Thread: Lizard King/Whispers - Motion Help?

I've got a case against the guarantor of my Student Loan. All pleadings so far have been posted on CreditCourt.

The Defendant's did a Motion to Deny based on jurisdiction, and then a Motion for Sanctions - saying my suit was an attempt to harass them.

I've done up a Motion to Deny Defendant's Motion - but I'm not sure its very good. It may be waaay too long.
I'm open to any suggestions.

I'm going to post it right after this - it'll be too long for this message (may have to split it to two messages)

Thanks so much - I really, really want to win this one!

Mommy2cats

VERDE VALLEY PRECINCT, STATE OF ARIZONA
IN AND FOR THE COUNTY OF YAVAPAI

Mommy2cats, PLAINTIFF
V.
NH HIGHER EDUCATION ASSISTANCE FOUNDATION, DEFENDANT

Plaintiff’s Motion to Deny Defendant’s Motion to Dismiss and Motion for Sanctions

NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Defendant’s Motion to Dismiss and Motion for Sanction for the following reasons:

Defendant Motion states:
1. Justice Court has no jurisdiction to hear claims under the Fair Debt Collection Practices Act. “Justice Courts are courts of limited jurisdiction. A.R.S. 22-201A. A.R.S. 28-1552 sets out those limits, which certainly do not include federal claims arising under U.S.C. 15-1692, the Fair Debt Collection Practices Act.
Plaintiff’s Complaint specifically cited the Fair Credit Reporting Act, not the Fair Debt Collection Practices Act.

Nothing in ARS 22-201 suggests the Justice Court is the improper jurisdiction or venue, rather, the provisions support Plaintiff’s assertion that the Justice Court has jurisdiction, venue and is a competent forum for this complaint. Furthermore, ARS 28-1552 is the jurisdiction of municipal and justice courts for VEHICLE VIOLATIONS.

2. Verde Valley Justice court has no jurisdiction over Defendant, a New Hampshire Foundation.
Further they state that: “Plaintiff’s Complaint fails to establish either this court’s jurisdiction or venue over Defendant, and both are improper under A.R.S. 22-201.

Verde Valley Justice Court has jurisdiction over the Defendant, a NH Foundation, based on its actions having occurred in Yavapai County, Arizona, where the Plaintiff resides. The reporting and reporting errors occurred in Yavapai County, Arizona as well.

Further, Arizona Revised Statutes specifically address credit reporting and do NOT limit its provisions to information furnishers (Defendant) based on geographical location.

Nothing in ARS 22-201 suggests the Justice Court is the improper jurisdiction or venue, rather, the provisions support Plaintiffs assertion that the Justice Court has jurisdiction, venue and is a competent forum for this complaint.

ARS, Title 44, Article 6, Consumer Reporting Agencies and Fair Credit Reporting address reporting, reporting requirements and liability.

Specifically, 44-1694, Correction of credit reports, addresses the procedure for disputing items included in a credit report.

If a consumer remains unsatisfied after a reinvestigation, the FCRA and Arizona statutes provide three options: 1. provision for a consumer statement to be included on all future reports, 100 words or less. 2. provision for mailing copies of the report as changed based on the reinvestigation to all who had previously received it within the past 6 months and 3., provision allowing for the consumer to request the agency to provide the a description of the specific procedure used to verify the information.

"3. A notice that states that, if requested by the consumer, the consumer reporting agency shall provide the consumer with a description of the procedure used by the consumer reporting agency to determine the accuracy and completeness of the information."

The purpose of requiring a description of the procedure used by the agency to determine accuracy is to enable the consumer should it disagree with the reporting after re-investigation to contact the creditor directly. It does NOT state that Plaintiff (consumer) is limited to creditors whose business is located within the state of Arizona.

(continued in next message)

(continued)

ARS 44-1695 Liability

Provides for the liability of information furnishers:

"C. Any consumer reporting agency, user of information or source of information that is grossly negligent in the use or preparation of a consumer report or who acts willfully and maliciously with intent to harm a consumer is liable to the consumer for actual damages, if any, punitive damages and attorney fees and court costs. If a consumer reporting agency prepares a consumer report, the consumer reporting agency shall follow reasonable procedures to assure the maximum possible accuracy of the information relating to the consumer who is the subject of the consumer report."

