Gurstel Chargo & Cap1 summons improper venue please help!

[azsnglmom]

Hello! Brand new here and any help would be greatly appreciated! I received a civil summons from Gurstel Chargo/Cap1 but it was filed in, and states I live in, a different county than I do. I have heard that that is a possible violation of the FDCPA but I don't know if that is true. I want to file a motion to dismiss for improper venue, is this right? And if so, I would like to use the best wording in it. I have a motion form from the court it was filed with and it has these 4 sections for me to complete..

I would like the court to:

Statement of facts:

Legal Support:

Conclusion:

I have until the 6th of Feb to file something, I believe, since I was served on 01/16. I have been going thru a divorce and am just trying to get back on my feet and take care of my 2 boys. Any help would be very much appreciated.
Thank you!

[1stStep]

Which county was it filed in? Which county do you live in now? Most importantly, where did you incur the debt?


It's an FDCPA violation if you are sued in the court venue where you do not live, or did not incur the debt.

Since you're being sued by Cap1 (an original creditor) - they are not subject to the FDCPA... on the other hand, the law firm is subject to it. If they did indeed file suit in the wrong venue, sue for the FDCPA violation.

[azsnglmom]

It was filed in Maricopa county and I live in Pinal county and have for going on 8 years now, since before I ever had that card. Would I file that separate from the motion? Thank you!

[1stStep]

So you want to file a motion to change venue first of all. I think the forms are at the courthouse.


Yes - you want to sue the law firm separately. You may want to seek a lawyer to assist with this.

[Recovering Attorney]

Yes, it is a separate action you bring against the law firm for violating 1692i.

In the meantime, you need to answer the complaint.

[legaleagle]

You should post the complaint (type it) change the names and round off the amount. Give us the date when the account went into default. That would be the date of the last payment you missed.

[azsnglmom]

Gurxxxx Chaxxx PA
Attorneys for Plaintiff

In the San Tan Justice Court of the State of Arizona in and for the County of Maricopa

Capital One Bank
Plaintiff,

vs.

(me) and J Doe spouse
my address
defendant

Plaintiff, Cap 1, by and through the undersigned counsel, as and for its cause of action against the above-named defendant hereby states and alleges as follows:

General Allegations

1. Defendant is a resident of the State of Arizona, County of MARICOPA (specifically residing within the boundaries of the San Tan Justice court); thus venue is proper.

2. The amount sought by Plaintiff hereby, exclusive of interest, costs and awarded attorneys' fees is less than $10,000.00; therefore, this court has jurisdiction over this matter.

3. As owner of the debt at issue, and pursuant to A.R.C.P. Rule 17(a), Plaintiff is the real party interest entitled to sue on the debt alleged herein.

4. Upon information and belief, Defendant was married at the time the debt alleged herein was incurred, remains married currently, and the debt was incurred to the benefit of the marital community of Defendant. Plaintiff alleges that Defendant and the marital community of Defendant is liable for the debt alleged herein. Plaintiff requests leave to amend this Complaint to include the spouse's true name to this Complaint once identified.

5. Alternatively, in the event that Defendant was not married at the time the debt alleged herein was incurred, but is currently married, Plaintiff alleges that pursuant to A.R.S. 25-215 (B) Defendant and the marial community of Defendant is liable for the debt alleged herein.

6. Additionally, in the event Defendant was married to J. Doe Ex-spouse at the time the debt alleged herein was incurred, but is no longer married to J. Doe Ex-spouse, Plaintiff alleges that the marital community of Defendant and J. Doe Ex-spouse is liable for the debt alleged herein, and Plaintiff seeks to include J. Doe Ex-spouse in this action and any subsequent judgement, and requests leave to amend this complaint to include the ex-spouse's proper name once identified.

7. Pursuant to A.R.S. 12-341 the prevailing party shall be entitled to an award of all costs and, pursuant to A.R.S. 12-341.01, the prevailing party may be entitled to an award of reasonable attorneys' fees incurred in pursuing the action.

8. Court costs as actually incurred are chargeable to Defendant if Plaintiff is the prevailing party.

COUNT 1

9. Plaintiff realleges each and every allegation in paragraphs 1 through 8 as though fully set forth herein and incorporates them by this reference.

10. That Defendant applied for a revolving credit card from Plaintiff, and Plaintiff accepted Defendant's application and issued to Defendant its credit card.

11. That Defendant accepted and used said credit card thus issued to Defendant and thereby agreed to abide by the terms and conditions accompanying said credit card.

12. That Defendant owes to Plaintiff for the purchase of goods, wares, and services, the sum of $47XX.XX.

13. That although duly demanded, Defendant has failed to pay said amount and therefore is indebted to the Plaintiff in the amount of $47XX.XX.

COUNT II.
ACCOUNT STATED

14. Plaintiff realleges the allegations set forth in paragraphs 1 through 13 as though fully set forth herein and incorporates them by reference.

15. From time to time, Plaintiff made and rendered to Defendant accurate invoices and/or statements of account of the transactions between said parties. Said invoices and/or statements of account were received by Defendant, accepted and retained by said Defendant without objection being made thereto or to any item thereof.

16. In furtherance of the charges made and cash advances taken, a full, just, and true account was made and stated between Plaintiff and Defendant, which showed a balance of $47XX.XX, due to Plaintiff from Defendant over and above all sums received from Defendant and for which Defendant is entitled to credit.

17. That although duly demanded, no part or portion of the amount due and owing has been paid.

WHEREFORE, Plaintiff respectfully requests the Court to enter judgement against Defendant as follows:

1. For the amount of $47XX.XX

2. For Plaintiff's costs and disbursements incurred herein;

3. Reasonable attorneys' fees of $750.00 in the event of a default judgement or as actually incurred otherwise;

4. Interest accruing at the statutory interest rate on the full amount of the judgment after the judgement is entered; and

5, For such further and additional relief as the Court deems just, fair and equitable in the premises.

