How to Sue in Small Claims Court

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Small claims court is often the best option available to enforce your rights against a deceptive or abusive company. Filing fees are much lower than in higher courts and the procedural and evidentiary rules are relatively relaxed and simple. Indeed, the small claims court judges themselves will typically apply the rules appropriately and fairly and will interpret the legal issues necessary to rule in your case. In most cases you will simply tell the judge your side of the story and he will do the rest. The process is designed to be as simple and consumer-friendly as possible.

To start your small claim court case, your first step is to determine which small claim court is most appropriate to hear it. In a contract dispute the appropriate court will be located in the county in which the contract was entered or the work was to be performed. In injury cases, the small claim court used will normally be where the injury occurred. If the case involves a real property dispute the proper court will typically be the county in which the property is located. If you are unsure, consult your state’s rules governing small claims procedure to determine the appropriate venue for your case.

Your next step is to download and complete the following forms from the court’s website:

  • Small Claims Court Complaint (sometimes entitled Affidavit)
  • Summons
  • Military Affidavit

Once the forms are completed, file the Small Claims Complaint or Affidavit and Military Affidavit with the court. You will pay a filing fee at that time and the court will issue the Summons and return it to you.

Your next step is to serve a copy of the Complaint and Summons on the Defendant. Some small claims courts will have a box or shelf where you can place a copy of the Complaint and Summons to be served but, if not, process servers are easy to find online. Once the process server delivers the documents to the Defendant he will notify the court that the Defendant has been served and send you a bill. Pay it quickly, it is money well spent. You cannot serve the Defendant so do not try. A disinterested person of suitable age must serve process and certify under oath and penalty of perjury it has properly served the Defendant. Your case dies if this doesn’t occur properly. In limited circumstances you can serve the Defendant by mail but check your local rules for the exact requirements. Again your small claims court case dies if this is not done correctly.

Your next step is to prepare for trial. Make three copies of all documents on which you plan to rely; one for you, one for the Defendant, and one for the court. Make a checklist of your talking points and important facts but do not waste any time or effort preparing a detailed script. You will not need it.  If you have witnesses make sure they are coming to the trial. If needed, you can have the small claims court issue a subpoena to make them appear but only do so if the witness is openly hostile and you think they probably won’t show up. Seriously, you will almost certainly be sleeping on the couch if you subpoena your spouse.

At trial, simply tell the small claims court judge your story.  Use your checklist to be sure you don’t forget any important facts. The judge will ask you and your witnesses questions and he expects very concise and specific answers. He does not want a long monolog detailing every nuance of your feelings about the situation. The judge only wants the facts important in deciding how to apply the law to your case.  He will know what questions are important and what issues on which to focus. If you think he is missing an important fact or issue tell him what you think he needs to know, but again, keep it brief.

Once he has heard from the parties and witnesses the judge will then make his ruling from the bench.  On rare occasions he will take your case under advisement and issue a ruling in a couple of weeks but doing so is extremely unusual so don’t expect it. If you win your case, the court will provide you with a judgment form. Send a copy to the Defendant by certified mail even if he appeared in court. You want proof he received it. The Defendant will typically have up to 30 days to appeal the small claims court judgment but you can begin collecting on the judgment immediately if you wish.

Now that you know how to take a case to small claims court you can be your own advocate. In many cases where deceptive and fraudulent sales practices are involved, however, you may want to consult with a consumer law attorney to determine whether or not a particular statute can help to maximize your damage award. In consumer law cases statutory damages are frequently higher than your actual damages. It is an important detail you do not want to miss.

Suing Telemarketers

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Telemarketers sometimes have a hard time taking no for an answer.  The first step to ending the calls is to simply ask the telemarketer to stop calling you.  Once you ask, the telemarketer is required by law to stop calling.  Record the details of your request for it to stop calling such as the date, time, and person with whom you spoke, and take a picture of the caller ID for later use.  Writing a letter to the telemarketing company can also sometimes help stop the calls.  Then, if the telemarketer continues calling you have proof you asked for the calls to stop.

You should also put your telephone number on the federal do not call list.  Doing so will stop most reputable telemarketers (if there is such a thing).  For those who do not stop calling, inclusion of your number in the do not call registry provides you additional proof of wrongdoing and creates an additional cause of action against the telemarketer if you decide to sue.

If the steps above do not stop the calls, suing the telemarketer may be your only option.  Use caution, however.  If you have conducted business with the company in the last three months or have given it permission to call you, it is probably not violating the do not call rules until you tell it to stop calling.

You can also sue abusive telemarketers for calling you before 8:00 in the morning or after 9:00 at night, for using an automated dialer to call your cell phone, or failing to provide you a copy of their do not call policy when you request it.

