Author Topic: Sued in Wrong County in Georgia  (Read 2931 times)

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Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #30 on: January 05, 2017 08:51:05 PM »
No, but we aren't talking about service. We're talking about finding out you've been sued.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Flyingifr

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Re: Sued in Wrong County in Georgia
« Reply #31 on: January 05, 2017 09:12:28 PM »
No, but we aren't talking about service. We're talking about finding out you've been sued.

The two are really one and the same. In the eyes of the Law, you don't KNOW you are being sued until you are served. Hearing about it from other ambulance chasing lawyers, or overheard at a drunken orgy do not count.
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CleaningUp

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Re: Sued in Wrong County in Georgia
« Reply #32 on: January 06, 2017 01:57:00 AM »
Here's the thing...

-- If you duck service, a default judgment is awarded to the plaintiff.

-- If you complain by initiating an FDCPA claim in court, you are a likely winner of some sort of statutory award.  But, remember, the FDCPA allows for the bona fide error defense, which is exactly what they will use either to get the case thrown out or to argue for a token award for as low as $1.

-- Whichever of the paths you choose to follow, rest assured that the plaintiff will withdraw the case and refile it in your jurisdiction, perhaps even just outside the courtroom on the way in for the first hearing.

You are going to be served, and the only question now is when and how...A judgment could well be in your future.

BellEbutton

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Re: Sued in Wrong County in Georgia
« Reply #33 on: January 06, 2017 08:56:57 PM »
No, but we aren't talking about service. We're talking about finding out you've been sued.

Which court defines "notice" as a solicitation from an attorney?  As Flying pointed out, a solicitation would not be deemed notice by a court.  Keep the 5th Circuit ruling I cited in context.   

Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #34 on: January 06, 2017 09:08:38 PM »
Courts do not define terms as such. Law dictionaries define notice in general terms as that which consists of information that informs a person that they have been sued. Nobody defines how it shall occur. As per the FDCPA, I think it would be one of those violations that result in no award.
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 #35 on: January 06, 2017 10:51:07 PM »
Courts do not define terms as such. Law dictionaries define notice in general terms as that which consists of information that informs a person that they have been sued. Nobody defines how it shall occur. As per the FDCPA, I think it would be one of those violations that result in no award.

Really?  You honestly think that when courts refer to "notice", they are including solicitation letters?  Good luck with that.

Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #36 on: January 07, 2017 02:53:37 PM »
No, when courts use the term they usually refer to being served. Without service, the case cannot proceed.


"Notice is the legal concept describing a requirement that a party be aware of legal process affecting their rights, obligations or duties. There are several types of notice: public notice (or legal notice), actual notice, constructive notice, and implied notice."


In this case, we are not talking about a default judgment for lack of legal process. We are merely discussing how a person may be made aware that a suit has been filed absent being served, and if harm may occur as a result. I think it can. How much and what kind is up to a creative lawyer and a judge.
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 #37 on: January 07, 2017 05:53:50 PM »
No, when courts use the term they usually refer to being served. Without service, the case cannot proceed.


"Notice is the legal concept describing a requirement that a party be aware of legal process affecting their rights, obligations or duties. There are several types of notice: public notice (or legal notice), actual notice, constructive notice, and implied notice."


In this case, we are not talking about a default judgment for lack of legal process. We are merely discussing how a person may be made aware that a suit has been filed absent being served, and if harm may occur as a result. I think it can. How much and what kind is up to a creative lawyer and a judge.

Just as I suggested in the other thread, you need to call the 5th Circuit and inform it that the judge's ruling is wrong. 

Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #38 on: January 07, 2017 06:15:10 PM »
I just found out I am being sued in DeKalb County, Georgia.


What does this have to do with the 5th?
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 #39 on: January 07, 2017 06:31:12 PM »
I just found out I am being sued in DeKalb County, Georgia.


What does this have to do with the 5th?

I was referring to the case law I cited. 

Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #40 on: January 07, 2017 07:12:33 PM »
Yes, I know, but it is the wrong circuit so it isn't binding.
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 #41 on: January 07, 2017 10:22:25 PM »
Yes, I know, but it is the wrong circuit so it isn't binding.

It's more than you've got.

Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #42 on: January 08, 2017 08:26:36 PM »
I don't think the 11th ruled on this, I can't find a case. I don't think it rises to the level of an FDCPA violation, though, because of the language of the statute which requires an action to be commenced. Commencement requires service.
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 #43 on: January 14, 2017 10:50:43 AM »
Commencement requires service.

No it does not. Commencement is simply filing.

LightBearer1307

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Re: Sued in Wrong County in Georgia
« Reply #44 on: January 14, 2017 12:54:45 PM »
Here's the thing...

-- If you duck service, a default judgment is awarded to the plaintiff.

-- If you complain by initiating an FDCPA claim in court, you are a likely winner of some sort of statutory award.  But, remember, the FDCPA allows for the bona fide error defense, which is exactly what they will use either to get the case thrown out or to argue for a token award for as low as $1.

-- Whichever of the paths you choose to follow, rest assured that the plaintiff will withdraw the case and refile it in your jurisdiction, perhaps even just outside the courtroom on the way in for the first hearing.

You are going to be served, and the only question now is when and how...A judgment could well be in your future.



I believe the idea of "bona fide error" would be an extremely tough sell for a debt collection law firm to make.


Text-

A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.


They would have to show that 1) it was not intentional; 2) was a bona fide error; and 3) they had measures reasonably adapted to avoid any such error.

A judge could very well scoff at the idea that, "you unintentionally filed the lawsuit, it was a legitimate bona fide error, and you have no measures reasonably adapted to avoid filing a lawsuit in the wrong jurisdiction."




FRCP 3- https://www.law.cornell.edu/rules/frcp/rule_3

Rule 3. Commencing an Action

A civil action is commenced by filing a complaint with the court.

 

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