AZishot

Summons from Cap One as Plaintiff and being represented by AZ Law Gurstel Chargo

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Recieved a Civil Summons listing Cap One as Plaintif being represented by Gurstel Chargo.  This is for a debt listed at around 5k and was filed in Pinal County.  First, I do not live in Pinal County nor have I ever.  The summons did not come with ANY supporting documentation at all.  There is no account number, contract, statements or anything for that matter.  They are suing for breach of contract and didnt supply any documentation at all.  Any guidance on how to respond to this summons would be greatly appreciated.  This just seems very generic to me as if a JDB is actually suing me and not Cap One?  I would assume that Cap One would at least provide some documentation with the summons?  If it is a JDB I know its a violation by suing me in a county that I have never resided in.   PLEASE HELP!

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27 minutes ago, AZishot said:

Recieved a Civil Summons listing Cap One as Plaintif being represented by Gurstel Chargo.  This is for a debt listed at around 5k and was filed in Pinal County.  First, I do not live in Pinal County nor have I ever.  The summons did not come with ANY supporting documentation at all.  There is no account number, contract, statements or anything for that matter.  They are suing for breach of contract and didnt supply any documentation at all.  Any guidance on how to respond to this summons would be greatly appreciated.  This just seems very generic to me as if a JDB is actually suing me and not Cap One?  I would assume that Cap One would at least provide some documentation with the summons?  If it is a JDB I know its a violation by suing me in a county that I have never resided in.   PLEASE HELP!

The FDCPA does not apply to Cap1; however, it does apply to the debt collection attorney.

Check your credit report to see if Cap1 is listed.  If it is, see if the entry shows that the account has been "sold" or "transferred".    If it's merely been charged off but not sold or transferred, then Cap1 still owns it.

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I am in Maricopa County but I am close to Pinal County.  Technically, the San Tan Judicial Court in Chandler would be the proper venue and is closer than the one in Apache Junction.  Can I file a motion to dismiss for improper venue?  This would grant me a little more time to prepare if needed be I assume?

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Yes, I believe that is what you would do:

(2) A motion to dismiss the complaint. A motion to dismiss on the following grounds may be made under this rule before an answer is filed: (A) A motion to dismiss for lack of jurisdiction (jurisdiction is the authority of the court over the subject matter of the lawsuit or over a defendant); (B) A motion to dismiss for improper venue (venue is the location where the lawsuit is filed); (C) A motion to dismiss for improper service of the summons and complaint; (D) A motion to dismiss because the complaint does not state a valid claim even if the facts alleged in the complaint are assumed to be true.

Did the complaint explain why they thought Pinal was proper venue? I assume some clerk or mapping software picked that location by mistake.

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It did not explain why Pinal County was listed.  I assume it was a basic mistake as many people believe that the area I live in is Pinal county.  I looked on the Maricopa County Court and Pinal County Court website.  They both show that The proper venue is San Tan Justice Court in Chandler.  It is also closer to me via mileage and the time it takes to get there

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File a motion to dismiss and cite the incorrect venue.

 

I would then file an FDCPA suit against the attorney for filing in the incorrect venue. Your settlement would be to have them pay off the Cap1 debt.

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9 minutes ago, 1stStep said:

File a motion to dismiss and cite the incorrect venue.

 

I would then file an FDCPA suit against the attorney for filing in the incorrect venue. Your settlement would be to have them pay off the Cap1 debt.

We need to know the amount of the debt.  An FDCPA violation is, at most, $1000.   

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True... but if the attorney's fees paid to represent the OP can easily exceed $10k.

 

It's not like the Cap1 firm can claim any sort of error - filing suit in the wrong venue is as slam dunk as it gets.

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58 minutes ago, 1stStep said:

True... but if the attorney's fees paid to represent the OP can easily exceed $10k.

 

It's not like the Cap1 firm can claim any sort of error - filing suit in the wrong venue is as slam dunk as it gets.

We still need to know the amount of the debt.   In a case like this, attorneys fees would not easily exceed $10,000 because it's a simple, straightforward violation.   At $300 per hour, the attorney would have to show 10 hours just to charge $3000.

