Jumpingm

A civil procedure question. CA threatening to sue in wrong venue with longer SOL

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if it helps any...there is a case law that talks about the "borrowing statute" in florida concerning georgia...

its the supreme court of florida case no. #87,110 fulton county admin vs james vincent sullivan which talks about forum shopping.

the lesser of the two states is applied....

title 8 chapter 95.10 of the florida statutes.

it seems that if the tort or cause of action occured in another state and the lapse of time prevent it from being claimed on in court in that state, it prevents it from being claimed on in florida. maybe the statute of something similar in GA can be found. someone from GA or yourself can look it up. i am having issues at the moment with mine and have hit a dry well here. no one seems to be offering any further help but in your case, they might.

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as for the pressence in a state...i believe it would take more than simply being alive and breathing in another state. if you take a job, own a car with that state reg. tags, sign up for voters rights etc etc.

students are allowed to live in another state and yet keep status in their former state. the states have realized this along with military personel on temp assignments and vacationers such as snowbirds....and dont allow people to be sued in states they are not a resident in or the action occured in the former state. i just know of fla statute, sorry i cant help with ga's...

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No, actually simply being there and breathing is adequate to confer personal jurisdiction. Everyone keeps interposing a relationship with long arm statutes which are only involved when they are trying to haul your butt into court in another state.

Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that once having acquired jurisdiction over such a person by properly serving him with process, the State could retain jurisdiction to enter [495 U.S. 604, 611] judgment against him, no matter how fleeting his visit. See, e. g., Potter v. Allin, 2 Root 63, 67 (Conn. 1793); Barrell v. Benjamin, 15 Mass. 354 (1819).

Decisions in the courts of many States in the 19th and early 20th centuries held that personal service upon a physically present defendant sufficed to confer jurisdiction, without regard to whether the defendant was only briefly in the State or whether the cause of action was related to his activities there. See, e. g., Vinal v. Core, 18 W. Va. 1, 20 (1881); Roberts v. Dunsmuir, 75 Cal. 203, 204, 16 P. 782 (1888); De Poret v. Gusman, 30 La. Ann., pt. 2, pp. 930, 932 (1878); Smith v. Gibson, 83 Ala. 284, 285, 3 So. 321 (1887); Savin v. Bond, 57 Md. 228, 233 (1881); Hart v. Granger, 1 Conn. 154, 165 (1814); Mussina v. Belden, 6 Abb. Pr. 165, 176 (N. Y. Sup. Ct. 1858); Darrah v. Watson, 36 Iowa 116, 120-121 (1872); Baisley v. Baisley, 113 Mo. 544, 549-550, 21 S. W. 29, 30 (1893); Bowman v. Flint, 37 Tex. Civ. App. 28, 29, 82 S. W. 1049, 1050 (1904). See also Reed v. Hollister, 106 Ore. 407, 412-414, 212 P. 367, 369-370 (1923); Hagen v. Viney, 124 Fla. 747, 751, 169 So. 391, 392-393 (1936); Vaughn [495 U.S. 604, 613] v. Love, 324 Pa. 276, 280, 188 A. 299, 302 (1936). 2 Although research has not revealed a case deciding the issue in every State's courts, that appears to be because the issue was so well settled that it went unlitigated. See R. Leflar, American Conflicts Law 24, p. 43 (1968) ("The law is so clear on this point that there are few decisions on it"); Note, Developments in the Law - State Court Jurisdiction, 73 Harv. L. Rev. 909, 937-938 (1960). Opinions from the courts of other States announced the rule in dictum. See, e. g., Reed v. Browning, 130 Ind. 575, 577, 30 N. E. 704, 705 (1892); Nathanson v. Spitz, 19 R. I. 70, 72, 31 A. 690, 691 (1895); McLeod v. Connecticut & Passumpsic River R. Co., 58 Vt. 727, 733-734, 6 A. 648, 649, 650 (1886); New Orleans J. & G. N. R. Co. v. Wallace, 50 Miss. 244, 248-249 (1874); Wagner v. Hallack, 3 Colo. 176, 182-183 (1877); Downer v. Shaw, 22 N. H. 277, 281 (1851); Moore v. Smith, 41 Ky. 340, 341 (1842); Adair County Bank v. Forrey, 74 Neb. 811, 815, 105 N. W. 714, 715-716 (1905). Most States, moreover, had statutes or common-law rules that exempted from service of process individuals who were brought into the forum by force or fraud, see, e. g., Wanzer v. Bright, 52 Ill. 35 (1869), or who were there as a party or witness in unrelated judicial proceedings, see, e. g., Burroughs v. Cocke & Willis, 56 Okla. 627, 156 P. 196 (1916); Malloy v. Brewer, 7 S. D. 587, 64 N. W. 1120 (1895). These exceptions obviously rested upon the premise that service of process conferred jurisdiction. See Anderson v. Atkins, 161 Tenn. 137, 140, 29 S. W. 2d 248, 249 (1930). Particularly striking is the fact that, as far as we have been able to determine, not one American case from the period (or, for that matter, not one American case [495 U.S. 604, 614] until 1978) held, or even suggested, that in-state personal service on an individual was insufficient to confer personal jurisdiction. 3 Commentators were also seemingly unanimous [495 U.S. 604, 615] on the rule. See, e. g., 1 A. Freeman, Law of Judgments 470-471 (1873); 1 H. Black, Law of Judgments 276-277 (1891); W. Alderson, Law of Judicial Writs and Process 225-226 (1895). See also Restatement of Conflict of Laws 77-78 (1934).

