Author Topic: Sued in Wrong County in Georgia  (Read 2466 times)

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LightBearer1307

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Re: Sued in Wrong County in Georgia
« Reply #45 on: January 14, 2017 01:06:19 PM »
From the 7th Circuit, but I believe it is still relevant in that this article discusses Supreme Court cases and it provides useful information in general.

http://consumerfsblog.com/2015/12/7th-circuit-no-fdcpa-bona-fide-error-for-intentional-conduct/


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The trial and appellate courts read “not intentional” to have two meanings. Not only must a debt collector demonstrate it did not willfully intend to violate the FDCPA, but it also requires that the conduct which is the basis for the FDCPA was not intentional. This second element follows the U.S. Supreme Court’s 2010 decision in Jerman v. Carlisle, which limited the bona fide error exception to clerical mistakes (rejecting mistakes of FDCPA law). *


Under the two element/prong Supreme Court analysis for "not intentional" I would expect any judge reasonably applying the law to conclude that filing an action in the wrong court/jurisdiction is probably not evidence of willful intent to violate the FDCPA [but this will be very fact intensive], but the conduct itself [that is the filing of the lawsuit] was clearly intentional because nobody can "accidentally" or "mistakenly" file a lawsuit.

It is not possible to "walk down the street intending to get lunch but I tripped on the curb, crashed through the doors of the court house, and wound up filing this lawsuit with the clerk."


The conduct of filing the lawsuit was intentional.

Bruno the JDB Killer

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Re: Sued in Wrong County in Georgia
« Reply #46 on: January 14, 2017 01:25:13 PM »
They are not in federal court. However, GA has similar language. See below. "Commenced" and "pending" are used. Seems one depends on the other. In my state they only used commenced.


Here, the appellants contend that Saunders is not controlling because it did not address service of the complaint and because Georgia law provides that a suit is not pending until service has been perfected. See, e.g., Almon v. R.H. Macy & Co., 106 Ga.App. 123, 124(2), 126 S.E.2d 641 (1962). Nevertheless, once service has been perfected, a suit's commencement date is regarded as the date the complaint was filed:

It is true that an action “is not a ‘pending suit’ between the parties until after service of process.” (Punctuation omitted.) [Cit.] However, “[f]iling followed by service creates a pending suit from the date of filing.” [Cit.]. See Taylor v. Kohlmeyer & Co., [123 Ga.App. 493(1), 181 S.E.2d 496 (1971)] (although “service or waiver is essential, ․ when made it relates back to the date of filing, which establishes the date the action is commenced”). [Cit.] Thus, once the suit is served, it is the commencement that is key, and, as stated in OCGA § 9-11-3(a), a “civil action is commenced by filing a complaint with the court.”
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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