If you sue a telemarketer you could receive a substantial award or settlement but only if you have all your ducks in a row.  Failing to have the required evidence or suing when the telemarketing company has a legal defense could blow up in your face.  If you successfully prove your case, the court can award you up to $500 in statutory damages per violation and, if the telemarketer willfully or knowingly violated the law, up to $1500 for each violation.

Such high statutory damages are powerful tools in the fight against abusive marketing calls but don’t dismiss the effectiveness of the do not call registry and asking callers to stop as good measures toward preventing the vast majority of these calls.  Either way, when you fight against these unwanted privacy intrusions properly, peace and quiet are the ultimate result.

How to Stop Telemarketing Calls

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Getting unwanted telemarketing calls can be annoying or downright aggravating depending when it comes or how long it takes to get the caller off the phone. When the telemarketing calls come daily, or sometimes more often, the harassment starts to take quite a toll on even the most patient person. The good news is that stopping most telemarketing calls is easy.

The first step to stop telemarketing calls is to put your telephone number on the federal Do Not Call Registry. Once you do it should take less than 30 days for most telemarketers to stop calling you. Most states also have their own do not call registries you can use in conjunction with the federal Registry. Use both to get the best results. Keep in mind that charities and political candidates can still call you since they are not subject to the do not call regulations.

The next step to stopping the annoying telemarketing calls is to simply tell the abusive telemarketer you want them to stop calling. This is less effective than using the do not call registry but creates an obligation for the telemarketer to put you on its own do not call list and to stop calling you within a reasonable time. Most will stop calling within a few days of your request but a few unscrupulous companies will often continue calling even after you tell them to stop.

Those two simple steps will stop most telemarketing calls. If the telemarketing calls continue gather your telephone records and keep a log of all harassing calls including, who called, when they called, what number they called from, what you told them, and what they told you. A sample log for your personal use is available here. You should also take a picture of the caller ID every time a telemarketer calls and, if legal in your state, record the call. In Utah only one party to a conversation has to consent so feel free to record telemarketing calls if you reside in Utah. If any telemarketers leave you messages record those too.

If telemarketers keep calling you after placing your number on the do not call registry and telling them to stop your best option is to sue. It may seem drastic but suing is not only a sure-fire way to stop the telemarketing calls, it can also be rewarding. Violations for breaking the telemarketing rules can be up to $500 per violation and even higher in some circumstances. You will need the log, recordings, and your telephone records discussed above to prove your claim so be sure to keep accurate and timely records.

Stopping most telemarketing calls is generally easy. For the unscrupulous few who won’t give up so easily, suing is your best option. In either case, if you have any questions or need help with a particularly obnoxious telemarketer feel free to call us.

Money Damages for Unfair Debt Collections

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When a debt collector violates your rights by engaging in unfair debt collection practices you can sue it to stop the harassment or abuse and, in many cases, recover monetary damages from the abusive collector.  Although debt relief is not an available remedy under the Fair Debt Collection Practices Act (FDCPA), four kinds of monetary damages may be available to consumers who successfully sue abusive debt collectors for unfair debt collections.

Statutory Damages for Unfair Debt Collection

Statutory damages are available in FDCPA unfair debt collection cases though the amount is limited to no more than $1000. That amount is the total available regardless of the amount of violations at issue.  Although I cannot explain why the upper limit for statutory damages is so low, their purpose is to encourage consumers to sue debt collectors even when there are no actual damages. In awarding statutory damages the courts will consider the nature, frequency, and persistence of the noncompliance with the FDCPA and whether or not the collector intended to commit the acts that violated the FDCPA.

Actual Damages for Abusive Debt Collection

Actual damages may also be awarded in FDCPA litigation. Actual damages in unfair debt collection cases consist of monetary damages incurred as a result of the abusive collection activity. This can include attorney’s fees incurred to defend an improper debt collection lawsuit or other tangible monetary loss.  Actual damages can also include damages for emotional harm or harm to your reputation. This includes sleeplessness, nausea, anxiety, embarrassment, shame, and depression caused by the unfair debt collection abuse.

Punitive Damages for Debt Collection Abuse

Punitive damages may be available in abusive or unfair debt collection litigation but are challenging to obtain. The reason is because several courts have refused to award punitive damages solely under the statute, despite the lack of evidence in the FDCPA that Congress meant to preclude punitive damages. The best practice is to include state law claims in your complaint that allow an award of punitive damages. To support an award of punitive damages, you will also need to demonstrate actual damages and that the collector acted with an unusually high level of malice or recklessness.

Attorney’s Fees for Debt Collection Abuse

Consumers who successfully sue under the FDCPA for abusive or unfair debt collection practices are entitled to a mandatory award of the attorney’s fees incurred in the action. This is a powerful incentive to hire an attorney rather than sue a collector on your own. Most consumer law attorneys will take these cases on a contingency basis so you will generally pay nothing if you lose your case. In addition to the value of this requirement in discussing settlement, there is also a great amount of personal satisfaction in making a debt collector pay your legal fees.