Arizona statutes go further than the FCRA and student loan rehab laws regarding dates:
44-1697. Fair credit reporting
A. If a consumer makes a payment on a credit or loan account to the proper address to which the payment should be directed, a person shall calculate the number of days by which an account is delinquent by determining the number of days between the scheduled due date of the payment and the date the payment was received by that person.

B. If a person uses a reporting standard that requires a calculation of the number of days an account is delinquent, the person may report the delinquency based only on the number of days of the delinquency plus not more than four days.

Defendant states that this filing was “without merit and intended merely to harass Defendant, Defendant also requests the Court award Defendant appropriate sanctions including costs and attorneys fees of $500.”

This case arose out of a Student Loan granted to the Plaintiff while Plaintiff resided in the State of New Hampshire, now presently residing in the State of Arizona for the past three years. According to a document from the Defendant (Exhibit A) this loan defaulted in February, 1989. The Plaintiff does not deny that she defaulted on this loan. The loan was paid in full in May of 1996.
The account should have been removed from the Plaintiff’s credit reports in November, 1996. As of the filing of Plaintiff’s Complaint on July, 2002, this account was still being reported on her credit reports.

According to Special Legislation for Student Loans:
The 1998 Higher Education Reauthorization Act made several changes to the rules concerning student loans and helped clarify others. The significant changes include the following:
· A student loan that is in default will now be reported to credit bureaus until it is paid off, even if that takes more than seven years. This new law creates an exception to the Fair Credit Reporting Act, which states that negative information must come off a credit report after seven years.
· Under the old rules, your loans were considered in default 180 days (six months) after you missed a payment. This period has been extended to 270 days (nine months).

The date of last activity is not calculated from the last payment, but from the default date. Therefore, since the loan defaulted in February of 1989, the date of last activity should have been (February plus nine months) November, 1989. The seven years would run from that date, NOT the date of payment..
The Special Legislation does state that it can be reported longer than seven years if not paid. The Plaintiff did pay in May, 1996. Defendant used the date of May, 1996 as the date of last activity, clearly in violation of the law. Therefore, the Defendant re-aged this account making it report as a derogatory account for six years longer than lawful.
In addition to reporting the account SIX YEARS longer than lawful, the credit reporting for this account was also incorrect. Although the Defendants did mark this account as owing zero dollars, the Defendant’s reporting was done in such a manner that the Plaintiff was 120+ days CURRENTLY late on those zero dollars. This reporting affected Plaintiff’s FICO score as though it was a CURRENTLY derogatory account.
This inaccurate reporting damaged the Plaintiff’s ability to receive credit and advantageous interest rates.
Plaintiff disputed the credit reporting and the account. Defendant failed to provide any accounting for the account and failed to notify the credit bureaus of this fact. IN ADDITION, the Defendant placed a more derogatory notation on Plaintiff’s credit report.

15 U.S.C. §1692k(a)(3) provides that:

"…On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorneys fees reasonable in relation to the work expended and costs."

The awarding of attorney’s fees to the defendant for "harassment" and "bad faith" under this provision is far more stringent than the federal common law rule permitting such fees when "the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." The heavy burden of proving the plaintiff acted in bad faith and with the purpose to harass first requires that the defendant prevail against the debtor on the underlying claim and that the court not award the plaintiff fees under §1692k(a)(3). "


Plaintiff has not acted with malice nor harassed the Defendant in any way. Plaintiff is attempting to obtain relief for violations of the Defendant as a furnisher of information.

Plaintiff has initiated the lawful remedy of litigation only after having exhausted all other avenues available to Plaintiff.

Plaintiff has initiated the proceedings as a last resort and only after having initiated, pursued and exhausted all other avenues that could have provided resolution had the Defendant chosen to abide by the regulations which it is bound by.

Defendant has moved for sanctions and an award of attorney's fees and court costs as a relief and not a cause of action. The Motion is improperly raised as a counterclaim and should be dismissed.

"In accordance with the FDCPA, 15 U.S.C. 1692k, Plaintiff may bring actions to enforce liability under said Laws in any Court of competent jurisdiction. All of Plaintiff’s causes of action arose in the County of Yavapai, Arizona, to with, Defendant engaged in prohibited debt collection and credit reporting activities against Plaintiff while Plaintiff resided in the above named County."

Plaintiff asserts that the above facts clearly demonstrate that her Complaint is not a matter of harassment, but rather an attempt to rectify an injustice, and therefore Defendant’s Motion for Sanction should be denied.