Let's find out the amount of the debt, and then we can go from there.

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A.) The first post says it's a ~$5,000 debt.

B.) File a motion to dismiss for improper venue.  They will refile in your correct court so be ready for that.

C.) This is not a JDB that has minimal investment in the debt.  A 2 year old debt of $5,000 for an OC is 60%-70% real money they have lost.  For the amount of business Cap 1 throws at Gurstel, he will eat the $1k violation with a smile on his face, and may not even spend any resources defending it just so there are no attorneys' fees to speak of.

D.) No plaintiff in AZ is required to substantiate their claims when filing a lawsuit and most debt collection lawsuits have no proof with the complaint.  They hope for the easy 95% default judgment rate with minimal effort.  It's when you challenge their claims that the proof will come.  Cap 1 keeps meticulous records.  They will surely be able to prove up this debt, especially if your last payment was within the last couple years.

E.) I sent Cap1 packing on a  $2,300 debt several years ago with an arbitration demand.  I believe Cap 1 removed arbitration from their agreements a while back, but if this is an older account, you might be grandfathered in to an arbitration clause.  What year did you open the account?

F.) If you don't have arbitration as an option, you need to seriously consider trying to settle this debt.  There is a 99% chance you will lose if you try to fight them in court.

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Regarding the venue and FDCPA: Given the fact that a single court (like San Tan) handles two counties, could it be argued that the "county" line does not constitute a division of judicial "districts," per FDCPA?

(For those in NE Phoenix, it seems like a common problem in 85254, where a defendant's house is in Phoenix, but their address is in Scottsdale, due to the location of the post office.)

This might be a question for FHCheese, but consider: What if the plaintiff gets this case dismissed due to venue and then pre-emptively initiates arbitration, knowing that a law suit is coming the correct court? How might that upset the proverbial apple cart?

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On 2/21/2017 at 10:44 PM, BV80 said:

We need to know the amount of the debt.  An FDCPA violation is, at most, $1000.   

Only the Statutory Damages max at $1k on an FDCPA suit.  However, settlements can easily go higher when factoring in costs to continue a case, actual damages (including emotional damages), etc.  For those reasons, Defendants will often settle FDCPA suits for well over $1k.  Offsetting a $5k debt is not necessarily out of the question.

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On 2/22/2017 at 3:57 PM, Goody_Ouchless said:

Regarding the venue and FDCPA: Given the fact that a single court (like San Tan) handles two counties, could it be argued that the "county" line does not constitute a division of judicial "districts," per FDCPA?

(For those in NE Phoenix, it seems like a common problem in 85254, where a defendant's house is in Phoenix, but their address is in Scottsdale, due to the location of the post office.)

This might be a question for FHCheese, but consider: What if the plaintiff gets this case dismissed due to venue and then pre-emptively initiates arbitration, knowing that a law suit is coming the correct court? How might that upset the proverbial apple cart?

With a good arbitraiton clause to use, that is exactly what I would do.  I would file the arbitration case and my motion to dismiss due to improper venue on the same day.  The arbitration would prevent them from legally filing suit in the correct venue. 

The only issue here, is that Op is using a contract with no arbitraiton and it may be difficult to make arb stick even if they happened to have opened the account prior to 2010 when arb was removed.

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On 2/22/2017 at 2:19 AM, Harry Seaward said:

F.) If you don't have arbitration as an option, you need to seriously consider trying to settle this debt.  There is a 99% chance you will lose if you try to fight them in court.

Wouldn't the FDCPA law suit against Gustro be a good negotiation tool in any settlement?  Without the use of arbitration and up against an OC, I would think taking any possible path I have to get the lowest possible settlement is what I would do.

Additionally, in the past when I was in similar situation (although, granted it was with a JDB), I found an attorney who was willing to work with me using a reverse-contingency type of deal.  He agreed to take a TCPA case I had, with no cost up front, and then agreed that out of my 70% of the award or settlement, he will take his flat rate to defend the lawsuit against me.  So, even though its another potential long shot, if OP can find an attorney to sue for the FDCPA violation, and only recovers the $1k, they could then use the $1k to have that attorney defend them against the Cap1 case when it is refiled in the correct venue.

