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Amex suit filed in wrong county


POK
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My disabled husband has been sued AGAIN by a law firm out of Arkansas in Oklahoma.  The first suit was filed in OK county where we did not reside.  Now he is being sued in Pontotoc county, where we don't reside.  We filed an answer on the first one stating an affirmative defense of separation of debt, no valid income to garnish (he receives ssdisability), nand improper service.  We never heard anything past that and Now he was served with a summons from October with 35 days to answer...well thats out the window....the summons is actuall from 2 weeks ago and the cover sheet isn't even filled out.  He recieved it at 730pm cst TODAY 12-30-2016.  It is also 2 months from being SOL as of Feb 2017 (i think)  Since they cannot touch his ss disability pay how do we file?  What do we file?? And how do we find out if there was a judgement on the first filing??  Please help......

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37 minutes ago, POK said:

My disabled husband has been sued AGAIN by a law firm out of Arkansas in Oklahoma.  The first suit was filed in OK county where we did not reside.  Now he is being sued in Pontotoc county, where we don't reside.  We filed an answer on the first one stating an affirmative defense of separation of debt, no valid income to garnish (he receives ssdisability), nand improper service.  We never heard anything past that and Now he was served with a summons from October with 35 days to answer...well thats out the window....the summons is actuall from 2 weeks ago and the cover sheet isn't even filled out.  He recieved it at 730pm cst TODAY 12-30-2016.  It is also 2 months from being SOL as of Feb 2017 (i think)  Since they cannot touch his ss disability pay how do we file?  What do we file?? And how do we find out if there was a judgement on the first filing??  Please help......

Who is suing?  The original creditor or a debt buyer?

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14 hours ago, POK said:

My disabled husband has been sued AGAIN by a law firm out of Arkansas in Oklahoma.  The first suit was filed in OK county where we did not reside.  Now he is being sued in Pontotoc county, where we don't reside.  We filed an answer on the first one stating an affirmative defense of separation of debt, no valid income to garnish (he receives ssdisability), nand improper service.  We never heard anything past that and Now he was served with a summons from October with 35 days to answer...well thats out the window....the summons is actuall from 2 weeks ago and the cover sheet isn't even filled out.  He recieved it at 730pm cst TODAY 12-30-2016.  It is also 2 months from being SOL as of Feb 2017 (i think)  Since they cannot touch his ss disability pay how do we file?  What do we file?? And how do we find out if there was a judgement on the first filing??  Please help......

OK, first, you can check with OK county court clerk to see about the result of the first one.  They will be able to tell you what happened on that.  If I had to guess, I would say that the party suing your husband voluntarily dismissed that one, but that's just a guess.

As far as this new one, can you clarify some things?  You said that the summons was from October, with 35 days to answer.  But then you said the summons is actually from 2 weeks ago.   Not sure what that means, can you explain?  I don't think that there's a problem with the summons as far as time to answer, because that time to answer begins once you are served, not when the summons is issued.  So, it could have been issued in October and they could have just gotten around to serving you now.  Some states might have a set amount of time for them to have you served, I'm not sure about OK, but you might check to see.  Either way, the first issue here is not the time, it's that they sued you in the wrong county again.  You mentioned improper service being included in your first answer, but this is not improper service--it's improper venue.  And you must assert this in any answer that you respond with, because in OK state law, the court has jurisdiction over any matter within that state.  The difference is that you are dealing with a federal law--FDCPA--that requires them to sue you either where the debt originated, or where you currently reside.  Which also brings me to echoing the same question that BV80 asked you--who is suing you?  If it's an original creditor, then FDCPA does not apply.

 

You stated that you used some affirmative defenses.  Separation of debt is not going to get you very far, because it does not remove you from the obligation in question.  If you get divorced, and the divorce court rules that a particular joint debt shall be paid by your ex, the creditor can still come after you for it.  Your remedy then would be to go after your ex for the money.  Also, 'no valid income to garnish' is not an affirmative defense either.  Garnishing wages is only one method that can be used to collect on a judgment.  It's not an affirmative defense against being sued for that debt.  Many debt collectors will not waste their time with a consumer who has no such income--the so-called "judgment proof" person.  But some still will, depending on the circumstances.  An affirmative defense is something that should prevent the lawsuit from proceeding, such as the debt being time-barred.  Being on disability and having no income that can be garnished is not something that legally speaking should block the lawsuit.  It only makes collecting on that judgment harder for them. 

Regarding the actual summons that you received this time, I took these from OK Rules of Civil Procedure.....You said that the cover page was not filled out, but is the information present that is stated in those quotes? 

Quote

Summons: Form.

  • The summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise, the plaintiff’s address, and the time within which these rules require the defendant to appear and defend, and shall notify the defendant that in case of failure to appear, judgment by default will be rendered against the defendant for the relief demanded in the petition.
Quote

Summons and Petition.

The summons and petition shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. The failure to serve a copy of the petition with the summons is not a ground for dismissal for insufficiency of service of process, but on motion of the party served, the court may extend the time to answer or otherwise plead. If a summons and petition are served by personal delivery, the person serving the summons shall state on the copy that is left with the person served the date that service is made. This provision is not jurisdictional, but if the failure to comply with it prejudices the party served, the court, on motion of the party served, may extend the time to answer or otherwise plead.[/QUOTE]

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First, we need to make sure that you're being sued for a monetary debt.   Second, as previously stated, it would help to know the name of the plaintiff.

I'm going to assume that the lawsuit is based upon a credit card debt.  If the plaintiff is the original creditor, as @kraftykrabhas pointed out, the FDCPA will not apply, but it will most likely apply to the law firm.  

A complaint can be filed in the county in which an account was opened even if you don't currently live in that county.   However, it would be difficult for a creditor or debt collector to claim that one account was opened in 2 different counties.

In the event that the plaintiff is the original creditor (OC), you could file a lawsuit against the law firm for violating the FDCPA.  Read your state laws.  Many state laws mirror the FDCPA allowing you to include state law violation, as well.

BUT, if the plaintiff is a debt buyer (claims to have purchased the debt), you could include the violation as a counterclaim due to the fact that the plaintiff is a debt collector and is vicariously liable for the actions of the law firm (also a debt collector). 

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