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did we lose our rights to have the venue changed to the state we reside in?

with all that you posted, it seems that if i were to step one foot in another state and the process server was standing there waiting for me, i would be held to that states law concerning lawsuits...i dont think so. the right we have to have a venue changed to our state we reside in still exists....

what i was referring to is they would have to prove otherwise that i was a resident of that state with offical documents. otherwise, i could simply and have every right to have the venue changed by LAW to the where i live.

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Mikey, you're confusing two different legal theories: Forum non conveniens, or an inconvenient forum, and in personam jurisdiction, or personal jurisdiction.

Absent a forum having exclusive jurisdiction, if you are served in a forum which is inconvenient, you can motion the court to move the case where you reside providing that court has both subject matter and personal jurisdiction. Courts always grant such motions in matters such as we're discussing.

In the OP's situation, he'd be hard pressed to convince a court the MA forum was inconvenient as he lives there.

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Mikey, you're confusing two different legal theories: Forum non conveniens, or an inconvenient forum, and in personam jurisdiction, or personal jurisdiction.

Absent a forum having exclusive jurisdiction, if you are served in a forum which is inconvenient, you can motion the court to move the case where you reside providing that court has both subject matter and personal jurisdiction. Courts always grant such motions in matters such as we're discussing.

In the OP's situation, he'd be hard pressed to convince a court the MA forum was inconvenient as he lives there.

i agree but then someone (yourself) mention they could sue you just being in another state alive and breathing which i disagreed. if someone has an aprtment/house and is living there, whether perm or temp, it is convenient...but if someone is there vacationing or shopping, its isnt. also, i would think if i were in the process of moving back and served and the process would cause hardship because it would force me to stay longer than intended, i could have the venue changed to my home state. eg....i have movers coming to my house at the first of the next month, given notice to landlord and job and have all the plans set to move and then i get served...i wont be in the state for any proceedings and would ask the court to vacate and have it refiled in my state i am moving to. right or wrong? i think i would have a case if i showed it was not in the best interest to sue a person not in that state just as it would not be right to file a suit 1,000 of miles away because someone used to live there or was in town for a brief period aiding a family member in sickness or going to school and finishing up or going back home for the summer.

