Author Topic: Sued in Wrong County in Georgia  (Read 2934 times)

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fisthardcheese

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Re: Sued in Wrong County in Georgia
« Reply #15 on: January 04, 2017 08:32:46 PM »
No. This has already been litigated post Spokeo and the consumer has lost. I've posted the cases.

Regardless of what you and your AI pals say in your mutual back-slapping fests, the hypothetical situation I just posed above is enough to overcome any "injury in-fact" tests.  Maybe they cover that in year 2.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

11181986

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Re: Sued in Wrong County in Georgia
« Reply #16 on: January 04, 2017 08:36:31 PM »
No, it is not. I know it is unfortunate that Spokeo did away with a lot of violations that used to be slam dunks, but you'll get over it eventually.


Jackson v. Abendroth & Russell, P.C., No. 416CV00113RGEHCA, 2016 WL 4942074, at *2 (S.D. Iowa Sept. 12, 2016)


The District Court, Rebecca Goodgame Ebinger, J., held that:

1. debtor did not suffer any concrete harm from debt collector's alleged procedural violations of FDCPA, and

2. Under Spokeo, a violation of the disclosure provisions of the FDCPA does not, by itself, constitute an intangible harm that satisfies the injury-in-fact requirement for Article III standing.

Motion to dismiss granted.

This Plaintiff couldn't even survive a 12(b)(1) motion.

Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #17 on: January 04, 2017 09:12:11 PM »
If a complaint is filed in the wrong court but the consumer is never served, there would be no violation.  As a result, Spokeo would apply because the consumer has not suffered an injury.

I have to respectfully disagree. The statute says "bring such action only in the judicial district or similar legal entity--' When a Complaint is filed, the action has been brought. The fact that the plaintiff is too incompetent to have the Defendant properly served shouldn't matter.

"In a claim filed jointly by the Consumer Financial Protection Bureau ("CFPB") and the Federal Trade Commission ("FTC") both agencies agreed that collection firm, Mel Harris & Associates, LLC et al ("Harris"), violated the Fair Debt Collection Practices Act ("FDCPA") when it allegedly intentionally failed to properly serve collection lawsuits on defendants by providing them with notice that they were being sued."

Improperly served, sewer service, not being served at all, same thing in my book. Injury in fact has already been argued here, the statute does not require it....the statutory penalty is designed to punish the conduct, not compensate the victim for monetary losses. That is a separate part of the FDCPA under actual damages.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

11181986

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Re: Sued in Wrong County in Georgia
« Reply #18 on: January 04, 2017 09:36:28 PM »
Doesn't matter you disagree, Spokeo states it is not a violation.

BellEbutton

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Re: Sued in Wrong County in Georgia
« Reply #19 on: January 04, 2017 09:47:57 PM »
I have to respectfully disagree. The statute says "bring such action only in the judicial district or similar legal entity--' When a Complaint is filed, the action has been brought. The fact that the plaintiff is too incompetent to have the Defendant properly served shouldn't matter.

"In a claim filed jointly by the Consumer Financial Protection Bureau ("CFPB") and the Federal Trade Commission ("FTC") both agencies agreed that collection firm, Mel Harris & Associates, LLC et al ("Harris"), violated the Fair Debt Collection Practices Act ("FDCPA") when it allegedly intentionally failed to properly serve collection lawsuits on defendants by providing them with notice that they were being sued."

Improperly served, sewer service, not being served at all, same thing in my book. Injury in fact has already been argued here, the statute does not require it....the statutory penalty is designed to punish the conduct, not compensate the victim for monetary losses. That is a separate part of the FDCPA under actual damages.

When a debt collector files suit against an alleged debtor in contravention of § 1692i(a)(2), no harm immediately occurs because the debtor likely has no knowledge of the suit and has no need to act. Therefore, tying a violation to the mere filing of a complaint does not serve the statute's remedial purpose. Upon receiving notice, however, the harm is realized because the debtor must then respond in a distant forum or risk default. Because the harm of responding to a suit in a distant forum arises only after receiving notice of that suit, a "violation" does not arise under § 1692i(a)(2) until such time as the alleged debtor receives notice of the suit. Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440, 445 (5th Cir. 2013).

BellEbutton

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Re: Sued in Wrong County in Georgia
« Reply #20 on: January 05, 2017 01:24:59 AM »
In addition to my reply above, Mel Harris was nailed because of sewer service.  False affidavits of service were filed.  That's what was meant by "improper service".   There is no improper service if no attempt is made, no false affidavit of service is filed, and the lawsuit is merely dismissed.

fisthardcheese

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Re: Sued in Wrong County in Georgia
« Reply #21 on: January 05, 2017 02:29:42 AM »
When a debt collector files suit against an alleged debtor in contravention of § 1692i(a)(2), no harm immediately occurs because the debtor likely has no knowledge of the suit and has no need to act. Therefore, tying a violation to the mere filing of a complaint does not serve the statute's remedial purpose. Upon receiving notice, however, the harm is realized because the debtor must then respond in a distant forum or risk default. Because the harm of responding to a suit in a distant forum arises only after receiving notice of that suit, a "violation" does not arise under § 1692i(a)(2) until such time as the alleged debtor receives notice of the suit. Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440, 445 (5th Cir. 2013).

Upon receiving notice, however, the harm is realized

Op was noticed. The notice of this suit came in the form of solicitation letters from BK attorneys.  That case you cited does not say the notice must come in the form of a summons only.  OP was noticed, therefore, Op learned of the violation, therefore, Op has been harmed - and most likely emotionally damaged.

Doesn't matter you disagree, Spokeo states it is not a violation.