According to the Fair Credit Reporting Act, 616. Civil liability for willful noncompliance [15 U.S.C. § 1681n], (a) In general. Any person who willfully fails to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to the sum of (1) (A) any actual damages sustained by the consumer as a result of the failure or damages of not less than $100 and not more than $1,000, (2) such amount of punitive damages as the court may allow; and (3) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.

Plaintiff has been denied credit at reasonable rates because of the willful noncompliance actions and/or inactions of the defendants.

According to the Fair Credit Reporting Act, 617. Civil liability for negligent noncompliance [15 U.S.C. § 1681o]
(a) In general. Any person who is negligent in failing to comply with any requirement imposed under this title with respect to any consumer is liable to that consumer in an amount equal to the sum of
(1) any actual damages sustained by the consumer as a result of the failure;
(2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.
Plaintiff has been denied credit at reasonable rates because of the negligent noncompliance actions and/or inactions of the defendants.

THEREFORE Plaintiff requests judgment against Defendants for damages of $2,500 plus costs and fees.

Plaintiff seeks the permanent removal of the derogatory account listed by the Defendant on her consumer reports, as well as a permanent injunction against Defendant to bar them from reporting it to any other consumer reporting agency.
Plaintiff asks that this Honorable Court Deny the Defendant’s Motion to Dismiss.
Plaintiff asks that this Honorable Court Deny the Defendant’s Motion for Sanctions
Plaintiff asks for any other relief that this Honorable Court may deem just and meet.

I hereby certify that a copy of the foregoing Motion has been duly mailed, this date.

Mommy2Cats,

LizardKing's complaint took 4 postings to get it all up and Whyspers had 6 typed pages!

I think your length is fine.

Besides, it is YOUR day in court, YOURS, and you have something to say.

That dumb Phoenix attorney would have something to say if he weren't citing the TRAFFIC VIOLATION (LOL I still love that) statutes for jurisdiction.

bumping for you.

Sassy

Well, I shorted it QUITE a lot. I had a few suggestions that Judges don't like paraphrasing. Here's the new version:

VERDE VALLEY PRECINCT, STATE OF ARIZONA
IN AND FOR THE COUNTY OF YAVAPAI

Mommy2cats, PLAINTIFF
V.
NH HIGHER EDUCATION ASSISTANCE FOUNDATION, DEFENDANT

Plaintiff’s Motion to Deny Defendant’s Motion to Dismiss
and
Motion for Sanctions

NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Defendant’s Motion to Dismiss and Motion for Sanction for the following reasons:
This Complaint was originally filed in Small Claims Court. The form has a small section to list reasons for a Complaint. The Plaintiff did specifically state the Fair Credit Reporting Act, but due to the small space apologizes to this Honorable Court if it seems that any reason was for The Fair Debt Collection Practices Act.
Defendant Motion states:
1. Justice Court has no jurisdiction to hear claims under the Fair Debt Collection Practices Act.
Plaintiff’s Complaint specifically cited the Fair Credit Reporting Act, not the Fair Debt Collection Practices Act.
Nothing in ARS 22-201 suggests the Justice Court is the improper jurisdiction or venue, rather, the provisions support Plaintiff’s assertion that the Justice Court has jurisdiction, venue and is a competent forum for this complaint. Furthermore, ARS 28-1552 is the jurisdiction of municipal and justice courts for VEHICLE VIOLATIONS.

2. Verde Valley Justice court has no jurisdiction over Defendant, a New Hampshire Foundation.
Further they state that: “Plaintiff’s Complaint fails to establish either this court’s jurisdiction or venue over Defendant, and both are improper under A.R.S. 22-201.

Verde Valley Justice Court has jurisdiction over the Defendant, a NH Foundation, based on the fact that the reporting errors occurred in Yavapai County, Arizona. Plaintiff’s address listed on her credit report is Sedona, Arizona.

Further, Arizona Revised Statutes specifically address credit reporting and do NOT limit its provisions to information furnishers (Defendant) based on geographical location.

ARS, Title 44, Article 6, Consumer Reporting Agencies and Fair Credit Reporting address reporting, reporting requirements and liability.

Specifically, 44-1694, Correction of credit reports, addresses the procedure for disputing items included in a credit report. It does NOT state that Plaintiff (consumer) is limited to creditors whose business is located within the state of Arizona.
Arizona statutes go further than the FCRA and student loan rehab laws regarding dates such as 44-1697. Fair credit reporting

Defendant states that this filing was “without merit and intended merely to harass Defendant….”