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Mickey, I'm not going to go back and forth. The fact that mere physical presence in a state confers personal jurisdiction is a well settled legal principal dating back to English common law, and is supported by case law in a majority of states. And, the US Supreme Court has determined it satisfies the consititutional requirements of fair play, substantial justice, and due process.

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Jurisdiction over the subject matter is also a necessary component that tempers the personal jurisdiction issue. You must still have all three; both parties and the subject matter.

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Mickey, I'm not going to go back and forth. The fact that mere physical presence in a state confers personal jurisdiction is a well settled legal principal dating back to English common law, and is supported by case law in a majority of states. And, the US Supreme Court has determined it satisfies the consititutional requirements of fair play, substantial justice, and due process.

I agree - if someone lives in the state in which they are being sued, it would be tough to say it's inconvenient, even if the state in which a debt was incurred is not the current state of residence.

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Jurisdiction over the subject matter is also a necessary component that tempers the personal jurisdiction issue. You must still have all three; both parties and the subject matter.

Not sure what you're trying to say here. The court need not determine if they have personal jurisdiction over the plaintiff as they've conferred personal jurisdiction of the court over them by filing suit. It's only a matter of personal jurisdiction over the defendant, and subject matter jurisdiction.

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That's right. I was mainly pointing out the requirement for subject matter jurisdiction as well a personal jurisdiction in hopes of diffusing some of the frenzy over personal jurisdiction in this thread.

The entire process works extremely well when all component parts are taken into account. However, when one aspect of the legal process is taken out of context and focused upon individually, the result is often confusing.

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I’m sorry to start such a complicated thread. Here is what I believe to be correct. Please feel free to add to or correct me.

Three things need to be present to successfully force someone to litigate in a specific court.

1) Personal Jurisdiction: The court must have jurisdiction over the person. There are 3 ways PJ is automatic. Service in the state, Domicile in the state, and if you waive your objection to PJ. Then there are the long arm jurisdiction statutes that allow them to haul you into a state your not even in to litigate. An example would be that state A can force you go there to litigate if you got into an accident in State A and drove home to State B and were sued in tort in State A by the person you got into the accident with.

2) Subject Matter Jurisdiction: Courts are limited in what types of cases they can hear based on the authority granted to them by Article III of the Constitution and limited by Congress and appropriate State governments. For instance, federal courts have SMJ over FDCPA claims allowing a CA to remove your case (against your will even) to federal court. A state example would be that a criminal matter would lack SMJ in a probate court.

3) Venue: Venue is also required and is slightly more complicated because the rules change depending on the type of SMJ. Venue is proper (in federal question cases at least) wherever a substantial part of the events giving rise to the claim occurred or where the defendant resides. Objections to venue such as those stated in previous posts often require the court to conduct a balancing test to determine whether it should be transferred or even dismissed. Courts do have some discretion in this area. My proper argument it seems was one of venue and not PJ.

Simply put, anytime you can show one of those three do not exist the case will be dismissed or in some venue cases, possibly transferred.

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lets put this one to rest with this...

below is the reason why they can NOT sue you somewhere you just happen to be at the time they serve you...eg, vacationing, shopping or visiting. Just because they found you somewhere other than your place of residency does NOT entitle them to sue you there. It MUST be a place where you reside at (meaning where you live most of the time) or you may have them change venues.

§ 811. Legal actions by debt collectors [15 USC 1692i]

(a) Any debt collector who brings any legal action on a debt against any consumer shall --

(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity --

(A) in which such consumer signed the contract sued upon; or

B)

in which such consumer resides at the commencement of the action.

(

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To the original poster: When did the account go delinquent? When did you "move" to Massachusetts? If the account is SOL before you moved out of GA, then you're all set.

What exactly is your "permanent" address????? Is it GA or MA? The state of MA and its courts recognize "permanent" addresses if you are a student. So, just because you live and go to school in MA, if you still have a "permanent" address in GA, then that is what they will consider your address.

