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Question about a counter claim.


mopman64
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I wrote in a prior post about being sued by Portfoilo. 

 

I am going to fight it. 

 

It's about a 2k amount. 

 

They have a FDCPA violation on the court papers which I plan to counter claim. 

 

Would an FDCPA violation be considered a counter claim or would I just bring it up to the judge in court.

 

I am hoping that if I file the counter claim about the FDCPA violation that they might just drop the case before it gets to court.

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When the account was opened, did you live in that county?   The reason I ask is because the FDCPA states that a debt collector can file suit where the consumer signed the contract.  In the case of a credit card, that would be where you living when you opened the account.

 

Also, were they ever aware of your current address?

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It could still be improper venue based on local statutes, but that is not necessarily a violation.  As a matter of fact, I'm pretty sure it's not.  They can say bonafide error.  

 

If the account was opened in the county where he was sued, I was thinking bona fide error, as well.

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Hi all, 

 

I don't like to give much info as I don't know who is watching.

 

"When the account was opened, did you live in that county?"  Answer NO.

 

I will try to explain.  

 

I live in Camden County NJ, always have.  The next county over is Atlantic County.  We both share the same post office zip code.  There is the same street name as mine in both county's the only thing is my street # does not exists on the one in Atlantic County.  If you go to google maps and type in my st address it will take you to Atlantic County in the middle of a blueberry field.

 

You should see what I go through with FedEx, the mail knows who to deliver to because the mail guys live local, so they see the name and it's: ok, he lives here.  

 

So I do think this is a violation on their part as to not research enough.  

 

And no the acct was opened at my home in Camden County via the phone.

 

Thanks again, I am so nervous, I don't know if I should fight this or if I am just wasting my time.  My heart says one thing but my gut say another.  

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 "Holton v. Nestico," (M.D. Pa. 2012),  Nestico signed her contract in Luzerne county.  She was living in Carbon county when she was sued by Nestico in Columbia county.  Before she defaulted, she had been making payments in Columbia county. The court found Nestico had violated 15 USC 1692i.  Quoting from "Martinez V. Albuquerque Collection Serv.," (D.N.M. 1994):

 

"Once the debt collector sues in the wrong venue, the consumer must defend and the damage is done. See "Oglesby v. Roche," (N.D. Ill. 1993). (holding that a violation of 1692i is in the nature of a statutory tort which is complete upon the filing of an action in an improper venue").

 

The court further held that only clerical errors fall within the bona fide error exception.  Citing "Jerman v. Carlisle," (S.Ct. 2010),

it held that mistakes of law are not bona fide errors.

 

Phillip Stern of New Jersey is a superb consumer lawyer.  Contact him about your case. 

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I received complaint on 3/12.

 

I have  not filed answers yet.

 

I plan to do this pro se.

 

So from what I read from Debtzapper above is that it is a violation?  They did not take the time to find out my correct address they just assuumed.  I mean all they had to do was look at a map.

 

Alos, when I do my answer to complaint, can I just say "deny" for each answer or do I need to go into detail?

 

Thanks

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I used the info from this board to answer my complaint. I just adjusted some of the verbage to address my particular situation. Good luck! You will have to go to Atlantic County courthouse to file answer. I know it is inconvenient, but they are very nice.

You can get the paperwork online at NJ Superior court. Go to self help section for special civil. You have to print out the directions and answer form. Attach your written answer to the forms and follow the instructions regarding how many copies etc. It is very thorough. I think it is $35. If you have any questions, you can PM me.

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