Civil Procedure Law of New York please interpret

[taste1]

I am in the process of filing a counter claim against JDB, part of my claim includes improper venue.  The issue is that my town is divided into two counties (eg.county A and I live in county A but the case was started in county B.  

 

The New york civil law states:  (f) Consumer credit transaction. In an action arising out of a
consumer credit transaction where a purchaser, borrower or debtor is a
defendant, the place of trial shall be the residence of a defendant, if
one resides within the state or the county where such transaction took
place, if it is within the state, or, in other cases, as set forth in
subdivision (a)

.

This is subdivision (a): § 503. Venue based on residence. (a) Generally. Except where otherwise
prescribed by law, the place of trial shall be in the county in which
one of the parties resided when it was commenced; or, if none of the
parties then resided in the state, in any county designated by the
plaintiff. A party resident in more than one county shall be deemed a
resident of each such county.

 

Can someone please interpret this for me? Do I have any legal grounds to claim improper venue? Does the FDCPA rules of venue supersedes local rules or is that only in Federal court?

 

Thank you all for your help!

 

 

 

[Anon Amos]

You should be able to file a motion for change of venue (if they have not filed suit in the county you live in); but I don't know if you have an actual counter claim against them (unless there is something in the FDCPA rules that works with this). You can use FDCPA rules with your case. The FDCPA rules coincide with your rules rather than supersede them.

I'm sure there is something in the FDCPA rules on venue; so maybe you do have a counterclaim there somewhere. Somebody will probably chime in with the FDCPA information.

But you do have legal grounds to claim improper venue (since they are supposed to sue you in your county). And for that reason you could also claim the court lacks jurisdiction.

[Guest usctrojanalum]

Improper venue is a minor technical defect, which most of the time can be resolved via motion.... especially if the venues are located within the same State or Adjoining Counties.

[debtzapper]

Here is a NY case where the debt collector violated 15 USC 1692i of the FDCPA  just by threatening to sue in the wrong county.  If they sued you in the wrong county, they violated the law and are liable. 

 

http://scholar.google.com/scholar_case?case=10291077731686871390&q=fdcpa+wrong+venue+county&hl=en&as_sdt=40006&as_ylo=2009

[debtzapper]

http://scholar.google.com/scholar_case?case=13710297913000158577&q=fdcpa+wrong+venue+county&hl=en&as_sdt=40006&as_ylo=2009

 

 

Also, this is a 2011 case from the Second Circuit Court of Appeals, your circuit.  Here the court discussed New York's Uniform Court Act and conclued that Hess had stated a valid claim when she was sued by a debt collector in the wrong judicial district.

Even though Hess resided in the county in which she was sued, she did not reside in the judicial district in which she was sued based upon the court's analysis of the NY Uniform Court Act.

 

Note also what the court said about the debt collector re-fililng its case.

 

 

C & S also asserts that the dismissal here should not give rise to a FDCPA violation because Section 213 provides that actions dismissed thereunder may be refiled in the appropriate court. UCCA § 213(d) (citing CPLR § 205). This is significant, according to C & S, because if a debt collection case is dismissed under Section 213 based on the consumer's non-residency, the debt collector will either abandon the case or refile in a jurisdiction that is convenient for the consumer. We do not agree. It is irrelevant to the FDCPA whether state law sets forth a procedure for refiling actions that are dismissed based on defective venue; indeed, we would expect that such dismissals would in the ordinary course be without prejudice, as venue relates to the convenience of the parties rather than the validity of the claim. Cf. Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir.1963). The ability of the debt collector to refile the suit in fact contributes to the threat of "forum abuse" that inspired Congress to enact 15 U.S.C. § 1692i. Absent § 1692i, debt collectors might have an incentive to bring suits against consumers in distant and inconvenient courts in the hopes of obtaining a default judgment, especially if they face no risk of losing their ability to pursue the suit in the event the consumer were to appear and seek dismissal or transfer because of improper venue. And as demonstrated by the facts alleged in Hess's complaint, it is not without cost for a consumer to obtain dismissal of a debt collection suit on the basis that it was brought in the incorrect court.

[taste1]

Thanks, I will proceed with improper venue and post my motion online for critiquing . 

[debtzapper]

http://www.govcollect.org/files/New_York_Debt_Collection.pdf

 

 

You didn't say if you were a NYC resident. If you are, NYC has its own debt collection law, which debt collectors must comply with. See page 4 of this pdf Summary for more details.

[taste1]

http://www.govcollect.org/files/New_York_Debt_Collection.pdf

 

 

You didn't say if you were a NYC resident. If you are, NYC has its own debt collection law, which debt collectors must comply with. See page 4 of this pdf Summary for more details.

I am a Suffolk county resident and was at the same resident during the time of the alleged allegation but I am being sued in Nassau county.

[taste1]

Can anyone find a recent case law in New York where the court ruled against the debt collector for improper venue? I'm  having a hard time. 

I found this case Midland Funding v. Giraldo. but this is a case where the defendant is a residence of France not of another county within the same state . 

I would like to be very thorough because I am in a debt collector favored court.

Thanks

[Anon Amos]

Can anyone find a recent case law in New York where the court ruled against the debt collector for improper venue? I'm  having a hard time. 

I found this case Midland Funding v. Giraldo. but this is a case where the defendant is a residence of France not of another county within the same state . 

I would like to be very thorough because I am in a debt collector favored court.

Thanks

It does not have to be a RECENT case (if it does in fact exist). You must have a law library close by (probably with online case law search).

[debtzapper]

I gave you two cases, see No 4 and 5.  They don't need to be more recent.  That is still good law. Read them carefully.  Also, go to www.pacer.gov and get an account.  Then look up the actual cases, and read the pleadings.  The cost is 10 cents a page, but if you incur no more than $15 in a quarter, it's free.

[debtzapper]

Here is a recent case, albeit from another fed dist crt, but you can still cite it, since it involves wrong venue

 

http://scholar.google.com/scholar_case?case=286201414163571851&q=fdcpa+wrong+venue+county&hl=en&as_sdt=40006&as_ylo=2009

[debtzapper]

Can anyone find a recent case law in New York where the court ruled against the debt collector for improper venue? I'm  having a hard time. 

I found this case Midland Funding v. Giraldo. but this is a case where the defendant is a residence of France not of another county within the same state . 

I would like to be very thorough because I am in a debt collector favored court.

Thanks

 

 

I see what you mean.  You want NY state cases about a violation of 1692i, wrong venue.   Although state courts can and do rule on the FDCPA,  that is more properly the domain of fed courts, and most FDCPA cases are heard in fed crt.  Nevertheless, state courts (including  NY) nearly always give deference to fed crts in interpreting the FDCPA, which is a fed law. So, the fed cases you have, including two from NY fed dist crts, should put you in a good position.

[debtzapper]

http://decisions.courts.state.ny.us/search/query3.asp

 

 

Type in FDCPA and you can read NY trial court cases in which the FDCPA was asserted.  Glancing through, I noticed many FDCPA counterclaims were dismissed because, as the court correctly noted, the FDCPA does not apply to original creditors.