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Small Claims, Suing a CA

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Anonymous
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Small Claims, Suing a CA

I don't want to get into much detail about the background of the debt, but here's my current situation.

 

Over the last few months I have been sending certified letters back and forth with the CA. I began with the standard DV letter, took that information and tracked down the original creditor and additional information about the account. I found out that it wasn't actually my debt, but my ex-wife's accounts, however I was told I was still responsible because we were married at the time.

 

Despite all of this, instead of continously fighting over it, And since it was for only $100. I decided to take the approach of a pay for delete request.  I submitted the pay for delete letter, and received a confirmation back from them that they were in agreement. I then submitted payment and waited.  After about 30 days, I never heard back.  I sent a follow up letter asking for status and they said that they had never received payment.  I went to the bank and validated that the payment was received and deposited.  I followed up once again with a letter stating that it was paid and I re-outlined the terms of the agreement to delete the accounts from my credit report immediately.

 

A few weeks later I received a notice from them that the payment was received and that they would be contacted the Bureaus that the accounts were PAID IN FULL.  I submitted a final letter stating that the status of paid in full was not what we had agreed upon and informed them they had an additional 15 days to correct the error or I would be taking legal action against them.

 

So here's where we are.  It's been 15 days, they have not updated or deleted the record on my credit report and I want to take them to small claims.

 

I guess I'm looking for some advice.  How much can I ask for in damages? What reasons can I sight on the court forms? I feel I have enough information to show they breached our contract, let alone enough information to prove that the original debt wasn't even mine.

 

Looking for any thoughts anyone has.  Thanks!

 

 

Message 1 of 18
17 REPLIES 17
HoldingOntoHope
Valued Contributor

Re: Small Claims, Suing a CA

I would think you've given up any claim on the original debt not being valid by your payment. As to breach of contract I would guess you would need to research your particular state laws to see if your letters and their agreement are an enforceable contract. The nice thing about most small claims courts is you don't need a lot of legal language and citations to file the complaint, but you are going to have to establish a violation and actual damages to prevail at anything.

 

Have you recently applied for credit (after paying this debt) and had a letter from the creditor say you did not get best terms available because of their reporting. And is the rest of your credit report squeaky clean and this is the only blemish? I have no legal background but I have filed small claims cases against local businesses twice over the years for unsatisfactory services and prevailed in both cases. But they contacted me and we settled before the court date.

Best financial advice I ever got: "Just imagine what an adult would do and do that."

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Message 2 of 18
Walt_K
Senior Contributor

Re: Small Claims, Suing a CA

You shouldn't need additional consequential damages.  Assuming you have a valid agreement, your agreement was that you would give them $100 in exchange for an action, credit reporting deletion.  You can enforce the contract or at the very least get your money back.  If you pay someone to do something and they don't do it, that is your injury.  You don't need further injury.

 

ETA:  I see that OP asked for how much he can ask for in damages.   For that, I think I would agree that you would have to show additional damages.  But if you just want them to honor the agreement, in other words, specific performance, you don't need anything further.


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Message 3 of 18
kjm79
Valued Contributor

Re: Small Claims, Suing a CA

I'd ask for specific performance, as stated, in that they delete the account as agreed or your money back.  Ask for your court filing fees back, I'd also include your certified mailing costs, and then "any other relief the Cout deems just". 


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Message 4 of 18
GregB
Valued Contributor

Re: Small Claims, Suing a CA

I am curious if anyone suggesting a suit in Small Claims Court regarding specific performance has personal experience with such a suit? It is specifically forbidden in every jurisdiction where I have experience - a dozen different courts in 3 states.

 

In addition, anything beyond direct damages is very difficult in my experience. O6 commented 2-3 weeks ago that he thought Small Claims was easy. HIs experience must be in a completely different jurisdiction. This might vary by the court but the problem is going to be proving specific monetary damages.

