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This is not a new subject, I know. I have researched different threads and the answers to this predicament come down to three:

(1) file a MTD in the wrong county without filing an Answer,

(2) file an Answer in the wrong county and include as an Affirmative Defense the wrong jurisdiction according to FDCPA 811,

(3) file both in the wrong county.

Has anyone experienced this dilemma in which any of the three options listed above worked, or did not work? Or, is there a 4rd or 5th option?

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(4) File a suit in Federal Court for FDCPA violations

You are going to need to look at your states Rules of Civil procedures. Sometimes you have to File answers anyway and file a MTD at the same time. This is usually captioned as a Limited Appearance.

They will ikely dismiss and refile, but then you have clear and convencing evidence of an FDCPA violation for a counter claim and a "Single violation is sufficant for Summary Judgement".

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They will ikely dismiss and refile, but then you have clear and convencing evidence of an FDCPA violation for a counter claim and a "Single violation is sufficant for Summary Judgement".

This is what I want to do.

It would depend upon the wording of the dismissal by the judge as to whether the FDCPA violation would be clear and convincing. If the judge were to simply say "dismissed" without any explanation (which sometimes happens) then I suppose that the only way to establish the violation would be through Discovery if the plaintiff does refile in the right county.

At the present I'm drafting a MTD and asking for more time to Answer the complaint if the court decides that it has jurisdiction. I don't really want to file an Answer becasue the court might think that I agree to the wrong jurisdiction.

I will be rechecking my RCP for clarification.

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The other thing is this: the judge or the plaintiff could simply transfer the case to the proper county. If that is an avenue of relief for the plaintiff ( or you), a FDCPA violation will not succeed, imo, as the plaintiff can say it was an honest mistake.

I would ask them to discontinue or move the case first. If they refuse, and you have to do it, you may have them for a violation as you can argue damages.

All told, it may be a violation, but not worth the $500 you need to file in federal court.

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If they refuse, and you have to do it

This is the point where I am at. I have to do it, the plaintiff has not responded to my request to dismiss its case in the wrong county. I have less than two weeks before my Answer is due.

Has anyone had any experience with filing a MTD, Answer, or both in an effort to dismiss a case in the wrong county?

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(1) file a MTD in the wrong county without filing an Answer,

(2) file an Answer in the wrong county and include as an Affirmative Defense the wrong jurisdiction according to FDCPA 811,

(3) file both in the wrong county.

You really need to check your RCP's. In some states you can file both at the same time, in others if you file an answer you voluntarily place yourself under that court's jurisdiction.

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Recovering Attorny said:

I would ask them to discontinue or move the case first. If they refuse, and you have to do it, you may have them for a violation as you can argue damages.

So, when I did write the plaintiff's attorney of my new address and it still filed the claim in the wrong county, this is kind of a simple mistake than anyone can make, right?

But, if I again write and ask for the attorney to withdraw the claim since it was filed in the wrong county, this is a second time that the Attorney has gone against updated info.

If the attorney continues to ignore the problem by refusing to withdraw the complaint after I have already notified it twice of the address change and my MTD goes in front of the judge, then isn't this becoming wilful noncompliance?

This is three times which the attorney has been appropriately notified of the address change.

(1) the lst letter before the claim,

(2) the second letter after the claim was filed, and

(3) the MTD itself.

All told, it may be a violation, but not worth the $500 you need to file in federal court

Do you still think that this "may" be a violation? How many letters for how many weeks do I need to send for it to become a violation? How many MTD's and Changes of Venue do I need to file?

And, why would I want to spend the $500 to file in Federal court, of which I have no experience, when I can use the plaintiff's dime in the lower court?

ficofightr said:

Were you properly served? Or did they do something like server an old address in a different county and you learned of the lawsuit (but were not properly served)?

This is the issue.

Also, how close are you to the SOL? Is it, say within 6-9 months or so?

Still within SOL.

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How far away is the SOL?

There's a strategy here if you are close to within the SOL, and you have solid proof that they served you improperly at an old address and you did not live there, it's in a different county, and you can show proof of evidence of your current address, here's what I did.

I let them win a default.

Then I waited until it was past SOL and filed motion to vacate default judgment and then had the case dismissed.

Even if they learn of my new address or show up in court to file another complaint that same day and serve me in person, it's past SOL.

But you need to check the rules of civil procedure of your state. There are time limits on when you can vacate a default judgment.

This strategy isn't for everyone, of course, because you can still run the risk that for whatever ungodly reason, the default is not vacated (or you make a procedural mistake), or that they get a lien on your assets before you can vacate the judgment.

So if the SOL is like 6-9 months out, this strategy can work. If the SOL is a couple years out, you better just attack it and quash service.

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ficofightr said:

Then I waited until it was past SOL and filed motion to vacate default judgment and then had the case dismissed.

Even if they learn of my new address or show up in court to file another complaint that same day and serve me in person, it's past SOL.

This is an intriguing strategy that could be used well with default judgements. I would think that the time to vacate a judgment would be somewhat unlimited for the consumer who was improperly served.

A lot of time issues start with the awareness of the event.

I feel the same way you do here:

This strategy isn't for everyone, of course, because you can still run the risk that for whatever ungodly reason, the default is not vacated (or you make a procedural mistake), or that they get a lien on your assets before you can vacate the judgment.

It would be hard to stand by and let a default judgment happen. If the conditions are right - the debtor has moved, the collector does not know the correct address, the debtor can successfully avoid detection for a few months, and the court and the creditor do not find out about the debtor's evasive actions then, I guess this could work.

The consumer debtor would have a big problem if the court found out that it was purposely hiding to pull off this scheme. Not only would the debtor not get its judgment vacated, it may be facing sanctions by the court.

