Jump to content

Court REPLIED to my letter


Recommended Posts

I sent this letter to the courts:

COMMONWEALTH OF MASSACHUSETTS

WORCESTER, SS Docket No. 8888

FIA CARD SERVICES, N.A

Name of Plaintiff

v. DEFENDANT’S ANSWERS

888888

Name of Defendant

1. Admitted upon information and belief.

2. Denies. Defendant currently resides in Los Angeles, CA. The defendant uses P.O BOX 5667, City , CA as the main mailing address because the defendant has moved several times in the state of California. Does not have a stable address yet.

3. Plaintiff has failed to provide documentation to support the allegation. Defendant has insufficient information to admit or deny and, therefore, denies.

WHEREFORE, The defendant requests that the court dismiss this complaint, with prejudice.

Respectfully submitted,

______________________________

address

p.o box

They replied with a letter to my old address and ignored my new address. They are ordering me to court even though I live 3000 miles away. This is some sort of resolution management meeting they are ordering me to appear. In this meeting they want to RESOLVE the issue, determine the readiness of a possible trial, offer early intervention to alternative dispute resolution. I am confused. I can't attend this court date - why wouldn't they change venues? could i request that?

Here is my previous POST...

http://www.creditinfocenter.com/forums/there-lawyer-house/311941-my-answer-complain-please-review.html

Edited by Tvwriter
Link to comment
Share on other sites

Did you serve your answer on the other side. Also, you have your motion to dismiss in your answer. While it might not be procedurally incorrect, I don't know, it would be here, you need to file a more detailed motion to dismiss.

That answer is fine to lay the foundation for your arguments. Now you need a detailed motion to dismiss. It needs to state laws, precedent, and a time line of where you lived/are living.

You just saying you don't live in the jurisdicition is enough to get a motion to dismiss heard. However, if all one had to do was get a P.O. Box in another state and then just say they live in a different state, everybody would do that.

I believe you, don't get me wrong, but you just saying I have a P.O. Box in CA and don't have a stable residence, is not going to get this thing dismissed. You've made the allegation, now prove it. You do that with a motion to dismiss.

Link to comment
Share on other sites

i understand, but i do live in ca. im not going to fly to mass for this. so i gotta figure this out.

And I understand and I believe you. However, that is not the way court works. You can say it a million times over, however, you have to convince a court where you live.

Furthermore, you have to show how you living in California makes the court in MASS lack jurisdiction (which it probably would). However, there is more to if the court has jurisdiction than simply where the parties live.

I'm in Arkansas and sued a collection agency in Michigan. The Arkansas court had jurisdiction. I just sued another collection agency in Kansas on Monday. The Arkansas court again has jurisdiction.

There is not a lot to figure out. You have to file a motion to dismiss, based on facts, not just your statement that you live in California because you have a P.O. Box in California.

Link to comment
Share on other sites

And I understand and I believe you. However, that is not the way court works. You can say it a million times over, however, you have to convince a court where you live.

Furthermore, you have to show how you living in California makes the court in MASS lack jurisdiction (which it probably would). However, there is more to if the court has jurisdiction than simply where the parties live.

I'm in Arkansas and sued a collection agency in Michigan. The Arkansas court had jurisdiction. I just sued another collection agency in Kansas on Monday. The Arkansas court again has jurisdiction.

There is not a lot to figure out. You have to file a motion to dismiss, based on facts, not just your statement that you live in California because you have a P.O. Box in California.

So I should file a motion --sending them my california drivers' license or something? i thought about calling them and settling cause i really dont want to go through this.

Link to comment
Share on other sites

That would be one part of it. However, the main thing is you have to show the court why they don't have jurisdiction.

You living in another state most likely is one such argument, but by far not the only argument. You also have to do a motion, but by the rules of procedure. You have to serve that motion (send) on the other side, then they get a chance to respond. Obviously they will argue the court does have jurisdiction. Then the judge will make a ruling.

It's not a quick and simple process. It's by far not complicated by any stretch, but involves a ton more than saying you live in another state and sending a copy of an ID. Also, keep in mind, there is no guarantee the court does not have jurisdiction over you. They probably don't, but there are a lot of other factors.