 

The OP has stated that his ex-wife was responsible for the accounts but indicated they were married at the time. If so that will be difficult but he might have a case against his ex-wife depending on the Judgement of Dissolution.

 

Perhaps the threat of having to go to court and possibly refund the OP's $100 would cause the CA to remove the collection. This is the main desire of the OP. That certainly might work but I wouldn't get too excited about getting a significant amount of money. This is not legal advise but just general observations based upon my experience.

Message 5 of 18
Anonymous
Not applicable

Whenever I send in settlements, instead of taking the &qu...

Whenever I send in settlements, instead of taking the "Pay for Delete" route of fixing my credit the collection agencies, I always draft a Non-Disclosure Agreement instead.

 

My NDAs state that once payment has been remitted by me for the alleged debt, then:

 

1. Neither me nor the Collection Agency (and it's assigns) shall disclose any information in relation to the account, except for what has already in public knowledge.

2. The alleged debt is extinguished in it's entirety. 

3. No 1099's shall be issued (if the portion of the alleged debt cancelled is >$600)

4. Liquidated damages of $100,000.00 shall be paid by party who breaches this contract, accelerated, and due in full.

 

With this route, all we need to do is for us to sign in duplicate and send one copy to each other.

 

Edited. They should fall off after 30 days, or less.

 

Edited to remove a comment  which violates our Credit Repair Discussion Guidelines, Terms of Service, and User Guidelines that prohibit the promotion of certain types of credit repair. - llecs, myFICO moderator

Message 6 of 18
llecs
Moderator Emeritus

Re: Whenever I send in settlements, instead of taking the &qu...

Ikuomanero, I would be worried about the no-1099 comment or provision. It's my understanding that any agreement that violates federal law can be voided. Any OC or CA would have to, and is mandated by law to report a 1099-C [if settled] . Now it doesn't mean that everyone does that (thankfully for us who are/were ever with bad debt). I'm not saying never to try this method, but if the OC or CA isn't open to a simple PFD agreement, then I would think it would be a challenge to get them to accept this.

Message 7 of 18
Anonymous
Not applicable

Re: Whenever I send in settlements, instead of taking the &qu...

Well it will only cost my $50 to take them to court.  For me, it's worth the $50 just to try and get the items deleted as they said they would.  If I lose, I lose.  But asking for the original $100 + $50 + expenses should be enough for me to get their attention.  It would cost them nothing to delete the record and more just in gas and time to go to the court to try and defend their case.

Message 8 of 18
Anonymous
Not applicable

Re: Small Claims, Suing a CA


@Anonymous wrote:

 

Despite all of this, instead of continously fighting over it, And since it was for only $100. I decided to take the approach of a pay for delete request.  I submitted the pay for delete letter, and received a confirmation back from them that they were in agreement.  


Twister,

 

What, exactly, did they agree to, and what was their method of agreement?

Message 9 of 18
Anonymous
Not applicable

Re: Whenever I send in settlements, instead of taking the &qu...


@llecs wrote:

Ikuomanero, I would be worried about the no-1099 comment or provision. It's my understanding that any agreement that violates federal law can be voided. Any OC or CA would have to, and is mandated by law to report a 1099-C [if settled] . Now it doesn't mean that everyone does that (thankfully for us who are/were ever with bad debt). I'm not saying never to try this method, but if the OC or CA isn't open to a simple PFD agreement, then I would think it would be a challenge to get them to accept this.


I do understand your position, but I will need to respectfully disagree with you.

 

As far as I know, the requirement to issue a 1099c is a directive from the IRS, rather than law.

 

In regards to issuance, the IRS has made it clear that OC's are responsible for issuing 1099's, but the jury is still out on if this also applies to JDB's and CA's.

 

My position on a JDB or a CA issuing a 1099 is that they should not be allowed to file one, since it was not "them" that incurred a financial loss.

 

My suggestion is to make sure that they, indeed, do not do this via a NDA.

 

 

Message 10 of 18
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