's fees in defending this? Can they?

Can they? Yes.
Will they? My crystal ball is broken. I would.

DC

 

[marbol]

Can they? Yes.
Will they? My crystal ball is broken. I would.

DC

In that case, I'll show them how the issues are not even mine. I did not owe those accounts- so if you came after me for money after you did something wrong, you'd be loosing.

The problem is from what I can see here, is that you assume that in each case, the person being wronged automatically owes the money. Sorry - that isn't the case. If a collection agency wrongs someone, which, believe it or not... They do this sometimes, then it's not just a matter that the person needs to pay - and be sued.

At any rate, they called me this morning. We settled. They will remove all the things from my credit report - (they did already) - and pay me for my time and filing fees, etc. plus a little bit more.