Maybe someone can figure this out for me. November 2009 received letter from JDB. Responded with request for validation, CRRR. Never got a response from them. Do have the return receipt. Just received from sheriff's office, civil complaint from Court of Common Pleas. Same JDB. Being sued for less then 3K. (Why not small claims?) Plaintiff filed in the wrong county, not mine nor his. Now even more confusing is the original complaint was stamped... RECEIVED January 2010. Next to that is another stamp saying Complaint Reinstated April 2010. Never got anything about this until now. So, I'm confused. SOL was up March 2010. But which date applies as far as their filing? How do I answer with regards to wrong venue and the ignored request for validation from November? They seemed to have violated The FDCPA, no? In the complaint they have the mini maranda so do I send another Validation request? Also they include two Bills of Sale from other JDB's and a copy of a generic credit card agreement. No signed contract from me. They include a verification from the VP of the Plaintiff. So what should my next move be? I'm so confused. Thanks for taking the time to read my ranting questions. I just don't know how to respond, answer or preliminary objections or as for dismissal for wrong venue??? Any help would be very welcome.
Well now, I can't give you any legal advice because I'm not an attorney and I would be ashamed to admit it if I were but if I were to have been served in some county other than the one where I live (Oklahoma County, Oklahoma) I'd prepare a motion to dismiss for wrongful geographical jurisdiction. Then I'd go to that county and file my motion with the court. Although I filed motion to dismiss I would not be the least bit surprised if the court in that other county refused to dismiss but transferred the case to my county instead. What the other court would do would probably be up to the judge who might dismiss or might transfer. To the best of my knowledge and belief what happens is up to the judge. I've seen some dismiss and I've seen some transfer. In any event I would expect it to end up in my home county either as a new filing or as a transfer. Why didn't they file in small claims? I have no idea but I suggest that you do some research into the matter by checking your state and local rules of civil procedure. In any event, I doubt that I would want to kick that dog because you might not be able to use any of your discovery tools or file any motions or do much of anything in small claims whereas in higher courts you have a full range of options. I'm faced with that problem myself here in Oklahoma County. I can file objections and that is about it from what I can tell at this point in time. I'm going to have to go to the law library Monday and see what might be done. Currently the information I have says I can't file any motions and can't use any of my discovery tools in small claims courts. On the other hand some information I have says that maybe they should have filed in district court instead of small claims. I'm just going to have to do some research and see what I come up with.
Thanks for the advise Bill. I know that the venue would be transferred to my county and that would be fine. I just can't find an answer to which date on the complaint applies. The original date and stamp "Received" is January 2010, but then there is a second stamp "Complaint Reinstated" and that is dated April 2010. I never received the complaint until now. So if the April date is applicable then the SOL is past. If the January date is the one that counts the SOL was not past. Any thoughts?
It may take a judicial ruling to determine the answer to that question but I will try to make what I hope is a sort of educated guess by saying that it seems to me that the date the case was originally filed would be the determining date. On the other hand, if the case is dismissed by the current court and refiled as a new case then the running of the SOL would be interrupted by the amount of time between the original filing and the dismissal. In that case I tend to think that the debt could still be out of sol by the time they refile depending on how long it was in court and when they refile. Yes, I know that could turn it into a bit of a complicated situation but that's the way I see it.
I think I found some applicable case law regarding my question. It sounds like the second date applies. Of course I'm not sure what all the legalize means but that's what I take from it. So, I can't post links but I found Lamp v. Heyman, a PA Supreme Court Case from 1976, that addresses this exact issue.
HI I had a similar situation as all three collection agency's (original Citi Bank credit cards) filed in the wrong county. I asked for clarification and the court ordered it to be moved to the correct county/court "and" the order said that the Plaintiff(s) had to pay the necessary fees to the new county/court. All three CA's did move them. When I filed the "Validation" for each CA through my county/court, I checked with my states "Indiana RULES OF COURT" and found that if the CA wanted the case to be moved and continued to my county they had to file with in 20 days from the court order. If they did file within the 20 days, then all the files and where ever the case was in the wrong court continued what ever the status was at that time. Well, none of them did file within the 20 days and so the case actually started over -- new -- on the date they opened it in my county/court. You may want to check out your state's Rule of Court in your state and find out what the rules are.... if they had to start all over in the correct county. You can then research and decide if it was moved over or started over. Also, there is case law about CA and courts not giving notice to the Defendant....and even obtaining Default Judgment. One CA said that they received default judgment in the previous court. I proved that they did not and even if they had it was not valid because the CA started over in my new county because they did not open the case in my county within the 20 days. Just some thought.
