FDCPA Violation or not? If so which section?

kaxmaII3 · 08-17-2006, 02:44 PM

Hypothetical situation:

JDB Sues one in the wrong state. (defendant can prove it)

JDB discovers their mistake, voluntarily dismisses to "cure their defect"

JDB then sues in the CORRECT state....

Is the fact that they sued in the wrong state, even though they knew where a defendant actually lived, and the defendant can prove that they knew, a FDCPA violation, or not....

ideas? opinions?

centex · 08-17-2006, 03:00 PM

How are you able to prove that they knew the correct address for jurisdiction purposes?

Rather than focusing on FDCPA, I would be looking at other areas of the RCP for the purposes of sanction if I could prove up such a claim. I would also be arguing DTPA claims, which have no cap on awards in this state (yours could be different).

Unlike the mantra on other boards, defendants in credit litigation would well-served to look outside the little world of FCRA or FDCPA guidelines. There are larger awards to be found, depending on the case merits and it moves into arguments that many of the CA/JDB counsel have not had to address, which means more margin for error in their work.

kaxmaII3 · 08-17-2006, 03:11 PM

Thank you, Centex.

The defendant has a signed, CMRRR from the plaintiff, which clearly has the defendant's actual address on it. Problem is, the suit wasn't filed in that state.

It was filed in a previous state of residence.

Thank you for your opinions and ideas.

anyone else?

jlynn · 08-17-2006, 03:33 PM

Was there a lawyer involved on behalf of the CA? Was the CMRRR dated before the lawsuit, if so how long? Lots of variables here that could catch you with the bona fide error defense.

kaxmaII3 · 08-17-2006, 04:09 PM

Yes, there WAS a lawyer involved. They sent some documents to the defendant as
"validation," and the defendant reviewed them, and replied that the defendant "couldn't confirm from the documents that they sent that the account was the defendants' or that the amounts were correct, if it was"

The defendent's reply to their validation attempt was sent from the defendant's actual address, CMRRR, but the SUIT was filed, two months later, in a state of previous residence.

jlynn · 08-17-2006, 04:33 PM

Quote:

Originally Posted by kaxmaII3

The defendent's reply to their validation attempt was sent from the defendant's actual address, CMRRR, but the SUIT was filed, two months later, in a state of previous residence.

OK, then the defendant would have gotten the green card - not the attorney. If the only address correction the attorney has was on the envelope itself, assuming a secretary didn't dispose of the envelope before processing the letter, sounds like it could be a bona fide error.

I wouldn't walk into a courtroom with JUST that.

Edit to add - where was the original validation sent?

kaxmaII3 · 08-17-2006, 04:46 PM

The ORIGINAL validation was sent to the former state address. If the defendant hadn't personally known the Postmaster there the defendant would never have gotten it.

It's not a HUGE thing...the defendant was just wondering....litigation is apparently just postponed.

Edit: the correct address was not only on the envelope but also the letter to the JDB sent by the defendant.

jlynn · 08-17-2006, 04:56 PM

Well, also considering they did voluntarily dismiss after discovering their mistake, I wouldn't order a new Ferrari on that one

, but good luck with the litigation, and as Centex said - think outside of the box.

Deceptive Trade Practices is your friend in TX - I don't know about other states.

kaxmaII3 · 08-17-2006, 05:46 PM

Thanks, JLynn

This waiting is driving the defendant crazy though..the defendant and the defendant's lawyer had these folks on the ropes and then this.....darn!

jlynn · 08-17-2006, 07:03 PM

What is the defendant waiting on? Has he raised counterclaims? I mean on its own merits, in this instance, suing in another state would be weak, but there is nothing saying you can't throw it into the beanpot if defendant has more cooking.

centex · 08-17-2006, 07:30 PM

Quote:

Originally Posted by kaxmaII3

Thanks, JLynn

This waiting is driving the defendant crazy though..the defendant and the defendant's lawyer had these folks on the ropes and then this.....darn!

Proving intent will nonetheless be difficult...you have to overcome the "stupid" defense to the claim. This is also commonly referred to as the "oh shit...man, I eff'ed up,,,I'm sorry" defense.

kaxmaII3 · 08-23-2006, 05:54 PM

Agreed, Centex!

Defendant and their lawyer have noted that, even though the JDB SAID they were dismissing, it hasnt happened yet. It's now been 10 days.....defendant is getting a bit nervous.

Edit: Note that the defendant hasn't even been SERVED yet.

centex · 08-23-2006, 08:11 PM

Quote:

Originally Posted by kaxmaII3

Agreed, Centex!

Defendant and their lawyer have noted that, even though the JDB SAID they were dismissing, it hasnt happened yet. It's now been 10 days.....defendant is getting a bit nervous.

Edit: Note that the defendant hasn't even been SERVED yet.

Then the thing that should be occuring is a motion non-suiting the case. In Texas, the Dismissal or Non-Suit is addressed in TRCP 162, which states in pertinent part that Notice of the dismissal or non-suit shall be served in accordance with Rule 21a on any party who has answered or has been served with process without necessity of court order.

kaxmaII3 · 08-23-2006, 09:40 PM

Thanx again, Centex!

The defendant is giving them til this weekend, after which the defendant will prevail upon the defendant's lawyer to once again call them and find out exactly what the H*** is going on. These particular JDB folks are a sneaky bunch!

kaxmaII3 · 08-24-2006, 12:30 PM

UPDATE: They dismissed in the incorrect venue.

Of course this simply means that now they will file, probably darn QUICKLY in the correct venue.

This complicates things for the defendant but makes things oddly easier for the defendant also, as defendant WORKS in the state they previously filed in.

So, correct me if I'm wrong, but even if they ultimately get a judgement, since defendant has no assets other than defendants' paycheck, wouldn't they have to get it domesticated back in the OTHER venue to enforce garnishment?

Darn this is confusing.

hannah · 08-24-2006, 12:37 PM

Quote:

Originally Posted by kaxmaII3

UPDATE: They dismissed in the incorrect venue.

Of course this simply means that now they will file, probably darn QUICKLY in the correct venue.

This complicates things for the defendant but makes things oddly easier for the defendant also, as defendant WORKS in the state they previously filed in.

So, correct me if I'm wrong, but even if they ultimately get a judgement, since defendant has no assets other than defendants' paycheck, wouldn't they have to get it domesticated back in the OTHER venue to enforce garnishment?

Darn this is confusing.

Can they even garnish in other state? What does the statute say there?

rikers1 · 08-24-2006, 12:37 PM

Yes, they would have to domesticate it in the state where he works for wage garnishment. They can still go after his bank account in the state he lives in.

kaxmaII3 · 08-24-2006, 01:24 PM

JDB CAN garnish in the other state, according to statute...(after domestication)

As far as bank accounts go, two questions:

1) can they do anything PRE-judgement? This is NOT in MN, TX, or WI.

2) What about joint accounts? Defendants state is NOT in a community property state.

hannah · 08-24-2006, 01:30 PM

Quote:

Originally Posted by kaxmaII3

JDB CAN garnish in the other state, according to statute...(after domestication)

As far as bank accounts go, two questions:

1) can they do anything PRE-judgement? This is NOT in MN, TX, or WI.

No. Unless this is a student loan or other type of government loan.

Quote:

Originally Posted by kaxmaII3

2) What about joint accounts? Defendants state is NOT in a community property state.

Again, no.