Gurstel Chargo & Cap1 summons improper venue please help!

[legaleagle]

was the process server's error why it was filed in the wrong court.


I would reply to the Objection and include a discovery request asking for any and all evidence supporting the contention they make that it was the process server's fault. I assume you have a copy of the summons they prepared. Lying to the court is a non-no for an attorney. Let them know you intend to pursue the FDCPA violations (I think that little white lie is another one) and file a complaint with the bar association. That will get their attention.

[azsnglmom]

Originally Posted by legaleagle

was the process server's error why it was filed in the wrong court.


I would reply to the Objection and include a discovery request asking for any and all evidence supporting the contention they make that it was the process server's fault. I assume you have a copy of the summons they prepared. Lying to the court is a non-no for an attorney. Let them know you intend to pursue the FDCPA violations (I think that little white lie is another one) and file a complaint with the bar association. That will get their attention.

Yes they stated it was the process server's error..I have 2 copies of the summons they prepared, that he delivered totally open for him to read, and anyone else I guess! From what I read I have 10 days to reply? And do you have a link or where do I go to file a complaint with the bar association? Thank you!

[1stStep]

There's no real complaint form for the AZ Bar...maybe sending a letter to the bar and including the summons and notating the venue violation - I doubt the bar will do much to punish them...the only real way to punish the law firm is to file an FDCPA suit...

[azsnglmom]

I guess I can't upload an attachment.. I am filing a reply to their response? Yes? So do I make the objection and ask for discovery in that reply? Or do I attach something separate to the reply? I wanted to attach the reply form because I'm not sure of how to answer all the sections, it has:

I would like the court to:

Statement of facts:

Legal Support:

Conclusion:

I am going to try and contact a lawyer who does FDCPA tomorrow, but I know I have a time limit to file this reply, it says I have five days to do so at the bottom. So if I received the response on saturday, and monday being a holiday, I have until next monday, correct? Thank you so much!

[azsnglmom]

I'm confused because the response to my motion, the motion to change venue, and affidavit of attorney (which states it was process server's error) are 3 separate documents I received

[1stStep]

I'd respond ASAP.

By the way, have you sent the meet and confer regarding the venue violation? I'd fax it ASAP...the process server error is a crock of s--t.

[azsnglmom]

Originally Posted by 1stStep

I'd respond ASAP.

By the way, have you sent the meet and confer regarding the venue violation? I'd fax it ASAP...the process server error is a crock of s--t.

No I haven't, I'm not sure what a meet and confer letter should say. I am going to try and file tomorrow I was just unsure if I could put all the above info on the one form (reply to response to motion) The objection, request for discovery all on the reply?

[1stStep]

To Whom it May Concern:

In response to the case filed in XYZ County, AZ (case #####), which is the incorrect venue. I have been a resident LMNOP County, AZ since <DATE>. This means that your law office filed this case in the incorrect venue in violation of 15 USC 1692i.

Your efforts to blame the process server is, in my opinion fruitless, as it is your firm that holds the ultimate responsibility for supervision since it is my understanding the process servers do not prepare legal documents - the law firm does. Additionally, the attempt to correct the violation by moving into the correct venue does not relieve your firm of the liability for the FDCPA violation.

As such, I reserve the right to pursue litigation for the 1692i violation without further warning.



You can be a real stinker and send a copy of the letter to Cap1 too - it could get the law firm fired - since Cap1 will end up footing the bill for any defense.

[azsnglmom]

Originally Posted by 1stStep

To Whom it May Concern:

In response to the case filed in XYZ County, AZ (case #####), which is the incorrect venue. I have been a resident LMNOP County, AZ since <DATE>. This means that your law office filed this case in the incorrect venue in violation of 15 USC 1692i.

Your efforts to blame the process server is, in my opinion fruitless, as it is your firm that holds the ultimate responsibility for supervision since it is my understanding the process servers do not prepare legal documents - the law firm does. Additionally, the attempt to correct the violation by moving into the correct venue does not relieve your firm of the liability for the FDCPA violation.

As such, I reserve the right to pursue litigation for the 1692i violation without further warning.



You can be a real stinker and send a copy of the letter to Cap1 too - it could get the law firm fired - since Cap1 will end up footing the bill for any defense.