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To the original poster: When did the account go delinquent? When did you "move" to Massachusetts? If the account is SOL before you moved out of GA, then you're all set.

What exactly is your "permanent" address????? Is it GA or MA? The state of MA and its courts recognize "permanent" addresses if you are a student. So, just because you live and go to school in MA, if you still have a "permanent" address in GA, then that is what they will consider your address.

glad to see someone else agrees that mere presence in a state doesn't translate into proper jurisdiction in that state. It requires a little more than actually being in that state. It REQUIRES that you actually reside there as a RESIDENT or change of venue is in order. You might get alot of advice here, you just have to sift thru some of the garbage here that is claimed.

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Venue is supposed to prevent a hearing from occuring in a location that would present an undue hardship for the parties. Since you are already present in the area, and you maintain a residence in the area of the court, I do not see how you can convince a court that venue is improper.

Mikey, in the short time you have been here, I have seen that you have a tendancy to refuse to accept any opinion that does not agree with your own. You the proceed to publically attack the person who disagreed with you.

In this case, I would ask you to cite a statute or a court decision that supports your position.

Also, in regards to your attacks- I asked you in a PM to be nice, because I had complaints about you. You said no problem- again in PM. You then proceeded to attack me in a snide way in public. I will not condone this, nor will the other mods/admins of this site.

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lol dive...it appears you are the one being so defensive. if you need that statute you asked for, read my prior post where i cut and pasted it...no where does it say "poses a hardship".....it says where you reside. i can not be sued by a state where i am not a resident citizen. they have no say. so dont be so hung up with me just i tend not to bow down to your beliefs. this site i would imagine offers the choice to disagree with each one of us having different opinions unless your view of dictorship is widely approved. oh, i guess censorship is next if everyone doesnt agree with you and the kingdom....lol :roll:

dive would have your one foot across state line as being sue-able...so you better get that foot back across the line.....;)

btw dive...nowhere in my post did i mention you...why do u think i was talking about you?

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Mikey, this ends NOW. Dive is a mod here for a reason, and his sound advice has helped way more people than your snide little snipes at him and everyone else.

CUT THE CRAP. OR ELSE.

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Mikey, this ends NOW. Dive is a mod here for a reason, and his sound advice has helped way more people than your snide little snipes at him and everyone else.

CUT THE CRAP. OR ELSE.

I second that. You've been warned over and over.

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To answer the OP without all the arguement.

Remember that the statute states that the suit must be filed where the contract was entered, or where the debtor resides. Note that the statute does not mention anything about permanent residence.

In the case of this thread, the OP states he has an apartment in the MA venue, and that he has contacted the CA from his MA address. The OP is attempting to claim that since he is not a PERMANENT resident of MA, he cannot be sued there, and since the SOL has run in GA, he cannot be sued there.

Since the OP maintains a residence in MA, which he has presumably resided in for some time, and the FDCPA states that:

"(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity --

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action."

Note that the statute does not mention the location of the transaction leading to the cause of action, but to the residence of the consumer AT THE TIME THE ACTION IS COMMENCED. Thus, venue IMO, would be proper in MA.

Even if the venue argument is upheld, this would certainly leave him unavailable for service in GA, thus tolling the SOL in GA, and leaving the OP open to suit under a tolled SOL there when he returns.

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The good news is that this is a moot point because I got the TL removed by NCO. (see posting in NCO succcess thread) There is still some value to analyzing the situation so I offer the following details.

I opened the account while living in GA on 8/98. Went delinquent 5/01. I "moved" to MA in 8/05. It appears that I ran the SOL in GA prior to moving and I think that would prevent a CA from using MA SOL.

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You are correct in that case, since the SOL ran BEFORE you moved, venue is not the question here, and I would base any defense on the fact that the SOL had run prior to your leaving the state.

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