Has anyone filed small claims case against creditor for false FDCPA? Advice sought

[PeoplePatch]

I filed a small claims deft (case) against a collection agency for filing alleged violations of the Fair Debt Collections Practices Act (FDCPA).  We appear to plead soon.  The collection agency probably doesn't know I have a letter from the hospital stating the debt was never owed.  More details to the case......Question:  anyone had experience with like matters in small claims?

[JoeBJay20]

Welcome to the forums!

While I personally haven't done it, sometimes a lawsuit is needed to get information corrected on your credit report. However, you typically want to be sure you exhausted all other possibilities in getting the issue resolved. Have you requested verification of the debt with the CA? Have you previously disputed it with the credit bureaus?  I ask these questions because in order to successfully sue, you have to prove willful disregard of the law.  You just can't simply sue a CA for placing something on your report that was already paid. You need to demonstrate that they made no attempt to correct the error after being presented with evidence that it was invalid.

[Anonymous]

I have read about people filing and winning cases against the CAs for violations of the FCRA and the FDCPA.

You would need to be more specific in your questions.

What you have posted is vague and could lead to assumptions. 

[Anonymous]

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@JoeBJay20 wrote:

Welcome to the forums!

While I personally haven't done it, sometimes a lawsuit is needed to get information corrected on your credit report. However, you typically want to be sure you exhausted all other possibilities in getting the issue resolved. Have you requested verification of the debt with the CA? Have you previously disputed it with the credit bureaus?  I ask these questions because in order to successfully sue, you have to prove willful disregard of the law.  You just can't simply sue a CA for placing something on your report that was already paid. You need to demonstrate that they made no attempt to correct the error after being presented with evidence that it was invalid.

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True.  Although the violations do not need to be willful per se, you would certainly have to show that you attempted to bring this matter to the creditor's attention at least once in writing CMRRR.

Also, one problem with a FDCPA suit is that the respondent can appear and force the issue to be removed to federal court.  At that point the small claims court would have no choice but to gracefully bow out and then you would have to navigate the federal court system -- a daunting task even for an attorney.

[RobertEG]

If you have already filed legal action of violation of the FDCPA, what grounds did you specifically  identify as legal violation(s) of the FDCPA?

There are reallly only two violations of the FDCPA that would normally subject them to legal judgment.

First, being their failure to provide you proprer dunning notice under FDCPA 809(a) within five days of initial communication with you.    Second is their continued collection activity after you provided them timely DV notice under FDCPA 809(b).

The FDCPA does not compel their debt validation at any set time after any DV letter. So if they did not respond, and have not continued active collection activity, how did they violate the FDCPA?

If you want debt validation to be part of the legal record on day of court, you must first make motion to the court for legal discovery of the records you desire.  They were not compelled under the FDCPA, but can be compelled under the court discovery process.

[Anonymous]

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@RobertEG wrote:

If you have already filed legal action of violation of the FDCPA, what grounds did you specifically  identify as legal violation(s) of the FDCPA?

There are reallly only two violations of the FDCPA that would normally subject them to legal judgment.

First, being their failure to provide you proprer dunning notice under FDCPA 809(a) within five days of initial communication with you.    Second is their continued collection activity after you provided them timely DV notice under FDCPA 809(b).

The FDCPA does not compel their debt validation at any set time after any DV letter. So if they did not respond, and have not continued active collection activity, how did they violate the FDCPA?

If you want debt validation to be part of the legal record on day of court, you must first make motion to the court for legal discovery of the records you desire.  They were not compelled under the FDCPA, but can be compelled under the court discovery process.

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Are you saying that there are only two violations under the FDCPA that are actionable in this particular case or that overall there are only two possible violations that are actionable in any case?

[PeoplePatch]

Thanks to all for responding.  I'll add detail and length for future readers.  Then, post another related question.

I filed two separate small claims cases which have been heard in Indiana small claims court.  The collection agencies were separate, corporate identities.  The alleged debt was related to medical expenses.  The alleged debt is the exact same debt for both collection agencies.  I sought an attorney's assistance to deal with the hospital as the debt collection process moved from agency #1 to agency #2.

The alleged debt was not filed with my health insurance provider after multiple certified mail (return receipt) requests from me were made to the hospital.  The time for the hospital to bill the health insurance provider expired (6 months); thus, the hospital could not collect funds from the insurance company.  The hospital gave written statement to me via my attorney that the debt was not owed.  This alleged debt was a small "piece" or a larger incident with the hospital.  Although the hospital provided written statement the debt was not owed, the collection process continued and statements from the hospital continued to be received.  (The hospital, as original creditor, contracts/provides this information to both collection agencies.  Logically, the collection process should have ended with the hospital's admission.)  

I did communicate with each collection agency asking for debt verification and sent these communication multiple times via certified mail, return receipt.  I filed the small claims for the Indiana maximum of $6,000 for each claim.  The claims were heard by two different judges in two separate judges.  (The most recent claim was heard April 2010.)  I represented myself at each case.  Each collection agency was served via Indiana sheriff.

My argument:  the FDCPA was violated because the debt was not verified, the debt was NEVER owed and the original creditor admitted such.  Thus, each instance of communication from the collection agencies represented a violation of the FDCPA (vs. one continuous violation), and while the excess "damage" could be derived from the agency committing US postal fraud (using the postal service to send fraudulent material and utilizing HIPAA information) while also legally intimidating someone based upon their health condition when the original creditor knew the debt was not owed.  The last two rationale only supporting the maximum payment allowed.  No representative appeared at either trial for the collection agencies.

Outcome Case #1:  Judge stated I had not convinced him enough evidence had been presented of an FDCPA violation.  No award.

Outcome Case #2:  Judge stated FDCPA had been violated but no personal damages had been incurred.  Statutory violation award of $500 + 8% per annum and court costs awarded.

[PeoplePatch]

I left small claims court disappointed (to say the least) even though I have an award in my favor.

I originally asked for:  the maximum financial award and court ordered letter for the collection agency to remove mark on my credit file.  

Any suggestions on how to remove these collection marks on credit reports?  

the Judgment merely states the collection agency's name, amount to pay me, and court letterhead/case information.  It does not list what debt, account number, or identifying information.  I'm a bit tired of dealing with this after a year now - just want it gone.  Your input is appreciated.

[RobertEG]

I think the lesson that should be learned is that FDCPA violations, whlie fedral in judiial ori]gin, are nonetheless not something that any court wants to rule upon., and are for the most part, only considered as procedural violations of collection practive actitivies that are not the mandate of federal judges..  State courts are relucant to rule, as part of a state civil case, on enforcement of a FederaL debt collection procedures statute, with allmost not state court precedent for superceding fedral law, ant it only pertains to debt collection, which is all the FDCPA really is,

The FTC, who is charged with admin eforcement of the FDCPA, has almost totally divorced itself from any legal enforecement except fo MAJOR class action suits, in the last decade. 

Every court avoid rulings on FDCPA substance.