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Motion on Lack of Jurisdiction


nvg
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I suddenly received a wage garnishment from an attorney representing Capital One, I not once received any letters or notices nor was I served teh orginal judgment. The first I had seen was when my employer sent me the paperwork on the garnishment. I immediatley requested a hearing, which I attended and was granted a 2 week stay on the garnishment to allow me to get my paperwork in order. After playing Erin Brocovich, I find out the orginal judgement was filed in Justice Court, but the Wage Garnishment was filed in Superior Court. AZ Superior Court is for cases $10,000 or more or $1000 in real property excluding all interest and penalties. The judgement is for $2500. I have called every state office including Supreme Court and the State Legislative of AZ to ask why Superior Court would take this case to begin with. I went from supervisors to managers, all have said, it makes no sense. I want to file a motion to dimiss based on lack of jurisdication but I dont know when or how to do this, do I have to wait for my next hearing or can I do it prior? Any help would be appreciated.

Edited by nvg
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Guest usctrojanalum

After reading this website.. Superior Court it States that Superior Court is a general jurisdiction court. What that means, is that they can hear any type of case, regarding any amount, for any type of cause of action. At least that what I learned general jurisdiction was back in college.

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It has a laundry lists of cases it can handle, from civil to criminal, but also this at the end.

special cases and proceedings not otherwise provided for, and such other jurisdiction as may be provided by law.

It's a basic catch all. I agree, it does say general jurisdiction.

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Thanks for the clarification and help. here is where I am confused. I found out at the hearing with Superior Court that judgment is in Justice Court and the judge did tell me, he could not rule on a case outside of his jursidcation so he would not accept any documentation that shows the debt is not mine and he only gave me two weeks to figure out, I went to Justice Court, they were very helpful and I filed a motion to set aside or vacate the judgment, but Justice Court stated that could take up to three to four weeks to process, so when I have to go back on the 25th I wont have an answer yet and the judge may renistate the wage garnishment. I have a letter from Capital One that states there is not any account in the past 10 years that matches my social security number, but the judge wouldnt accept. And actually he is a commissioner not a judge.

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Yes, my indenty was stolen in 2006, I also tried to introduce the police report to that effect, as well as the paper work from Bank of America Fraud department as my checking account was hit hard, BOA is actually who caught it, I was traveling. The commissioner is not very friendly, he orginally denied my motion to stop the wage garnishment, but I argued that there is more than one Nicole Garcia in the State of Arizona and that alone is enough to reasonable doubt to at least allow me some time to prove so. So he agreed to 2 weeks. I am pretty sure on the 25th he will reinstate the garnishment and I will never get my money back. Last question, since he is a commissioner and not a judge do I have a legal right to file a motion for revisitation and while I am waiting for that, will the stay on the wage garnishment stay into effect or will the commissioner rule that garnishment begins while I wait for a hearing with the judge? The commissioner also told me I had to contact the attorney for the plantiff, who was on the phone, I have called 7 times, left three voicemails, sent a certified letter, and a email with delivery confirmation and the plantiff's attorney will not call me back.

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Also create an Affidavit documenting your repeated attempts to contact counsel. They are just stalling in the hopes that after 2 weeks they will get the garnishment reinstated. You could ask for an order compelling counsel to meet and confer in the interest of resolving the matter, that would not be a motion they want the judge to review.

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Thank you, I am trying to avoid hiring a lawyer, to fight something that isnt mine, so I appreciate your help. I have done nothing but researched and read tons of stuff the past week, but feel I am still do not know enough as I am not an expert like you guys.

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Is the order requesting counsel to meet something I file in the court? I did request a call back to resolve the matter, I sent it via email, and the plantiff's lawyer did send the read receipt back, but did not call. When I filed a motion in Justice Court I was told I had to serve him because the judgement is from 2009. So he was served. I have learned the judgement was granted in January of 2010 but the Plantiff's attorney waited until December of 2011 to file the Writ of Garnishments which was to allow him to collect 24% interest during that period of time.

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Thank You I will send it CMRR today, Tried faxing, it is has been busy for 5 days, I called requesting another fax line, received a reception who told me it is working just fine, I have the transmission reports where it shows busy each time I have tried to send it.

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Interesting, the three ladies at Justice court stated in "it makes no sense that writ of ganishment is filed in Superior Court it is our case" then they called a supervisor who said, the lawyer filed a request to transfer the writ of garnishment to Superior court, but the orginal judgement remains in Justice Court.

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How did they get this judgment in the frst place? You must have been sued and they got a default judgment because you did not show up in court. It could be an identity mixup, that's for you to resolve. Send the opposing lawyer another letter. Tell him you have attempted to contact him numerous times. If he does not respond, you will file a complaint with the bar association. Also, if this turns out that he sued the wrong person, you will sue him for terminal stupidity and messing up your life. Bet he calls you then.

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Correct, he got the judgement because I didnt know about it and therfore didnt fight it, when I got the paperwork from Justice court,he filed papers that said he served me at my address(which is old) and that my cousins, told them, I moved back to Mexico with my 10 year old son. I am not from Mexico, I have no cousins in the state of Arizona and I do not have any children. :(

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Thank you 1Step, I added that in the motion to vacate but havent heard anything. It is like a big massive soap opera, every day brings another new bizarre twist. I am not sure if I can fight it without a lawyer, I am feeling a bit defeated.

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Get a copy of the case file...you'll want to see how you were "served." It will also give you the name of the person to sue for fraud.

In AZ, process servers carry a $15,000 bond. File suit against the process server and I'm sure you'll be hearing from the surety as to how you want to settle.

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Thank you, I have found out the processor's company name and paperwork, and plan on filing the proper paperwork. I sent another email, and fax to the plantiff's attorney he responded in an email with. "We have filed a response to your motion to set aside judgment". I have not seen the motion but I am confident he did not dismiss the case, so do I continue to ask him for the orginal docs as per the request of commissioner Vatz. My hearing is on Wednesday, I do not know what direction to go. Revistation, Lack of Jurisdication?

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They probably sent their reply via snail mail...so look for it in a couple of days.

Filing the process server will be easy, but you will need to get a hold of whoever was there at that address and have them write out affidavits describing their encounter. Generally, the more - the better.

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Here is where, I know I am 100% right that encounter never took place, I verified it last night, there was never an ecounter, they are saying the person that owns the house as a rental is my cousin and told them what they stated on the paperwork. She is not. I called her and she said absolutely no such encounter or conversation ever occurred and she would be happy to look back through meetings and phone records and write a statement as to where she was on the day they apparently had the encounter and she stated she doesnt even have keys to that property and has maybe been on the property a total of 5 times since she's owned it for the past 5 years.

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