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Laws & Resources => State Laws => Topic started by: janegreer on January 03, 2017 04:41:20 PM

Title: Sued in Wrong County in Georgia
Post by: janegreer on January 03, 2017 04:41:20 PM
I just found out I am being sued in DeKalb County, Georgia. The only reason I know about the lawsuit is because I have received dozens of solicitations from law firms shortly after the suit was filed that were forwarded to my new address in another county. I would just ignore the lawsuit, but I am afraid that the debt buyer's attorney will lie and say I was served in DeKalb County and win a default judgment against me. Has this ever happened to anyone else? What are my options?
Title: Re: Sued in Wrong County in Georgia
Post by: Flyingifr on January 03, 2017 05:01:26 PM
I just found out I am being sued in DeKalb County, Georgia. The only reason I know about the lawsuit is because I have received dozens of solicitations from law firms shortly after the suit was filed that were forwarded to my new address in another county. I would just ignore the lawsuit, but I am afraid that the debt buyer's attorney will lie and say I was served in DeKalb County and win a default judgment against me. Has this ever happened to anyone else? What are my options?

Happens all the time (being sued in wrong county or State, process server lying about serving defendant and/or a default judgment being entered).

What would I do? I would monitor the progress of the suit in DeKalb County. One of two things will happen:

1: Either the process server will do the correct thing and state that you cannot be found at the address provided, or
2: The process server will lie by filing a false Affidavit of Service.

If #1, then the suit should end up being dismissed for lack or Service. There is a chance the Plaintiff may ask the Court for Service by Publication. That Motion would show up in the case progress files that you are monitoring.

If #2 the you file an Answer in DeKalb County denying the Court's jurisdiction over you, along with a suit against the Plaintiff for the FDCPA violation of suing you in the wrong jurisdiction and against the Process Server for denying you your civil rights by filing a false and fraudulent Affidavit of Service.
Title: Re: Sued in Wrong County in Georgia
Post by: janegreer on January 03, 2017 05:21:41 PM
Thanks for your help. You have given me some peace of mind.

By the way, what happens with the case if the Plaintiff asks the Court for Service by Publication? Will they then get a default judgment against me, or is the Judge likely to dismiss the case?
Title: Re: Sued in Wrong County in Georgia
Post by: fisthardcheese on January 03, 2017 06:33:03 PM
Thanks for your help. You have given me some peace of mind.

By the way, what happens with the case if the Plaintiff asks the Court for Service by Publication? Will they then get a default judgment against me, or is the Judge likely to dismiss the case?

You can go to http://ojs.dekalbcountyga.gov/ and search for the case number that appears on all the junk mail you are getting.  This will allow you to keep an eye on the court docket and you will know if they claim that you were served and a hearing date is set.  A hearing would be set 30 days after any supposed service, so you will have plenty of time to deal with that should it happen.

Who is the JDB that is trying to sue you and who is the OC they bought the debt from?  We may be able to help you kill this off before they end up suing you in your current county.
Title: Re: Sued in Wrong County in Georgia
Post by: janegreer on January 03, 2017 06:40:00 PM
According to the case information found online, the JDB is Midland Funding LLC and the OC is Barclays Bank Delaware.
Title: Re: Sued in Wrong County in Georgia
Post by: fisthardcheese on January 03, 2017 06:55:54 PM
According to the case information found online, the JDB is Midland Funding LLC and the OC is Barclays Bank Delaware.

Because they filed in the wrong county, I would first go with the advise of contacting an attorney as mentioned on the other board.  If the attorneys don't want to take your case or want to charge you to defend the case, come back here and let us know.  You can use the Barclay's Card agreement to file private arbitration on Midland and that will prevent them from being able to (legally) sue you again in the correct county. 

But I have a feeling you may get help from an attorney on this one once you call them and explain your situation.
Title: Re: Sued in Wrong County in Georgia
Post by: 11181986 on January 04, 2017 02:30:22 PM
Defend the action and file an answer and you automatically collect your $1,000.00

If the process server can't find you, and the case is dismissed for no service of the complaint upon you, then there is no FDCPA violation under Spokeo (this used to be a violation in the past).

However, if you defend an action in another county, you then have standing to maintain FDCPA claim.

Title: Re: Sued in Wrong County in Georgia
Post by: Flyingifr on January 04, 2017 03:30:11 PM
Thanks for your help. You have given me some peace of mind.

By the way, what happens with the case if the Plaintiff asks the Court for Service by Publication? Will they then get a default judgment against me, or is the Judge likely to dismiss the case?

If they are granted Service by Publication, that takes the Process Server's Affidavit of Service out of the mix, but it does not resolve the jurisdictional problem of the wrong County.
Title: Re: Sued in Wrong County in Georgia
Post by: LightBearer1307 on January 04, 2017 03:49:03 PM
Defend the action and file an answer and you automatically collect your $1,000.00

If the process server can't find you, and the case is dismissed for no service of the complaint upon you, then there is no FDCPA violation under Spokeo (this used to be a violation in the past).

However, if you defend an action in another county, you then have standing to maintain FDCPA claim.


I would consider filing a motion to dismiss for lack of personal jurisdiction and then around the same time initiate an FDCPA lawsuit as the plaintiff. You're not obligated to appear in the action and file a full-blown answer with a counter-claim because you say the court is wrong and has no personal jurisdiction over you.

You sue the debt collector for the FDCPA violation and then if they later file in a correct court I would file an answer with a counter-claim for a new FDCPA violation and allege that what was unfair and deceptive is that they are suing you twice for the same debt and it is unfair that they first sued you in an improper court, costing you time and money to address the issue, and now they want to sue you in the proper court in what is obviously an attempt to wear you down with attrition.

