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     | Tuesday, February 27, 2001 - 10:03 pm  Disclaimer: This isn't legal advice, as I'm not a lawyer. I've just been in Court a few times and this is what I learned: How do I prove my case? You have the credit report with the incorrect data, and it should also contain the "verified by creditor" notation if that's why you're suing. I don't think it's legally necessary to dispute prior to suing, but most people try that first. I remember in California the judges asked the plaintiffs whether and how they made the demand for whatever they're suing for. So I usually send a fax or e-mail with my demand prior to the law suit. I explain my demand, give a SHORT deadline and inform them of my intent to sue (I don't specify that it'll be "only" Small Claims.) The company who reports on your credit needs to prove that the data you dispute is correct. That means, if they report an account that's not yours, they need to supply the promissory note with your signature. If they report TWO accounts, they need to provide TWO promissory notes. If they can't do that, you win your case. If it's over a payment dispute, bring your cancelled check or proof of payment. They have to show the accounting where the payment is applied. If you're suing over missing dates or missing credit limits, you print out the part of the FCRA with the "complete reporting" requirement for the judge. Because a creditor could argue that it doesn't matter, take a printout of the new Fair Isaac NextGen Score Factors and circle Factor # KO Time since delinquency is too recent or unknown or circle the appropriate "P" factor Proportion of balances to credit limits on revolving (consumer finance, or whatever applies to your situation) accounts is too high Don't expect judges to know the FCRA or to ever have heard of Fair Isaac or credit scoring. If I wasn't so busy, I'd get a Capital One card just to test that one in court myself. If you're disputing incorrect dates, such as the INCORRECT date of last activity, it is again up to the creditor to provide the accounting to substantiate their often much later date. A word of warning: you can expect FAKE accounting statements or other FAKE documentation. So if you have your OWN documentation, be sure to take it to court. You're supposed to get a copy of everything submitted to court, and you have to bring copies of your documentation for the defendant and the judge. How do you file your claim? First you have to find out who the Statutory Agent for the company is. When I sued Toshiba, I looked them up on the AZ State web site, and CT Corporations is the agent for several Toshiba Corporations. I sued "CT Corporations Systems (Toshiba)" and then CT Corp sent the filing back to me as they didn't know WHICH Toshiba I was suing. That's probably a common problem with many creditors. I then decided it was Toshiba Consumer Products, which turned out to be wrong. Computers are sold by Toshiba Information Systems, but it didn't matter. As soon as they received the papers, Consumer Products forwarded the papers to Information Systems who immediately contacted me to settle. I wouldn't expect that much cooperation from a credit card company. They COULD have delayed, answering the complaint that they don't know me and never did business with me. The AZ Small Claims form is only ONE page and has only a few lines to describe your complaint. You don't have to be very specific. If I was in Mel's place I'd write something like: "Dillard verified an INCORRECT account and INCORRECT dates with the credit bureau after my dispute. Numerous attempts to resolve the problems with Dillard directly failed and resulted in collection efforts instead of correction of the credit reporting." Something like that, it might not even fit. That last part really isn't necessary and it doesn't matter that much. In AZ the plaintiff has to mail the filing certified to the defendant. I might include my postings here, just so they know what's going on. In California the court clerk did the mailings, so that wasn't an option. For a while they had Small Claims free legal help and workshops in California. I assume that every State has Small Claims info on the web, outlining their procedures. How do you establish damages? The Small Claims courts I've been to couldn't order a company to actually do something (like report or not report), all they could do is award money for your damages. You don't want to sue for $20, it's not much motivation for creditors to show up or correct anything. I found that most people just pick high numbers. The judge then asks to justify the claim, IF the defendant shows up and the dispute isn't settled prior to court. You may even have mandatory mediation as in Arizona. That means TWO trips to the courthouse for the CRA or creditor, if they're not willing to settle. I've read that you can't sue for the value of your own time. But that may not be true everywhere, and I didn't actually see that in the AZ Small Claims instructions. So I take the total hours I wasted on the dispute and charge $75/hour. When I sued ITT Financial, I sued for the $2,000 credit line we lost due to their incorrect reporting. If you're paying interest, print out the Juniper ad with the "5 billing cycles ZERO percent interest" and show the judge a decline letter (not necessarily from Juniper, any letter will do.) If the account was reported incorrectly for 2 years, figure out how much interest you paid. What you'll actually get in a judgment depends on the