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1 hour ago, fisthardcheese said:

Wouldn't the FDCPA law suit against Gustro be a good negotiation tool in any settlement?

If this were a junk debt buyer YES but not against an aggressive creditor like Cap1.  Cap1 will do one of two things:  not care and proceed with the suit because they cannot be named in the FDCPA claim. This will not be a counter claim it will be an entirely separate action against the law firm.  Or their other option is to simply fire GC and let them sail alone on the FDCPA claim and hire another firm who isn't a party to that action to proceed with the suit.

The problem is you are assuming Cap1 will settle.  Generally once they file suit AND a defendant starts FDCPA claims that won't stick to them they dig in and refuse to settle for less.  Not to mention GC has no power to force Cap1 to settle for less because their firm MAY have violated a federal law and is facing a separate action.

On 2/21/2017 at 1:51 PM, AZishot said:

I assume it was a basic mistake as many people believe that the area I live in is Pinal county.

Then GC will have a bonafide error defense available to them.  

On 2/21/2017 at 0:02 PM, AZishot said:

 

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On 2/21/2017 at 7:54 PM, 1stStep said:

It's not like the Cap1 firm can claim any sort of error - filing suit in the wrong venue is as slam dunk as it gets.

There IS a bonafide error the OP already stated it:  MANY people assume that area is Pinal County.  Second:  Cap1 is immune from an FDCPA claim.  ANY claim on that set of laws would be against the law firm only and separate from Cap1's suit against the OP.

On 2/22/2017 at 0:57 PM, Goody_Ouchless said:

the venue and FDCPA: Given the fact that a single court (like San Tan) handles two counties, could it be argued that the "county" line does not constitute a division of judicial "districts," per FDCPA?

Yes.  At the very least it gives them a bonafide error defense.

On 2/21/2017 at 7:54 PM, 1stStep said:

True... but if the attorney's fees paid to represent the OP can easily exceed $10k.

Nope.  Firms like GC are hired on a flat rate global fee annually that encompass a total number of hours for as many cases as they can get completed.  Each default judgment is automatically tagged with 3 billable hours in expense.  Cases that go to trial might get a bit more like 7 hours but it won't reach $10k accept on a Federal TRIAL.  The only way that billable hours becomes an issue is for the OP if they lose the claim and are ordered to pay the fees when GC submits an hourly accounting at that $300-500 per hour and the OP has to pay it.

As @Harry Seaward said GC will simply smile and eat the cost.  They do these cases ALL the time.  The OP needs to seriously consider whether ticking off Cap1 is a good plan.

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5 hours ago, fisthardcheese said:

Only the Statutory Damages max at $1k on an FDCPA suit.  However, settlements can easily go higher when factoring in costs to continue a case, actual damages (including emotional damages), etc.  For those reasons, Defendants will often settle FDCPA suits for well over $1k.  Offsetting a $5k debt is not necessarily out of the question.

When you claim actual damages, you then have the burden of proof of said claims.  The violation is filing the (likely legitimate) lawsuit in the wrong county.  What actual damages could there be?  Appearance fee of $37 and $3 parking?  Maybe an hour of lost wages?

There's nothing about this case that indicates settlement would come anywhere close to the amount of the debt.

@1stStep You need to talk to a consumer attorney that will tell you straight up what you have going on here.  Look up Floyd Bybee.  He's as straight as they come.  If you have a solid case, he will take it on contingency.  If you have no case he will tell you so.  If you *might* have a case, he'll probably take it with a retainer of around $1,500-$2,000, and if he wins you get your money back.

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6 hours ago, fisthardcheese said:

Only the Statutory Damages max at $1k on an FDCPA suit.  However, settlements can easily go higher when factoring in costs to continue a case, actual damages (including emotional damages), etc.  For those reasons, Defendants will often settle FDCPA suits for well over $1k.  Offsetting a $5k debt is not necessarily out of the question.