If you don't go about this procedurally correct, you can be 100% right and still lose. The court has already sent that message to you loud and clear when they just ignored your argument that you put in the answer. The court is not going to consider anything other than a motion by the rules of procedure. They've shown you that by just ignoring you and sending you a court date. It's obvious they read your arguement, they responded.

Link to comment
Share on other sites

i called the courts right now - the civil department and those folks are CLUELESS. I asked about the change of venue form and they said i have to go to the court to get a form. I asked if i can get it online and they are like "i don't know." i said "i live in another state" and she's like "i dont know you have to come in for the change of venue motion.":roll:

Link to comment
Share on other sites

i called the courts right now - the civil department and those folks are CLUELESS. I asked about the change of venue form and they said i have to go to the court to get a form. I asked if i can get it online and they are like "i don't know." i said "i live in another state" and she's like "i dont know you have to come in for the change of venue motion.":roll:

They have no jurisdiction over you if you are in California. I'd just file a motion letting the court know they have no jurisdiction over you. Motion to Dismiss for lack of personal and subject matter jurisdiction and make sure the Plaintiff gets a copy.

Link to comment
Share on other sites

You don't have to go in there, but yes, as I said, you have to file a motion. The clerks are not going to know about this stuff. That is their stock answer. Actually, they usually say they can't give legal advice or tell you to call an atty.

Just file the motion, you don't have to have the form from the court. Just use the proper outline, which should be easy to find online, and then draft your own.

Link to comment
Share on other sites

They have no jurisdiction over you if you are in California. I'd just file a motion letting the court know they have no jurisdiction over you. Motion to Dismiss for lack of personal and subject matter jurisdiction and make sure the Plaintiff gets a copy.

in that motion i would include proof of my residence with a copy of bills? Id? etc, etc.

Link to comment
Share on other sites

You will need to document that you live in California... lease, utility bills, DL, etc. This will all need to be attached to your motion to dismiss....

I had a JDB sue me in California, even though I live in AZ. I had to file a motion to dismiss - and attach all that documentation to the motion. The case did get dismissed, but the other side did put up a fight.

Link to comment
Share on other sites

You will need to document that you live in California... lease, utility bills, DL, etc. This will all need to be attached to your motion to dismiss....

I had a JDB sue me in California, even though I live in AZ. I had to file a motion to dismiss - and attach all that documentation to the motion. The case did get dismissed, but the other side did put up a fight.

And as I recall, that turned out rather poorly for them when all the dust settled.

Link to comment
Share on other sites

I think this might help. This is from the FDCPA:

15 USC Sec. 1692i. Legal actions by debt collectors

(a) Venue

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.

Since this isn't about property, then (2) applies. And since we all know that credit cards are opened these days without signing a contract, then (B) applies, and they must sue you in county where you live.

So you cite this, and attach your proof of residence, and move for a dismissal.

Good luck.

DH

Edited by debtorshusband
Link to comment
Share on other sites

I think this might help. This is from the FDCPA:

15 USC Sec. 1692i. Legal actions by debt collectors

(a) Venue

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.

Since this isn't about property, then (2) applies. And since we all know that credit cards are opened these days without signing a contract, then (B) applies, and they must sue you in county where you live.

So you cite this, and attach your proof of residence, and move for a dismissal.

Good luck.

DH

THANK YOU. This is great:-)

Link to comment
Share on other sites

Your handle is "TVWriter". This leads me to believe you live in either the Los Angeles or San Francisco areas.

The Los Angeles Law Library has a huge rack of Massachusetts benchbooks for you to use. San Francisco has UCSF, the San Fran Law Library, and myriad law schools with law libraries free for you to use. Just pay for copies.

Go to the law library and ask the librarian to point you toward some Massachusetts benchbooks with "Forms of Pleading and Practice" in them.

Once you got that benchbook, look up a Motion to Dismiss (for lack of venue). You will ask to dismiss this case under the FDCPA and cite the post above with the law. Your goal is to get this case dismissed for lack of venue.

Also in that benchbook, look up forms that specifically address changes of venue. File that motion as well WITH your motion to dismiss (on separate pleading paper).

Execute service of process of BOTH of these documents with both the plaintiff and the court within the time alloted by law/codes of civil procedure.

