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Improper venue and trying to attack the judgement


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I am trying to help a friend of mine. Here's a short story on the problem.

My friend was convicted on DWI and lost his license for life. He had a car he was buying at a buy here pay here lot. Since he can no longer drive he gave it back.

He also lost his job over the DWI so he has no means to pay the deficiency. He has never denied in court that he owes the company any money.

The biggest issue is the fact that the Plaintiff filed in his own county which is about 20 miles from my friend. This is small town so you can see where I am going with this. They filed in their own county to have an advantage. The Plaintiff knows my friend does not have the means to go to court and is facing contempt for not showing up. Yes he missed a couple court dates.

My plan is to attack the judgement on its face as the case was filed in the wrong venue. Indiana Trial rule 75 state the following,

Rule 75. Venue requirements

(A) Venue. Any case may be venued, commenced and decided in any court in any county, except, that upon the filing of a pleading or a motion to dismiss allowed by Rule 12(B)(3), the court, from allegations of the complaint or after hearing evidence thereon or considering affidavits or documentary evidence filed with the motion or in opposition to it, shall order the case transferred to a county or court selected by the party first properly filing such motion or pleading if the court determines that the county or court where the action was filed does not meet preferred venue requirements or is not authorized to decide the case and that the court or county selected has preferred venue and is authorized to decide the case. Preferred venue lies in:

(1) the county where the greater percentage of individual defendants included in the complaint resides, or, if there is no such greater percentage, the place where any individual defendant so named resides.

and several other rules that do not apply.

I would argue that the judgment is void upon its face due to improper venue.

I would also argue that the Plaintiff knowingly filed in his own county because they knew the Defendant would sooner or later not be able to show up for court due to his situation. They gained an unfair advantage, and did not afford my friend with the proper due process given to him by the law. As in he could not properly defend himself because he could not show up for court.

There are some other things I am considering adding to the claim I am helping him with.

Do you gurus here think I am on the right track? looking for opinions.

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They can also sue where the contract was signed:

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

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

Unfortunately, he's trying to unscramble an egg at this point.

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Guest usctrojanalum
When you attacke venue, it is only to get the matter moved not dismissed.

Suing a consumer in the county other than the one he lives in violates 15 USC 1692i. The plaintiff may claim the contract was mad ein teh distant county, but most judges will probably side with your friend.

On it's face it doesn't violate 1692i. People sign contracts, and get services rendered in counties that they do not live in on a daily basis.

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Beware of state differences, but in my state an objection based on improper venue is raised as a preiminary objection. If it isn't raised within the 20 day timeframe of service of the complaint, it is waived.

So my guess is that you may have an an argument, but by ignoring the complaint when it arrived he waived his right to argue it.

Let's assume you jump through hoops and get the judgment vacated based on venue. They just refile in his county. And likely win. Seems the facts are pretty straightforward that he bought the car but couldn't pay. That's not a legal defense. So it would be all for nothing.

If he doesn't have a job and he doesn't have attachable assets, then its a moot point anyway, right?

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There is not much of a chance of changing the venue.

First, you only have 20 days from service to argue improper venue based on IRTP 6©. Since he has missed court dates, I have to assume he has missed this window.

Second, you need the read the rest of IRTP 75 A(5) reads:

(5) the county where either one or more individual plaintiffs reside,..., so they could still have argued that the current county was appropriate.

We know you want to help your friend, but it is likely too little too late. He will need an attorney at this point to stand any chance of mitigating this.

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My positions on this are this:

When they filed in their own county they knew that my friend could not easily make travel arrangements. He told them he did not have a license to drive, so they used it to their advantage.

I also found out from my friend that when he bout the car he told them on the day of the sale he did not have a license. They told him that would be ok as long as he was not the one who drove it off the lot.

My angle to try to help is the the fact they knew all this from the onset of the filing.

I am also going to try to argue that my friend does not know the law. And the court should follow the least sophisticated consumer rule.

I think my best approach would be a nunc pro tunct order.

Nunc Pro Tunc. It means " now for then". It is used to express the thing or action that should have been taken at much earlier date or time, but was over sighted by the court or the Plaintiff.

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Unfortunately, none of those arguments are valid against a contract dispute.

1. Based on your state laws, they are within their rights to file in their own county. So their motive is a moot point.

2. You do need a drivers license to enter a contract to buy a car.

3. Ignorance of the law is never a valid argument. "Least Sophisticated Consumer" is a terms that applies to FDCPA violations only. It was a term that was introduced by a judges decision. It is not applicable to court proceedings.

I am not trying to be negative for the sake of being argumentative. I am just pointing out the fact that there is very little in the way of a defense that has been presented so far. Most of the arguments will not even pass a MSJ.

Nunc Pro Tunc - usually reserved for clerical errors or omissions of the court. If a party wishes to correct a filing, they need to get leave of the court. This is not normally used for failure to file.

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Iheart, I know all this.

I am just trying to figure out an angle to help my friend.

I am trying to help him avoid a contempt charge and a bench warrant. He has been warned not to miss another day.

I am just going to type up a request for change of venue and explain that there are circumstances that will force the judge to enter a contempt decision, and it can all be avoided if he agrees to move this case to the county my friend lives in.

I will explain that if the case continues in this county it will eventually lead to jail time for contempt.

I will explain that he is being forced to find transportation 20 miles away and that if the case can be changed to his county he can at least be afforded transportation by public transportation. The bus stop is half a block from his house and the bus terminal is across the street from the court house.

I stead of trying to rely totally on the law as written maybe a hardship plead will encourage the judge to set aside the motion until the Plaintiff can file in my friends county.

If the judge denies the motion he then can at least appeal the decision with a court in his county, and hopefully the judge in his county, which I am very familiar with will more helpful with his situation.

He has never denied the debt he just can not pay as he has no job or any other means to pay.

The courts here in our county are very helpful when it come to these kind of cases and will even set aside to case if he explains he is going to try to file ch7.

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Two problems:

1. If you write that, you risk UPL exposure. If he is in the shape you describe, if he does show up for court, how will he present what you have written.

2. Justice is blind. It does not allow for hardship relief for civil contract cases. Actually if it were a criminal case, he would have a better shot with that argument. The judge can reduce a sentence, but they cannot rewrite the contract.

I think the best thing he can do in this situation is agree to some type of settlement. That is why I suggested the lawyer. They may be able to negotiate a better deal than what he is getting.

The other option to avoid contempt of court is admit to the debt. If he admits, there is no need for the case to continue and no need for hearings. Not the best option normally, but if he will face jail time over this, it may be the lesser of two evils.

I understand your desire to want to help, but you are not an attorney, so your options to assist him are limited.

The best you may be able to do is provide the transportation he needs to the hearing and coach him on the way without crossing the UPL line.

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He has admitted to the debt. He has also told the court he is unemployed and fighting a social security claim. He has major back problems.

The Plaintiff calls him back into court every couple of weeks asking him when he is going to pay.

We went to court this am and I went in with him and explained to the judge that I am not a lawyer but I am doing my intern right now.I explained that he can not pay a lawyer and he agrees that he has no problem with me helping him.

The judge allowed me to be their but I was informed that I could only listen and not act in the capacity of an attorney.

The judge also told him that since he has a learning disability that I made the court aware of, which the did not know until now, that the judge would explain everything so he can understand what is going on.

He explained that because of his situation he can not properly defend himself due to transportation issues and that these issues will sooner or later cause the court to enter an unfair order for contempt.

HE did really well with the judge and the judge set the case aside for further review, and told him more than likely he would agree to a change of venue.

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