The plaintiff is an OC.   The FDCPA claim would be against the attorney.  I'm not sure the OP could show much in actual damages simply because the attorney filed suit in the wrong county.

 

6 hours ago, fisthardcheese said:

Wouldn't the FDCPA law suit against Gustro be a good negotiation tool in any settlement?  Without the use of arbitration and up against an OC, I would think taking any possible path I have to get the lowest possible settlement is what I would do.

The attorney is not a party to the cardmember agreement.  While it's easier for nonsignatories to force arbitration with signatories, it's not as easy the other way around.  In this case, the violation committed by the nonsignatory attorney has nothing to do with the contract that contains the arbitration provision.

A nonsignatory may be held to an arbitration clause "where the nonsignatory knowingly exploits the agreement containing the arbitration clause despite having never signed the agreement.'" Mundi v. Union Security Life Insurance Co., 555 F.3d 1042, 1046 (9th Cir.2009).

 

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52 minutes ago, BV80 said:

The plaintiff is an OC.   The FDCPA claim would be against the attorney.  I'm not sure the OP could show much in actual damages simply because the attorney filed suit in the wrong county.

 

The attorney is not a party to the cardmember agreement.  While it's easier for nonsignatories to force arbitration with signatories, it's not as easy the other way around.  In this case, the violation committed by the nonsignatory attorney has nothing to do with the contract that contains the arbitration provision.

A nonsignatory may be held to an arbitration clause "where the nonsignatory knowingly exploits the agreement containing the arbitration clause despite having never signed the agreement.'" Mundi v. Union Security Life Insurance Co., 555 F.3d 1042, 1046 (9th Cir.2009).

 

Yes, any action against the attorney would be in court.  Arbitration is likely not an option with this OC, which is why I am saying that suing the attorney could give Op a chance to recover some cash from the attorney's violation which can then be applied to settle the suit with the OC. 

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7 minutes ago, fisthardcheese said:

Yes, any action against the attorney would be in court.  Arbitration is likely not an option with this OC, which is why I am saying that suing the attorney could give Op a chance to recover some cash from the attorney's violation which can then be applied to settle the suit with the OC. 

Oh, ok.  I see what you're saying.   That makes sense.  :)

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2 hours ago, Harry Seaward said:

What actual damages could there be?  Appearance fee of $37 and $3 parking?  Maybe an hour of lost wages?

Emotional damages.

"The district court properly denied JRL's motion for a new trial or amendment of the judgment based on the jury's $250,000 award for actual damages due to emotional distress. In reviewing the district court's denial of a motion for a new trial for abuse of discretion, we defer to a jury's finding of the appropriate amount of damages unless the award is "grossly excessive or monstrous, clearly not supported by the evidence, or based only on speculation or guesswork." Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996) (citation omitted). We "may not assess the credibility of witnesses in determining whether substantial evidence exists to support the jury's verdict." Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir.1999) (citation omitted).

....At the close of the evidence, the trial judge issued the following jury instructions with respect to damages available under the FDCPA:

Actual damages include damages for personal humiliation, embarrassment, mental anguish and  emotional distress. There is no fixed standard or measure in the case of intangible items such as humiliation, embarrassment, mental anguish or emotional distress. Mental and emotional suffering and distress pass under various names such as mental anguish, nervous shock and the like. It includes all highly unpleasant mental reactions such as fright or grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea. The law does not set a definite standard by which to calculate compensation for mental and emotional suffering and distress. Neither is there any requirement that any witness express an opinion about the amount of compensation that is appropriate for the kind of law.
The law does require, however, that when making an award for mental and emotional suffering and distress you should exercise calm and reasonable judgment. The compensation must be just and reasonable."  - McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F. 3d 939 - Court of Appeals, 9th Circuit 2011
 
EDIT:  And I'm not saying OP needs to get emotional damages anywhere near the $250k in this cited case.  But the potential for emotional damages exists, which makes settlement around the $5k mark very possible, IMO.

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