Thank you very much!

[legaleagle]

I would like the court to: Dismiss the instant action due to insufficient, improper service of process.


Statement of facts: Plaintiff served process in the incorrect county.


Legal Support: Cite whatever rule of procedure in your state covers service of process. May say commencement of action, it will be near the top of the list as it comes first. I wouldn't bother with case law, not really necessary for a simple matter. Attach copies of all the paperwork.

Conclusion: The court should grant the motion as the plaintiff has failed to properly effect service.

[azsnglmom]

Originally Posted by legaleagle

I would like the court to: Dismiss the instant action due to insufficient, improper service of process.


Statement of facts: Plaintiff served process in the incorrect county.


Legal Support: Cite whatever rule of procedure in your state covers service of process. May say commencement of action, it will be near the top of the list as it comes first. I wouldn't bother with case law, not really necessary for a simple matter. Attach copies of all the paperwork.

Conclusion: The court should grant the motion as the plaintiff has failed to properly effect service.

Thank you so much.. I stayed up hours last night searching for a rule to cite for service of process. I will have to continue that search today..

[KentWA]

Here are the AZ Rules of Civil Procedure for Service of Process:
http://weblinks.westlaw.com/toc/defa...6E8D4AC7636430

[legaleagle]

And the complete rules from the legislature:

Arizona Revised Statutes

See Rule 12-404, that's the one I think

[1stStep]

Actually you need to re-write the statement of facts:


Plaintiff filed suit in the wrong venue.

[azsnglmom]

Thank you all! KentWA that link didn't work.. So just so I'm clear, I'm filing this in my reply to their response? Or a new motion? I'm feelin stressed

[azsnglmom]

How do I include the discovery request?

[azsnglmom]

Originally Posted by legaleagle

I would like the court to: Dismiss the instant action due to insufficient, improper service of process.


Statement of facts: Plaintiff served process in the incorrect county.


Legal Support: Cite whatever rule of procedure in your state covers service of process. May say commencement of action, it will be near the top of the list as it comes first. I wouldn't bother with case law, not really necessary for a simple matter. Attach copies of all the paperwork.

Conclusion: The court should grant the motion as the plaintiff has failed to properly effect service.

Sorry to sound like the obvious amateur here..But in plain english what is the instant action? This is my reply to their response to my motion to dismiss, so where do I object to their response? and how do I request discovery?
Need to file tomorrow

[Seadragon]

I would hold off on that. the reply to their opposition should be to refute the points they made in their opposition.

The reason you filed the motion to dismiss is they filed in the wrong court. That means the court would have no right to hear this case. If you request discovery now you can sway the judge to thinking that jurisdiction is proper.

If the court grants your motion they will have to start all over again.

With the process server argument, They are not attorneys and should not be looking up the proper court for jurisdiction, additionally the process server is not allowed to prepare complaints and summons for the plaintiff.

As an agent for the plaintiff, the filing of a complaint and summons by a person other than a licensed and member of the state bar is against(whatever Business and Professions code is for AZ attorneys).

The Process server has no Mistake ,inadvertance, protections and is sanctionable by the court.

Filing a suit in an improper venue a violation of the FDCPA, and abuse of court process and thus sanctionable for the process server, the lawyer, the plaintiff severally and jointly.

You can flesh that out for filing with statute numbers for process servers duties, and all the rest.

That will go a long way to getting this thing.

remember don't get nervous and formulate your reply to address their opposition points and to reiterate yours. the bit about sanctions would give the court a chance to whack them on the fanny for wasting that courts time.

[1stStep]

Seadragon is right...sending discovery will pretty much show a judge that you are stipulating to the incorrect venue. Do not send any discovery.

OK so you are spending way toooo much time over analyzing this -

Have you even sent the meet and confer letter I wrote for you? If not, you need to send it TODAY!

Focus on the motion to change venue - and remember - process servers do not prepare legal documents. This is your attack point!!!!! You have the guy by the b@lls - so refute the process server claims.

[azsnglmom]

Ok..Sorry to be freaking out. I am just so confused. So I am to reply to their resonse and also respond to their change of venue motion? Yes I have your letter and am sending today. Thank you very much seadragon and 1st step