I don't think that hiding from a debt is illegal. Consumer's move to different addresses in different states on a regular basis all the time for the purposes of avoiding debts.

If the creditor could prove (somehow) that the debtor was hiding from the debtor then I don't think that the debtor could get a judgment vacated.

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I agree. I don't think that there was any indication that I personally should try the SOL tactic suggested since I have already acknowledged the action. I think that the judge in any future vacating process would see that, although improperly served, that I did acknowledge the claim and simply chose not to respond.

The thought, I think, was that a different consumer (not me) could simply sit back and let the default judgment be issued, wait for SOL, then ask for the judgment to be vacated citing improper service.

I have already formulated a MTD which will be filed in the wrong county to counter the claim which was filed in the wrong county.

As a sidebar issue, I thought that ficofightr brought up a strategy, although chancy, could be put to good use under the right conditions.

I won't be doing this.

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  • 2 weeks later...

I had this situation except it was filed in the wrong state. They actually had my daughters address and served me at her address during a Christmas visit. I filed a MTD first based on inproper venue, no jurisdiction, then I filed an answer with my first objection being the inproper venue/jurisdiction with a graduated answer and explanation of why I was even answering in the first place (time constraints in event of MTD not being granted in time).

When I did all this, I had not found these boards and was really just shooting from the hip. I called the court house and was informed that if I filed my MTD and certified copy to defendent, that she would get me on the docket to be heard before the scheduled case hearing. Eliminating the need to file the answer at all. But because I didn't know what I was doing, I didn't get it done in time so just proceeded to the hearing.

Now, even though I had filed the MTD and the graduated answer, I went ahead and showed up in court, even though it meant that I had to stay in Tennessee for an extra month, I did not trust that things would work as they should. It is a good thing that I showed up.

The court had stacks of suits, the judge called your name and if you were not present, he ordered default judgement. Didn't open the case file, look at any motions or anything. There was no attorney there to represent the Plantiff. I was not allowed to speak except to say "here" and a attorney that was handling other cases for this OC stepped up and said that he had not been assigned that case but that he would "take" it.

After speaking with this attorney and showing him the papers I had filed, he approached the judge and requested a non-suit. My MTD was never even addressed.

Don't know if any of that helps you, just my personal experience.

Ms. B

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A few years ago I was sued in county court in the wrong state (New York -- not my state of residence, and I don't work there). The judge denied my MTD for lack of personal jurisdiction because I did not adequately prove where I DO live!

Actually, I tried to prove that I reside out of state by simply showing my driver's license and a utility bill to the judge while giving my oral argument at the motion hearing -- but he wouldn't accept these since they weren't "sworn evidence". It was my first time representing myself in court and I didn't realize that I also needed to state my current address in the MTD and in my Answer (attaching photocopied proof to each) as sworn proof of where I actually live.

If I were you, I would file a MTD right away, and BE SURE to include ample proof of your new address. Have your affidavit notarized together with attached exhibits (photocopies of documents) proving the new address!

It's OK to mention the FDCPA requirement as grounds for dismissal, but don't worry about a counterclaim right now. If the case does get moved to your home county, then you could persue the counterclaim at that point.

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If I were you, I would file a MTD right away, and BE SURE to include ample proof of your new address. Have your affidavit notarized together with attached exhibits (photocopies of documents) proving the new address!

It's OK to mention the FDCPA requirement as grounds for dismissal, but don't worry about a counterclaim right now. If the case does get moved to your home county, then you could persue the counterclaim at that point.

This is pretty much what I did. The only difference is that I asked for dismissal rather than change of venue. I couldn't find anything in my Rules which indicated exactly what I should ask for so I thought, "Well, why not just ask for a dismissal? I could get it and the plaintiff would have to refile".

I did state at the end of the pleading for the judge to grant what it thinks is "just and proper".

In the affidavit I included all the events which happened up to the filing of the MTD along with a denial of the debt.

It's up to the judge now.

It is interesting to hear of the different stories about circumstance like mine. I'll be sure to keep everyone updated so that others can learn from my experience too.

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I think you did the right thing by filing a Motion to Dismiss.

But did you include your new address in your motion and attach proof that you live in another county? If not, the judge could do the same to you as he did to me -- he denied my motion because I did not provide proof (sworn in an affidavit) that I live in another state!

If you didn't include this in your motion papers then BE SURE to file another Affidavit in Support (with proof on new address) prior to the day of the hearing!

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Along with the affidavit of events, I sent in a DV letter to the plaintiff's attorney telling the attorney of the new address. The attorney wrote me at the correct address. The attorney simply dunned me for money again and I sent another request for DV. The attorney then filed the current action in the wrong county.

I sent another letter to the attorney asking that her client dismiss its case against me since it had been filed in the wrong county. No response.

The attorney responding to my DV letter, in which she sent her response to the corrected address, is the basis of my argument. Here, by filing a summons in the wrong county, she is guilty of negligent noncompliance. When she did not respond to my request to dismiss the action she is guilty of wilfull noncomliance.

At any rate, I did deny the debt via sworn statement. Even if the judge does decide that the court has jurisdiction it should not issue a default judgment. I may have lost some rights to issue affirmative defenses but I can still argue against the plaintiff's insufficient evidence.

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Well there you go. If you still have the letter the lawyer sent to the correct address *before* filing the case you have a clear violation. The only thing that may negate that is if the boundries are blurred some what by living very close to the boundry or if the debt was created in the other county.

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If you end up at the hearing for this, be careful. I was so upset over mine that even though the other side requested a non-suit, I asked the court if I was even going to be allowed to speak, the judge said sure, but be advised that anything you say could change the outcome.

If any portion of the case is heard except for the issue of jurisdiction/wrong venue, then it can actually have the effect of creating that venue I think.

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