subject: Vexatious Litigants and the FDCPA [print this page] Vexatious Litigants and the FDCPA Vexatious Litigants and the FDCPA
Thinking on Suing a Debt Collector?
You Better Make Sure Your Arguments are Valid!
In recent years with many factors, including the economy, many consumers are being contacted by debt collectors for an underlying debt. Due to factors, sometimes not in control of consumers, they head to the internet and with the click of a mouse can end up at various "self-help" sites.
There are a variety of those self-help sites on the internet, collectorsexposed.com being one of them. However, one must determine the intent of the site to which they go to before proceeding with the advice from the site. Each site on the internet on credit, debt and Pro Se litigation has its own niche; however one must tread cautiously in order to make sure all avenues of mitigation of damages happen before filing suit.
Many sites such as www.collectorsexposed.com offer ways to show you how to rid yourself of debt collectors without litigation. Regardless of what others may proffer up, litigation is not for everyone. Moreover, in FDCPA or FCRA the Plaintiff would really need to have their case in Federal Court, not in State Court and the Federal Rules of Civil Procedure are cast and can take a long time to learn. Federal and State Court Judges will not take kindly to a litigant wasting their time, especially if they believe the litigant is engaging in vexatious litigation (also known as malicious prosecution).
Now do not get us wrong, sometimes there are no other avenues of ridding yourself of the illegal practices of debt collectors. However one of the things a litigant needs to look at is the amount of damages that might be awarded. We encourage you to look at our previous article on Damages and the FDCPA. Our articles on damages and the FDCPA focuses on many aspects of litigation, it can be found here; http://www.collectorsexposed.com/forum/index.php?/topic/3504-article-on-fdcpa-and-damages-in-litigation/ . Due to the overwhelming need of consumers for self-help forums it has become a common misconception that nearly every debt collector violates, which entitles the consumer to sue and receive money. Because of this many Courts are deeming such lawsuits as frivolous and believe the Plaintiff(s) acted in bad faith and maliciously prosecuted their case.
But how would one define a case as frivolous or an action as malicious prosecution? Frivolous is a subjective word; what may be a frivolous Complaint or argument to one person can be of great importance to another. However, malicious prosecution and abuse of process are both torts that apply to wrongful use of judicial or quasijudicial processes.[1] Malicious prosecution is sometimes labeled "wrongful civil prosecution" because it may be applied to either civil or criminal proceedings.
The elements of a malicious prosecution case are:
that the defendant filed and/or prosecuted the underlying civil action;[2]
a favorable termination of the prior case, in which the innocence of the former defendant was established;[3]
the absence of probable cause, meaning that no reasonable attorney would have considered it to be tenable;[4]
malice, which can be implied from a conscious disregard for the consequences, from a lack of probable cause, and from inadequate investigation and research,[5] and
damages.[6]
The easiest item of compensatory damages to prove is the amount of attorney's fees which the Defendant paid in successfully defending the underlying claim. The Defendant is entitled to be compensated for any detriment or harm to its reputation, including any impairment of his social and business standing.
Abuse of process in its common form requires a plaintiff must plead and prove (1) an ulterior purpose, and (2) an act in the use of process that is improper in the regular prosecution of the proceeding.[7] The plaintiff must plead and prove "some corroborating act" demonstrating an ulterior purpose because a "bad motive alone will not establish an abuse of process."
There can be many procedures that happen in a proceeding that a Defendant might be able to label it as abuse of process and in turn sue the Plaintiff. One of the worst case scenarios is that the Judge dismisses the lawsuit and awards sanctions and attorney's fees to the Defendant.
Some of the elements of abuse of process are:
Excessive Attachment(s);[8]
Multiple Repeated Depositions of the Same Party; and
Failure to comply with Court Orders.
Lastly one could also be labeled as a vexatious litigant. Many Courts who label litigants as vexatious ones issue Orders making the litigant request permission to file any future cases.
Vexatious Litigation is a legal action or proceeding initiated maliciously and without Probable Cause by an individual who is not acting in Good Faith for the purpose of annoying or embarrassing an opponent.
The U.S. legal system permits persons to file civil lawsuits to seek redress for injuries committed by a defendant. However, a legal action that is not likely to lead to any practical result is classified as vexatious litigation. Such litigation is regarded as frivolous and will result in the dismissal of the action by the court. A person who has been subjected to vexatious litigation may sue the plaintiff for Malicious Prosecution, seeking damages for any costs and injuries associated with the original lawsuit.
Litigation is typically classified as vexatious when an attorney or a pro se litigant (a person representing himself without an attorney) repeatedly files groundless lawsuits and repeatedly loses. Under the Common Law, the frequent incitement of lawsuits by an attorney constituted the crime of Barratry. In modern law, however, barratry is viewed as an archaic crime and is rarely enforced. Attorneys who encourage vexatious litigation are subject to discipline for violating rules of professional conduct and may be suspended from the Practice of Law or disbarred.
Sometimes pro se litigants who have lost their initial lawsuits file new actions based on the dispute contained in the original suit. Because the judgment of the original case is dispositive, a court will ultimately dismiss these new actions. To avoid the expenditure of court resources, as well as the costs associated with the defendant's defense of repeated frivolous claims, a court may issue an order forbidding the pro se litigant to file any new actions without permission of the court.