This case arose out of a Student Loan granted to the Plaintiff while Plaintiff resided in the State of New Hampshire, now presently residing in the State of Arizona for the past three years. According to a document from the Defendant (Exhibit A) this loan defaulted in February, 1989. The loan was paid in full by the Defendant in May of 1996.
The account should have been removed from the Plaintiff’s credit reports in November, 1996. As of the filing of Plaintiff’s Complaint on July, 2002, this account was still being reported on her credit reports.

Plaintiff contends that the Defendant re-aged the account using the date of the payment in full, rather than the date of default as required by law. Both the FCRA and Special Legislation for Student Loans are very specific about the aging of debts. In this case, it would have been nine months plus seven years from the date of default for this account to fall off Plaintiff’s credit reports.
In addition to reporting the account SIX YEARS longer than lawful, the credit reporting for this account was also incorrect. Although the Defendants did mark this account as owing zero dollars, the Defendant’s reporting was done in such a manner that the Plaintiff was 120+ days CURRENTLY late on those zero dollars. This reporting affected Plaintiff’s FICO score as though it was a CURRENTLY derogatory account.
This inaccurate reporting damaged the Plaintiff’s ability to receive credit and advantageous interest rates.

Plaintiff has not acted with malice nor harassed the Defendant in any way. Plaintiff is attempting to obtain relief for violations of the Defendant as a furnisher of information. Plaintiff has initiated the lawful remedy of litigation only after having exhausted all other avenues available to Plaintiff. Plaintiff has initiated the proceedings as a last resort and only after having initiated, pursued and exhausted all other avenues that could have provided resolution had the Defendant chosen to abide by the regulations to which it is bound by.

Defendant has moved for sanctions and an award of attorney's fees and court costs as a relief and not a cause of action. The Motion is improperly raised as a counterclaim and should be dismissed.

Plaintiff asserts that the above facts clearly demonstrate that her Complaint is not a matter of harassment, but rather an attempt to rectify an injustice, and therefore Defendant’s Motion for Sanction should be denied.

Plaintiff asks for relief according to the Fair Credit Reporting Act, 616 and Act, 617, the costs of the action together with reasonable attorney's fees as determined by the Court.
Plaintiff has been denied credit at reasonable rates because of the willful noncompliance actions and/or inactions of the defendants.

THEREFORE Plaintiff requests judgment against Defendants for damages of $2,500 plus costs and fees. Plaintiff also seeks the permanent removal of the derogatory account listed by the Defendant on her consumer reports, as well as a permanent injunction against Defendant to bar them from reporting it to any other consumer reporting agency.

Plaintiff asks that this Honorable Court Deny the Defendant’s Motion to Dismiss.
Plaintiff asks that this Honorable Court Deny the Defendant’s Motion for Sanctions
Plaintiff asks for any other relief that this Honorable Court may deem just and meet.


Is this better? Or worse?

Mommy2cats

Awesome job! It looks great and I think you have adequately argued your position. It made me chuckle because I'm glad I'm not the only one who makes a pleading look like a brief...heehee.

At any rate...the only thing I might suggest is not repeating what the other party said in their motion. Instead, you might address is by paragraph as you would when doing an answer....ie...

"states as follows:

1. Respond to what they said in paragraph one..."

You don't want to emphasize their point for them by repeating it so it sticks in the judge's head, yanno?

Just a though and again...I think you did a terrific job.


L

Oh...just one other little thing...you can't get attorney fees if you are pro se, so you might want to change that language a little bit to something like:

Plaintiff asks for relief according to the Fair Credit Reporting Act, 616 and Act, 617, the costs of the action together with reasonable attorney's fees if Plaintiff retains an attorney during the pendency of this action.

Thanks Whyspers! Is there any way I can word in consulting fees? Christine Baker helped me a LOT (a whole real lot) with this case - and I wish I could get fees for her. But she's not an attorney.

I think I like the shorter version - with a few minor revisions (like your suggestions). I'd like to file this tomorrow if possible.

Then the Judge rules on it on October 11th. (no oral aruments - no party needs to appear...) I take that as they don't WANT you there....

Thanks for all the support everyone! :)

Mommy2cats

Sleep well tonight, Mommy2Cats!

Sassy

To my knowledge, the law doesn't allow for consultation fees...only attorney fees. Could be wrong on this one though.

Good luck with it!!! Please keep us posted.


L