OBVIOUSLY there is alot of stuff I don't agree with in here, mostly the county part. From my records the last payment I made to them was in April of 2009.
Thank you so much for all the responses and help!

[1stStep]

If you defaulted w/ Cap1 in 2009, you can use their arbitration clause against them, espcially since the debt looks like it's under $5k...

Cap1cardagreementArb

Keep this as something up your sleeve.


///

As far as San Tan Justice Court - use this map to see the court boundaries...if you live outside them, then the lawyer commited an FDCPA violation.

Maricopa County, Arizona Elections Interactive Mapping

[azsnglmom]

According to that map I am definately outside their boundaries

[azsnglmom]

Do you know if I have to file a memorandum with the motion? And what does that need to state? Can I ask for dismiss with prejudice? I don't know anything about arbitration..

[azsnglmom]

Sorry for all the questions and posts..I'm just feeling stressed running out of time. I need to file this week :s

[1stStep]

Originally Posted by azsnglmom

Do you know if I have to file a memorandum with the motion? And what does that need to state? Can I ask for dismiss with prejudice? I don't know anything about arbitration..

File your answer first...then you can go and file the motion to change venue...don't waste your time filing a motion to dismiss because you will not get it.

[azsnglmom]

I read that if you file an answer first, that then you are not permitted to file a motion..

[1stStep]

That's right...my Adderall had worn off... you'll need to file the motion first.

Read ARS 12-407:

12-407. Order for change of venue; transmittal of papers; payment of fees and costs; effect of failure to pay

A. If a change of venue is ordered, the court shall transfer the action to the most convenient adjoining county, unless the parties agree to some other county in which case the court shall transfer the action to the agreed upon county.

B. The clerk shall promptly transmit the papers and transcript of the proceedings in the action to the clerk of the court to which the venue is changed. Except as provided in subsection E of this section, the party applying for the change of venue shall pay a transmittal fee established pursuant to section 12-284 within twenty days after the order directing the change. If payment is not timely made, the application for change of venue and the order for change of venue shall be deemed abandoned. If the change is abandoned, the action shall proceed as if the order for change of venue had not been made.

C. On payment by the party applying for a change of venue of the fee required on the filing of a complaint, the clerk of the court to which the action is transferred shall docket the action in its order. The action shall be tried or otherwise disposed of as if it had originated in that court.

D. Except as provided in subsection E of this section, failure to pay the fee as required in subsection C of this section within thirty days from the date the new court receives the file shall be deemed an abandonment. The clerk of the court to which the action was transferred shall promptly transmit all papers to the court in which the action originated, and the action shall be disposed of as if no change of venue had been granted.

E. If a change of venue is ordered pursuant to section 12-404, the plaintiff shall pay the transmittal fee established pursuant to section 12-284 within twenty days after the order directing the change and, within thirty days from the date the new court receives the file, the plaintiff shall pay to the clerk of the court to which the action is transferred the fee required on the filing of a complaint as provided in subsection C of this section. If the plaintiff fails to timely pay either the transmittal fee or the filing fee in the county to which the action is transferred, the court shall dismiss the case without prejudice.

File a motion to change to the correct venue...the clerk should have the forms at the San Tan Court.



///////
Also, they won't pay to move to the correct forum, and if that happens- the case will continue in San Tan Court. Check with the clerk to see if you can pay the fee...but first give them the chance to correct it, fax them a letter that reads:

You firm filed suit against me in San Tan Court, however I live outside the boundaries of the court and never incurred the debt in this court. Your firm has violated 15 USC 1692i by filing this case in the incorrect venue. I plan on filing suit against the firm for this violation.

Once they get this letter, you've put the ball in their court - if they are smart, they will move it to the appropriate court in Pinal County...if not, you've got a nice paper trail for the FDCPA suit against the firm.

[azsnglmom]

Thank you for all your help! Should I make any mention of the 1692i violation in the motion?

[1stStep]

Not in the motion, but I would in the letter to the law firm.

[legaleagle]

As far as San Tan Justice Court - use this map to see the court boundaries...if you live outside them, then the lawyer commited an FDCPA violation.


What address was on the complaint? Was it your current address? They'll probably argue that it was a permissible error made by some office staffer.

[azsnglmom]

Originally Posted by legaleagle

As far as San Tan Justice Court - use this map to see the court boundaries...if you live outside them, then the lawyer commited an FDCPA violation.


What address was on the complaint? Was it your current address? They'll probably argue that it was a permissible error made by some office staffer.

Yes it was my current address on the complaint... Update, I filed a motion to dismiss for improper venue, I received a trial date notice from the court dated 02/09/12, then I just received that the attorney's office filed a response objecting to my motion, filed on 02/16/12, the very last day they had within the 10 days, they also filed for change of venue and stated that is was the process server's error why it was filed in the wrong court.

My question is do I have to file something in response to that? What about the FDCPA violation? Can I file something stating that? Or do I wait and let them move it to the new Venue and then continue my fight? Am I safe to assume they did not purchase this from Cap1 or should I check a recent credit report? I also have been reading that they are not allowed to run my credit report without my permission, and that they have been known to do this just prior to filing suit. I find it coincidental that I recently financed a car and that is the only thing I have had on my credit since this credit card. I am very thankful for this forum and all your advice

[azsnglmom]

...Oh and they filed an Affadavit of attorney..

[1stStep]

Send the meet and confer letter to the attorney...merely correcting the venue violation does not make it go away.

You see that they are already trying to shift the blame over to the process server - who, last time I checked, has nothing to do with the preparation of court papers (mention that in the letter if you want).