Debt Relief in Debt Collection Lawsuits

Relief for the underlying debt is not considered actual damages and therefore is not an available remedy under the FDCPA. This means that even if you successfully sue a collection agency you will still normally remain liable for the underlying debt. Even so, forgiveness of the debt is a viable option to consider when negotiating settlement of an FDCPA case. Doing so will prevent the collection agency from selling your debt to reignite collection efforts by someone else.

Conclusion

Many consumer law firms will tell you that there are only two kinds of damages available under the FDCPA for abusive or unfair debt collection practices; namely actual and statutory damages. This is because punitive damages are difficult to obtain and attorney’s fees are not strictly considered damages. Nonetheless, both are recoverable under the FDCPA and both should be pursued if your case merits doing so.

If you are a victim of unfair, undignified, or abusive debt collections please call us now to discuss how we can help. We can stop the calls and make abusive debt collectors pay you.

How to Sue Debt Collectors: Tricks and Traps

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So you want to a sue debt collector? Suing debt collectors is not as easy as it sounds. There are numerous pitfalls and barriers that can trap unwary consumers.

The first issue to be concerned about when suing a debt collector or collection agency is whether or not you have a good case. Debt collectors frequently violate the law but many of those violations are merely technical and are not, by themselves, good legal claims. For example, debt collectors often fail to place the required “mini-Miranda” warning on written correspondence or fail to validate the debt at issue.   While these acts are violations of the Fair Debt Collection Practices Act (FDCPA) and do give you the right to sue debt collectors they are not particularly compelling and unlikely to lead to a high damage award since there is little to no actual damage for the collector’s failure.  Most consumer protection attorneys will not even take these types of cases due to the relatively low value compared with the high cost to litigate cases.

You also need to be sure you are suing a debt collector. The original creditor is generally not subject to the FDCPA and therefore can take many steps to collect debt that debt collectors cannot. There are laws to protect you from abuse by the original creditor but suing under those laws is more complicated and expensive than suing debt collectors under the Fair Debt Collection Practices Act.

Another trap is the bona fide error defense. Most, if not all, debt collectors will assert this defense like clockwork. It is generally asserted reflexively whether it actually applies or not but if the debt collector can prove its FDCPA violations were the result of a bona fide error it will not be held liable to you for those violations.

Another concern is that in many cases debt collectors will file counter-claims against you for the debt at issue. This is a powerful tactic and will keep many people from filing cases against debt collectors. Counter-claims may be difficult or impossible to overcome in many cases. There are ways to win on the counter-claim but unless the statute of limitations on the debt has run, the debt is fully repaid, or you never legally owed the debt in the first place you are likely to lose. Another problem with counter-claims is that the statute of limitations on an FDCPA case is only one year while the statute of limitations to collect the debt is almost always longer, depending on how old the debt is when the debt collection violations occurred.

There are numerous other issues to be aware of when suing debt collectors for unfair debt collection practices. To be certain you have a good case you should generally consult a consumer rights attorney. If you have a case worth filing they will typically take it on a contingency basis so you only pay if you recover an award and the fees you pay will come out of that reward. In addition to the probability of a higher award with an attorney representing you, there is also a tremendous amount of satisfaction in making an abusive debt collector pay for your attorney.

How to Restore Your Identity

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If your identity has been stolen there are steps you can take to restore your identity, your credit, and your good name.  There are also steps you can take to stop debt collectors and creditors from collecting debt that is the result of identity theft.

The first step to restore your identity is to contact the creditors and collection agencies and let them know the debt is the result of identity theft.  Make this contact in writing and do not try this if you authorized the debt or received any benefit from the debt.  Lying to get out of a debt that is legitimately yours could subject you to a criminal prosecution for perjury.

Your next step to restore your identity is to contact the credit bureaus and instruct them to cease any further reporting of the identity theft debt.  Again, make this contact in writing and do not lie or seek to mislead the credit bureaus.  You should also request a fraud alert to prevent any future thefts of your identity from occurring.  Renew the fraud alert with the credit bureaus every 90 days for at least a year or request an extended fraud alert once you have fully prepared an identity theft report.  You should also obtain your credit reports at least once each year just to be sure there isn’t other fraudulent activity taking place.  In most cases, credit monitoring services are not worth the cost so stay away from them.  Credit fraud alerts and personal diligence on your part in protecting your private information are generally sufficient to stop future identity theft from occurring.

In most cases, restoring your identity will require you to, among other things, complete an Identity Theft Affidavit and file a police report.  Do both immediately and include these documents with your letters to the creditors, debt collectors, and credit bureaus.

Restoring your identity after a theft can be a time-consuming and difficult job.  Taking these steps will help you restore your identity and protect your good name. They will even protect you from future theft.  Take back control of your identity.


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