Link to comment
Share on other sites

Guest usctrojanalum

Did you default on the credit card in Mass or CA? If you defaulted on the card in MA, the venue would be proper and you are out of luck and should look to settle it off. If you defaulted on the card in CA you should be successful in getting this dropped in MA.

A lot of people itt giving out a ton of incorrect information and need to be really careful.

Link to comment
Share on other sites

Power of a court to adjudicate cases and issue orders.

Territory within which a court or government agency may properly exercise its power.See, e.g. Ruhrgas AG v. Marathon Oil Co. et al., 526 U.S. 574 (1999).

Subject matter jurisdiction is the court's authority to decide the issue in controversy such as a contracts issue, or a civil rights issue. State courts have general jurisdiction, meaning that they can hear any controversy except those prohibited by state law (some states, for example, deny subject matter jurisdiction for a case that does not involve state citizens and did not take place in the state) and those allocated to federal courts of exclusive jurisdiction such as bankruptcy issues (see 28 U.S.C. § 1334). Federal courts have limited jurisdiction in that they can only hear cases that fall both within the scope defined by the Constitution in Article III Section 2 and Congressional statutes (See 28 U.S.C. §1251, §1253, §1331, §1332).

Territorial jurisdiction is the court's power to bind the parties to the action. This law determines the scope of federal and state court power. State court territorial jurisdiction is determined by the Due Process Clause of the Constitution's Fourteenth Amendment and the federal court territorial jurisdiction is determined by the Due Process Clause of the Constitution's Fifth Amendment.

Another form of jurisdiction is appellate jurisdiction (the power of one court to correct the errors of another, lower court).

There is also concurrent jurisdiction (the notion that two courts might share the power to hear cases of the same type, arising in the same place)

Plus diversity jurisdiction (the power of Federal courts to hear cases in which the parties are from different states). An example showing the interplay of diversity jurisdiction with subject-matter jurisdiction is Grupo Dataflux v. Atlas Global Group, L. P. (02-1689), 541 U.S. 567 (2004)

Nolo's plain English law dictionary describes jurisdiction in this manner.

The authority of a court to hear and decide a case. To make a legally valid decision in a case, a court must have both "subject matter jurisdiction" (power to hear the type of case in question, which is granted by the state legislatures and Congress) and "personal jurisdiction" (power to make a decision affecting the parties involved in the lawsuit, which a court gets as a result of the parties' actions). For example, a state court's subject matter jurisdiction includes the civil and criminal laws passed by its own state, but doesn't include Federal disputes or laws, these are heard only in Federal courts.

No court can hear or decide a case unless the parties agree to be there or live in the state (or federal district) where the court sits, or have enough contacts with the state or district that it's fair to make them answer to that court. Doing business in a state, owning property there, or driving on its highways will usually be enough to allow the court to hear your case.

The term "jurisdiction" is also commonly used to define the amount of money a court has the power to award. For example, small claims courts have jurisdiction only to hear cases up to a relatively low monetary amount -- depending on the state, typically in the range of $2,000 to $10,000. If a court doesn't have personal jurisdiction over all the parties and the subject matter involved, it "lacks jurisdiction," which means it doesn't have the power to render a decision.

'A court may exercise either general or specific jurisdiction over a nonresident defendant.' Sher v. Johnson, 911 F.2d 1357, 61 (9th Cir.'90).

Specific jurisdiction, the type at issue here, is appropriate when the following requirements are met: '(1) The nonresident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.' Core-Vent Corp. v. Nobel..., 11 F.3d 1482, 85 (9th Cir.'93) quoting Lake v. Lake,

In determining whether jurisdiction would comport with 'fair play and substantial justice,' courts balance the following seven factors: (1) the extent of the defendants' purposeful interjection into the forum state's affairs; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendants' state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Core-Vent at 1487-88

Hope that helps some.

Edited by BTO429
Link to comment
Share on other sites

Did you default on the credit card in Mass or CA? If you defaulted on the card in MA, the venue would be proper and you are out of luck and should look to settle it off. If you defaulted on the card in CA you should be successful in getting this dropped in MA.

Agree 100%

It's not a quick and simple process. It's by far not complicated by any stretch, but involves a ton more than saying you live in another state and sending a copy of an ID. Also, keep in mind, there is no guarantee the court does not have jurisdiction over you. They probably don't, but there are a lot of other factors.
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.