judge, on the defendant, and on your case. I don't worry much about it until the court date is set and I know we're not settling. Most likely the creditor will offer to correct their reporting prior to court. If you are suing because they report 90 days late instead of 60, they probably offer to remove the entire account or all derogatory data. I recently did NOT settle for the $250 offered in mediation by VoiceStream. Richard, the Phoenix store manager they sent, stated that I got a $70 credit on August 30 and he had his "print out" as proof. I had my statement right there proving that they DEBITED $70 instead. He did NOT even apologize! Oh, it's on the next statement, he claimed. I said fine, let's go home now and you bring that statement to court. So now he or whoever they send can make another 400 mile round trip to the court house. Most likely I'll get a lecture on contract law and less than $250, but I did it because I can. If corporate can waste my time and gasoline without having to reimburse me, then I'll just do the same for them. I sued LoanAmerica about 10 years ago after a $80 or so fraudulent late charge. Sued for $1,000, settled for $500 and no late reporting a few days before the court date. I had their employee's signature on the dated postal delivery receipt. And I sued in California while the LoanAmerica lawyers were in Florida and they had no offices in California. A few days ago I settled with Toshiba. I actually signed a non disclosure agreement, so all I can say is that we settled to my satisfaction. Obviously that's the case, or I wouldn't have settled.  With Armcomputer I got some problems. As I had expected, they requested a change of venue. All their biz is done in California. I responded to their request by pointing out that they shipped one of my computers to AZ, and that's where I am right now. And if they'd given me an invoice, they'd have my signature on the same page with their "California venue" clause. I also included the printout of my E-mail with Salman Nasir over the invoice issue. I think I'll be better off getting a lawyer in California and filing a "real" law suit, demanding compensation for the trouble I've had. The max in Small Claims is only $2,500 in AZ, and the value of the computer and what I've been shorted by them is way over $3,000. But, at least they can't say I didn't try to resolve this prior to incurring big legal fees. Make sure you understand the appeals process and whether lawyers can be present Anything can happen in Small Claims Court, and while they say it's not like Judge Judy, I sure have seen some strange things in those court rooms. I don't think I'd accept another "pro tem" (judge in training?) again. You have the option to decline and they'll either reschedule or assign you to another "real" judge. In California only the defendant could appeal. That means that many companies don't take Small Claims serious. They send some clerk, they lose, then they send their LAWYER to the appeals court. That's NOT good for non legal people like me, I looked pretty stupid even though I had a great case and piles of documentation, but the judge pro tem didn't want to hear it. Talk about getting railroaded ... I like that AZ has no appeal. However, any defendant could have the proceedings moved to "real" civil court with lawyers PRIOR to the Small Claims hearing. If you sue and you've never been in court before, I highly recommend you check it out. Many courts have evening sessions. There's no cover charge, it's educational and sometimes very entertaining. Like anything new, it's intimidating at first. But you get used to it. It costs only $20 here in Arizona (including certified mailing.) So what do you have to lose?
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| | Wednesday, February 28, 2001 - 11:28 am Christine, Thank you so much for this post, and all the information. I am disputing several items on my CRA reports for which they can not or will not bother to provide proof of verification. I have one question, should I file agains the CRA, the creditor, or both.
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| | Wednesday, February 28, 2001 - 12:08 pm Christine - thanks for the info. It will come in handy!
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| | Wednesday, February 28, 2001 - 12:16 pm I would sue the CRAs only if they fail to investigate each item at least once, if they fail to provide creditor contact info or they provide INCORRECT info, or if they report data after it had already been disputed and removed. I just realized that the Small Claims forms I've seen had space only for ONE defendant. I know of major "real" law suits against the CRAs AND the creditors, but for Small Claims I'd say that in most cases the creditor should be sued first. Feel free to make a new topic and post specific situations.
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| | Wednesday, February 28, 2001 - 12:20 pm One last question, what sources are you aware of to locate the Statutory Agent. I am in Maryland and could not locate the information on the state website.
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| | Wednesday, February 28, 2001 - 12:27 pm In Arizona the Small Claims instructions include the phone number for the State agency that has the info. You might want to call the court. Does Maryland at least have Small Claims info on the web? Isn't there a web site that has Small Claims info for all the States with some links?
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