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Being Sued by Midland Funding in Wrong County Texas


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I am being sued by Midland Funding.  I was served on May 19th and I have 14 days in which to respond to the court.  Based on everything I have found on this forum, I have drafted my answer.  However, the petition was filed in the wrong Texas county.  The county court website states:

 

 General Rule. Generally, a defendant in a small claims case as described in Rule 500.3(a)

or a debt claim case as described in Rule 500.3 is entitled to be sued in one of the

following venues:

(I) the county and precinct where the defendant resides;

2) the county and precinct where the incident, or the majority of incidents, that gave rise

to the claim occurred;

(3) the county and precinct where the contract or agreement, if any, that gave rise to the

claim was to be performed; or

(4) the county and precinct where the property is located, in a suit to recover personal

property.

 

None these are applicable to the situation.  Do I go ahead and answer the petition as if I do live in that county or is there something else I need to do?

 

Thanks

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@michelleandwade

 

I would contact a consumer attorney.   If the attorney is a debt collection attorney (probably is), then he violated the FDCPA by filing suit in the wrong county.  Since Midland is his client and also a debt collector, they are liable also.   Depending on the amount for which you're being sued, the violation could make the lawsuit go away.

 

http://www.consumeradvocates.org/find-attorney

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I spoke with my attorney and he suggested calling the Midland's attorney and offering to settle it.  The total is only $2600 or so.  He told me that for such a small amount the legal fees would not really be worth it.  HE did not say anything when I mentioned it was filed in the wrong county.

 

However, I did find this:

 

RULE 502.4. VENUE- WHERE A LAWSUIT MAY BE BROUGHT

(d) Motion to Transfer Venue. If a plaintiff files suit in an improper venue, a defendant may challenge the venue selected by filing a motion to transfer venue. The motion must be filed before trial, no later than 21 days after the day the defendant's answer is filed, and must contain a sworn statement that the venue chosen by the plaintiff is improper and a specific county and precinct of proper venue to which transfer is sought. If the defendant fails to name a county and precinct, the court must instruct the defendant to do so and allow the defendant 7 days to cure the defect. If the defendant fails to correct the defect, the motion will be denied, and the case will proceed in the county and precinct where it was originally filed.

 

(I) Procedure.

(A) Judge to Set Hearing. If a defendant files a motion to transfer venue, the judge must set a hearing on the motion.

( B) Response. A plaintiff may file a response to a defendant's motion to transfer venue.

© Hearing. The parties may present evidence at the hearing. A witness may testify at a hearing, either in person or, with permission of the court, by means of telephone or an electronic communication system.

(D) Judge's Decision. If the motion is granted, the judge must sign an order designating the court to which the case will be transferred. If the motion is denied, the case will be heard in the court in which the plaintiff initially filed suit.

(E) Review. Motions for rehearing and interlocutory appeals of the judge's ruling on venue are not permitted.

(F) Time for Trial of the Case. No trial may be held until at least the 14th day after the judge's ruling on the motion to transfer venue.

(G) Order. An order granting a motion to transfer venue must state the reason for the transfer and the name of the court to which the transfer is made. When such an order of transfer is made, the judge who issued the order must immediately make out a true and correct transcript of all the entries made on the docket in the case, certify the transcript, and send the transcript, with a certified copy of the bill of costs and the original papers in the case, to the court in the precinct to which the case has been transferred. The court receiving the case must then notify the plaintiff that the case has been received and, if the case is transferred to a different county, that the plaintiff has 1 4 days after receiving the notice to pay the filing fee in the new court, or file a sworn statement of inability to pay. The plaintiff is not entitled to a refund of any fees already paid. Failure to pay the fee or file a sworn statement of inability to pay will result in dismissal of the case without prejudice.

 

 

The petition was filed on April 9th and I was served May 19th so it's not like the courts are moving very quickly, but they want my response in 14 days or less.  I am considering taking my answer down there in person on Monday.

 

I am going back and forth on whether to request a settlement or not, but I do know that I need to respond to the petition regardless of whether I eventually settle or not. 

 

I know there's a lot going on in this post, but that's kind of how my mind is right now..all over the place.

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@michelleandwade

 

Don't settle without speaking to a GOOD EXPERIENCED lawyer.  Contact Jerry Jarzombek (Google his name.) He's one of the best in TX and the country. He is very busy, though.  If he can't take your case, contact at least 3 other lawyers.  You can just google "FDCPA lawyer texas" and you will get plenty of hits.

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  • 2 weeks later...

Although I had already provided an answer to the court, I went ahead and met with an attorney yesterday.  You are correct in that there is a violation due to it being in the wrong county.  The good news is that it will cost Midland some money and hopefully the problem itself will end up going away.  There may also be a problem with the process server depending on what he files with the court since I wasn't the person physically served.  It is a wait and see approach right now. 

 

Thanks for the recommendation @debtzapper!

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