I'd hit them up for the second/separate FDCPA violation and either that settles and they contractually agree to write the debt off, cease collection activity, and not sell/give/transfer/etc the debt to any other party, or you go to a judgment on the matter.


Or in the wrong court, file a full-blown answer with a counter-claim and lawyer up so the lawyer can rack up fees and with the fee shifting provision of the FDCPA it should be easy to stick them with your atty fees because they violated the FDCPA by suing you in the wrong court.


There are any number of ways to attack this problem... You should consider conferring with an attorney in your area and deciding which way might work best for you.
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer on January 04, 2017 04:28:00 PM
Suing for a debt in the proper venue is not a violation, nor is it "unfair." If the first FDCPA suit is successful, they will be punished. Res judicata attaches,
Title: Re: Sued in Wrong County in Georgia
Post by: 11181986 on January 04, 2017 05:51:10 PM

I would consider filing a motion to dismiss for lack of personal jurisdiction and then around the same time initiate an FDCPA lawsuit as the plaintiff. You're not obligated to appear in the action and file a full-blown answer with a counter-claim because you say the court is wrong and has no personal jurisdiction over you.

This is also valid option.

You sue the debt collector for the FDCPA violation and then if they later file in a correct court I would file an answer with a counter-claim for a new FDCPA violation and allege that what was unfair and deceptive is that they are suing you twice for the same debt and it is unfair that they first sued you in an improper court, costing you time and money to address the issue, and now they want to sue you in the proper court in what is obviously an attempt to wear you down with attrition.

This wouldn't work because the second FDCPA action would be barred under Res Judicata.
Title: Re: Sued in Wrong County in Georgia
Post by: fisthardcheese on January 04, 2017 06:38:02 PM
Defend the action and file an answer and you automatically collect your $1,000.00

If the process server can't find you, and the case is dismissed for no service of the complaint upon you, then there is no FDCPA violation under Spokeo (this used to be a violation in the past).

However, if you defend an action in another county, you then have standing to maintain FDCPA claim.

You know nothing of GA Magistrate courts.  File an answer and "automatically collect your $1k" is the dumbest thing you have said to date. And that's saying a lot.

Your claims of Spokeo invalidating an FDCPA violation is laughable.


I would consider filing a motion to dismiss for lack of personal jurisdiction and then around the same time initiate an FDCPA lawsuit as the plaintiff. You're not obligated to appear in the action and file a full-blown answer with a counter-claim because you say the court is wrong and has no personal jurisdiction over you.

I would file nothing without being served.  Especially in a GA Magistrate Court where no motions are heard outside of a trial.
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton on January 04, 2017 06:57:21 PM


Your claims of Spokeo invalidating an FDCPA violation is laughable.



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.
Title: Re: Sued in Wrong County in Georgia
Post by: fisthardcheese on January 04, 2017 07:35:07 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.

If a creditor improperly filed a lawsuit against me, that would cause me to be extremely frustrated, angry and anxious.  I have now been emotionally damaged.  I would seek $50,000 in actual damages and $1,000 in Statutory damages against them.
Title: Re: Sued in Wrong County in Georgia
Post by: 11181986 on January 04, 2017 08:04:41 PM
If a creditor improperly filed a lawsuit against me, that would cause me to be extremely frustrated, angry and anxious.  I have now been emotionally damaged.  I would seek $50,000 in actual damages and $1,000 in Statutory damages against them.

No. This has already been litigated post Spokeo and the consumer has lost. I've posted the cases.
Title: Re: Sued in Wrong County in Georgia
Post by: fisthardcheese 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.
Title: Re: Sued in Wrong County in Georgia
Post by: 11181986 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.
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer 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.
Title: Re: Sued in Wrong County in Georgia
Post by: 11181986 on January 04, 2017 09:36:28 PM
Doesn't matter you disagree, Spokeo states it is not a violation.
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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).
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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.
Title: Re: Sued in Wrong County in Georgia
Post by: fisthardcheese 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.
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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.
Title: Re: Sued in Wrong County in Georgia
Post by: fisthardcheese 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.
Title: Re: Sued in Wrong County in Georgia
Post by: 11181986 on January 05, 2017 02:57:00 AM
That would be an awful argument and wouldn't survive a 12(b)(1) motion.
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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.
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer 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.
Title: Re: Sued in Wrong County in Georgia
Post by: Clydesmom66 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? 
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer 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.
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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.
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer 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.
Title: Re: Sued in Wrong County in Georgia
Post by: Flyingifr 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.
Title: Re: Sued in Wrong County in Georgia
Post by: CleaningUp 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.
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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.   
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer 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.
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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.
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer 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.
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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. 
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer 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?
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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. 
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer on January 07, 2017 07:12:33 PM
Yes, I know, but it is the wrong circuit so it isn't binding.
Title: Re: Sued in Wrong County in Georgia
Post by: BellEbutton 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.
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer 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.
Title: Re: Sued in Wrong County in Georgia
Post by: 11181986 on January 14, 2017 10:50:43 AM
Commencement requires service.

No it does not. Commencement is simply filing.
Title: Re: Sued in Wrong County in Georgia
Post by: LightBearer1307 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.
Title: Re: Sued in Wrong County in Georgia
Post by: LightBearer1307 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/


*
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.
Title: Re: Sued in Wrong County in Georgia
Post by: Bruno the JDB Killer 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.”