Vexatious litigation is a type of malicious prosecution that enables the defendant to file a tort action against the plaintiff. A plaintiff in a malicious prosecution must prove that a legal proceeding (or multiple proceedings) was instituted by the defendant, that the original proceeding was terminated in favor of the plaintiff, that there was no probable cause for the original proceeding, and that malice, or a primary purpose other than that of bringing the original action, motivated the defendant. A plaintiff in such an action may recover, for example, the expenses incurred in defending the original suit or suits, as well as resulting financial loss or injury. A plaintiff may also recover damages for mental suffering of a kind that would normally be expected to follow from the original action.[9]
Vexatious litigation is a Common Law Tort just like Malicious Prosecution and Abuse of Process.[10] Many times Pro Se litigants will use "boilerplate" pleadings that they have found off of various internet sites. Those pleadings can be categorized as "sham" pleadings, especially if there is no violation and/or evidence to support it. A sham pleading is one that is so bad in fact and so obviously false that it has no possible substance and could not conceivably result in a triable issue."[11] Further "A sham pleading is one incompatible with the law or the nature and condition of things within the judicial knowledge, or appearing to be false by comparison with other declarations of the pleadings."[12] Common case law of Vexatious Litigants is clear on the matter; therefore one should not want to be labeled as one.
"A problem [was] created by the persistent and obsessive litigant, appearing in pro. per., who has constantly pending a number of groundless actions, sometimes against judges and other court officers who were concerned in the adverse decisions of previous actions." (Note (1963) 38 State Bar J. 489; see Comment, The Vexatious Litigant (1966) 54 Cal.L.Rev. 1769, 1772-1773; accord, Halpin, Delay on Appeal (1963) 38 State Bar J. 279.) The Legislature adopted the vexatious litigant statute (Stats. 1963, ch. 1471, 1, p. 3038), patterned after a statute permitting a court to require security in some derivative suits. (See Beyerbach v. Juno Oil Co. (1954) 42 Cal.2d 11 [265 P.2d 1].) The idea began with the Los Angeles County Bar Association and was pursued by the State Bar, which argued, "The need for the adoption of this legislation is that there is an unreasonable burden placed upon the courts by groundless litigation, which, in turn, prevents the speedy consideration of deserving and proper litigation; the suits that have been filed against the judges themselves require the full time of three to four Deputy Attorneys General[.]" (Letter to Gov. Brown (July 3, 1963) Gov.'s Ch. Bill File, also citing Stafford v. Russell (1962) 201 Cal. App.2d 719, 722 [20 Cal. Rptr. 112].)
A single action, even a frivolous one, is not enough to raise a litigant to the level of being declared vexatious, though repeated and severe instances by a single lawyer or firm can result in eventual disbarment.
Some jurisdictions have a list of vexatious litigants: people who have repeatedly abused the legal system. Because lawyers could be disbarred for participating in the abuse, vexatious litigants are often unable to retain legal counsel, and therefore represent themselves in court. Those on the list are usually either forbidden from any further legal action or required to obtain prior permission from a senior judge before taking any legal action. The process by which a person is added to the list varies among jurisdictions.[13]
In closing based on the above clear and correct interpretations of relevant Statutes both of Federal and State nature, one should pay close attention to the actual merits of one's case. Suing in Federal or State Court is no laughing matter; and is not for the faint of heart or the weak. One thing to remember, lawyers (who sometimes become Judges) pay a lot of money for their bar cards, and as such a Pro Se litigant is not part of the "club". So not only are you at a disadvantage because of the lack of legal expertise, you most likely will not be taken as seriously as you would if you had counsel.
Regardless of what any self-help forum tells you or where they may lead you. Do your own homework, be prepared for the worst and only sue when you have valid and solid claims.
[1] Shea v. Chase Manhattan Bank, 2000 Conn. Super LEXIS 571; Miller-Wagenknecht v. City of Monroe Falls, 2001 Ohio 1877 (Ohio App. 2001).
[2] Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502 (Tex 2002); Mayberry v. Ememessay, Inc., 302 F. Supp. 2d 687 (W.D. Va. 2002).
[3] Gill v. Kostroff, 82 F. Supp. 2d 1354 (M.D. Fla. 2000); Sohacheski v. Baker, 2002 WL 31317336 (Cal. App. Oct 16, 2002).
[4] Blandino v. Fischel, 39 P.3d 258 (Or. App. 2002); Zablonski v. Perkins, 230 Md. 365, 187 A.2d 314 (1963); and Montgomery Ward v. Wilson, 664 A.2d 916 (Md. 1995).
[5] Shoney's Inc. v. Barnett, 773 So. 2d 1015 (Ala. Civ. App. 1999).
[6] Shea v. Chase Manhattan Bank, 2000 Conn. Super. LEXIS 571; and LaSonde v. Chase Mortgage Co., 577 S.E.2d 822
[7] Friedman v Dozorc, 412 Mich 1, 30; 312 NW2d 585 (1981); Bonner v Chicago Title Ins Co, 194 Mich App 462, 472; 487 NW2d 807 (1992).
[8] Drum b. Bleau, Fox & Assocs., 132 Cal. Rptr. 2d 602 (Cal. App. 2003), National City Bank v. Shortridge, 689 N.E.2d 1248 (Ind. 1997).