Spokeo states no such thing. Not even close.  You can keep posting the one case over and over, but you well know that the Jackson case was nothing like what we are talking about here.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

BellEbutton

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Re: Sued in Wrong County in Georgia
« Reply #22 on: January 05, 2017 02:39:02 AM »
Upon receiving notice, however, the harm is realized

Op was noticed. The notice of this suit came in the form of solicitation letters from BK attorneys.  That case you cited does not say the notice must come in the form of a summons only.  OP was noticed, therefore, Op learned of the violation, therefore, Op has been harmed - and most likely emotionally damaged.



Reread the 5th Circuit's ruling. 

"Upon receiving notice, however, the harm is realized because the debtor must then respond in a distant forum or risk default."

A solicitation from a bk lawyer does not require a response to the court in order to avoid default.

fisthardcheese

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Re: Sued in Wrong County in Georgia
« Reply #23 on: January 05, 2017 02:50:55 AM »
Reread the 5th Circuit's ruling. 

"Upon receiving notice, however, the harm is realized because the debtor must then respond in a distant forum or risk default."

A solicitation from a bk lawyer does not require a response to the court in order to avoid default.

Perhaps, but I would make the argument to the court that the LSC would be very worried about a default.  We see it here all the time, people sued for the first time ask about answering before they are served for fear of default judgements.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

11181986

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Re: Sued in Wrong County in Georgia
« Reply #24 on: January 05, 2017 02:57:00 AM »
That would be an awful argument and wouldn't survive a 12(b)(1) motion.

BellEbutton

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Re: Sued in Wrong County in Georgia
« Reply #25 on: January 05, 2017 02:59:41 AM »
Perhaps, but I would make the argument to the court that the LSC would be very worried about a default.  We see it here all the time, people sued for the first time ask about answering before they are served for fear of default judgements.

Worry does not equate to a violation.  Courts offer information online for self-represented litigants.

Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #26 on: January 05, 2017 03:01:00 PM »
The defendant found out about the suit by being contacted by lawyers. He then probably looked it up on line and saw that a suit had been filed against him. Not being a lawyer, he feared a default judgment and assumed he had to respond to the suit.

Lawyers who file complaints and forget to have their victim served should be held accountable for whatever happens if the person finds out about the suit. What if the guy gets killed driving to the court house?

If you can be "noticed" by having a notice published in a newspaper nobody reads, why can't a letter from a lawyer tipping you off accomplish the same thing?


Doesn't matter you disagree, Spokeo states it is not a violation.


Spokeo applies to the FCRA. Try this:


July 21, 2016

In an unpublished opinion, the U.S. Court of Appeals for the Eleventh Circuit recently held that a consumer alleging that she did not receive disclosures required by the federal Fair Debt Collections Practices Act (FDCPA) sufficiently alleged that she suffered a concrete injury, and thus satisfied the standing doctrine’s injury-in-fact requirement under Article III of the U.S. Constitution.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Clydesmom66

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Re: Sued in Wrong County in Georgia
« Reply #27 on: January 05, 2017 03:48:50 PM »
Lawyers who file complaints and forget to have their victim served should be held accountable for whatever happens if the person finds out about the suit. What if the guy gets killed driving to the court house?

Your fantasy world is really colorful isn't it?  First and foremost you know full well that someone who is sued isn't a "victim" it is EVERYONE'S right to avail themselves of the court and your hypocritical double standard doesn't work.  After all you crow with glee when ever a consumer sues a debt collector and don't refer to the defendant as a victim then.  Grow up.

You also know full well that neither the Plaintiff nor the court has control over ANY incident that occurs outside their control with respect to any defendant they sue.  They could easily argue the defendant never had to leave home and could simply call the court and make arrangements to have the process server come to the home or work.  Ridiculous imaginary scenario of "what if" that serves no purpose.  When it comes to the law they go by concrete information not imaginary scenarios.

If you can be "noticed" by having a notice published in a newspaper nobody reads, why can't a letter from a lawyer tipping you off accomplish the same thing?

Seriously?  Most if not all states allow service by publication because the Plaintiff can show proof they published it as a public notice where the Defendant had opportunity to know about the suit.  State law provides for it.  Exactly how would the Plaintiff show that lawyers from other firms trolled the docket and sent a solicitation letter to defendant(s) AND they actually received the letter indicating they have knowledge of the suit? 
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #28 on: January 05, 2017 04:12:35 PM »
Grow a sense of humor, will you? Writers use colorful language. I was just making a point. Death on the road may be a stretch, but I think the violation still sticks. Look up:"notice." It provides for any reasonable way that someone is informed of a lawsuit. Absent the lawyer's due diligence in having his "victims" served, the defendant is free to find out in any manner.

Exactly how would the Plaintiff show that lawyers from other firms trolled the docket and sent a solicitation letter to defendant(s) AND they actually received the letter indicating they have knowledge of the suit?


It doesn't matter. The defendant can prove it, not the plaintiff. Just bring all those troll letters to court. If the P doesn't want to pursue his case, he could withdraw it rather than fail to serve the D.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Sued in Wrong County in Georgia
« Reply #29 on: January 05, 2017 06:30:19 PM »
The defendant found out about the suit by being contacted by lawyers. He then probably looked it up on line and saw that a suit had been filed against him. Not being a lawyer, he feared a default judgment and assumed he had to respond to the suit.

Lawyers who file complaints and forget to have their victim served should be held accountable for whatever happens if the person finds out about the suit. What if the guy gets killed driving to the court house?

If you can be "noticed" by having a notice published in a newspaper nobody reads, why can't a letter from a lawyer tipping you off accomplish the same thing?


I don't know about all states, but at least in some states, a notice in the newspaper is considered alternative service.   A solicitation letter from a lawyer is not considered service in any state.

 

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