Can anyone help me with a Motion? The Defendants are trying to Dismiss due to Lack of Juirisdction. (saying I cannot file in small claims court) They are also saying that I cannot file for FDCPA because they are an OC. and TRYING to get the Court to award $500 to them for my "harrasment" in filing the suit. I'm including their motion. My draft of my motion tells the basic facts of why I filed.... ANY help would be appreciated!! Their Motion: Pursuant to Rule Rule of Civil Procedure 12(b)1 and 1, Defendant So-and-So moves this Court to dismiss this case for lack of jurisdiction over both the matter and the person, and under Rule 12(b)6 for failure to state a claim. Because this filing was without meerit and intended merely to harass Defendant, Defendant also requests the Court award appropriate sanctions including costs and attorneys fees of $500. 1. Justice Court has no jurisdiction to hear claims under the Fair Debt Collection Practices Act. Justice Courts are courts of limited juristction. A.R.S. 22-201-A. 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. 15 U.S.C. 15-1692k(d). therefore, this claim must be dismissed for lack of subject matter jurisdiction. 2. Verde Vlley Justic Court has no jurisdiction over Defendant, a New Hamphshire Foundation. 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. 3. Defendant is not a debt collector under the Fair Debt Collation Practices Act. For purposes of the Fair Debt Collection Practices Act. 15 U.S.C. 1692a(6) defines debt collector as someone other than the actual creditor. Because the Defendant in this case is the actual creditor rather than a debt collection agency, the Complaint fails on its face to state a claim under which relief can be granted pursuant to the Fair Debt Colelction Practices Act. Additionally, the FDCPA concerns actions involved in collecting a debt, not credit reporting, which falls under another statue entirely. For all these reaons, this Complaint should be dismissed and Defendant should be awarded costs and attorneys fees. My Motion (draft): VERDE VALLEY PRECINCT, STATE OF ARIZONA IN AND FOR THE COUNTY OF YAVAPAI MOMMY2CATS, PLAINTIFF V. NH HIGHER EDUCATION ASSISTANCE FOUNDATION, DEFENDANT 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: § 618. Jurisdiction of courts; limitation of actions [15 U.S.C. § 1681p] An action to enforce any liability created under this title may be brought in any appropriate United States district court without regard to the amount in controversy, or (in any other court of competent jurisdiction,) within two years from the date on which the liability arises, except that where a defendant has materially and willfully misrepresented any information required under this title to be disclosed to an individual and the information so misrepresented is material to the establishment of the defendant's liability to that individual under this title, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Plaintiff believes that small claims court is a court of competent jurisdiction. The Defendant, as per their rights, moved to have this case moved to Civil Court. As the Plaintiff was damaged while residing in Arizona, the Plaintiff asserts that this Honorable Court does have jurisdiction over this matter. 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: 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 which would be November, 1996. 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. The Defendant states in their Motion for Sanctions that this Complaint ?filing was without merit and intended merely to harass Defendant.? 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. Any comments would be appreciated!
Go ahead and file your motion, but, from what I found out recently, once a request is made in AZ to bump a case from small claims to civil, it is automatic as small claims is done without lawyers and the defendant has a right to be represented. I filed a very similar motion against credit data southwest last year when they bumped it from small claims to civil to federal. It was denied. I based it on the same rule you are quoting. If you filed for damages under the fdcpa, and this is an oc, their claim is correct in that they are not liable under the fdcpa and that claim would have no merit. Can you go into more detail as to what is going on.
Re: Desparately Need Help with Moti Thanks - LKH. I wasn't objecting to their moving it to Civil - I'm objecting to their Motion to Dismiss and thier Motion for Sanctions (their saying my motion was harrasment and that I should pay them $500) The small claims form doesn't give much room. I filed against their incorrect reporting, failure to report my dispute and then verifying the incorrect information. This was a student loan fully paid that they were reporting as 120+ days late. Plus, as you can see in my motion - it's been on my report six years too long. So maybe I can't get them for the failure to put in dispute, but I would think my claim of their incorrect reporting is something an OC would be liable for? And the six years too long? Do I stand of a chance of a judgment against me? (the attorneys fees and $500?) Mommy2cats
Re: Desparately Need Help with Moti On the surface it looks like you should be suing under the FCRA. The FCRA covers how something is reported, the FDCPA covers how something is collected. WALLST
Re: Desparately Need Help with Moti Definately state that you aren't filing anything under FDCPA violations only FCRA which sanctions, OC, CRA, and CAs. It was about incorrect credit reporting and you will be seeking damages for 6 years of high interest rates on your auto loan, mortgage, auto insurance rates and credit card interest rates if you are going to be placed in a higher court. Basically you just wanted this to be remedied in small claims without all the mess. But if they want to go to the higher court in my jurisdiction then so be it. And sanction it for the additional fees to get an attorney cause YOU, too have a right to be represented.
Re: Desparately Need Help with Moti Yeah, everything that you've listed in your claim as their violations are violations of the FCRA not the FDCPA (from what I can see anyway). Can you amend your claim and change it to the FCRA and claim a administrative error? Whatever happens, good luck!
Re: Desparately Need Help with Moti I pulled out my Complaint - and I actually DID list FCRA. I did include a few FDCPRA ones - but most WERE the FCRA ones. So, I don't think I have to ammend that - just point it out in my motion. Thanks everyone for the help. As I said in another post - I am going to post all motions, replies, letters on Creditcourt.com as hopefully it will help others as well. Mommy2cats
Re: Desparately Need Help with Moti I seriously doubt that. This should be the last of your concerns. It's just an intimidation tactic. You have a legitimate beef with them and have tried and tried to get it resolved. Hence the need to have a court straighten it out. That's what courts are for and there is nothing frivolous about your problem. Hang in there and stick to your guns.
Re: Desparately Need Help with Moti Butch - thank you for the words of wisdom and encouragement! I've thought a lot about it myself and I don't see HOW a Court could interpret my Complaint as harrassment. Especially since the Defendant re-aged the debt so that it has been on there six years too long. How can my attempting to rectify THAT be considered harrassment? I feel better about it - and yes - I AM going to hang in there! Mommy2cats
Re: Desparately Need Help with Moti Kiyi is right on, make sure you have damages if you go under the FDCPA if you want those to stick. Under the FCRA, you are allowed punitive damages (pain and suffering). One thought, have you tried to find a registered agent for this company which is local? If you, their jurisdiction claim is out the window. Here is a good link: http://www.residentagentinfo.com/
Re: Desparately Need Help with Moti That is an invaluable resource for ALL Creditnetters - thank you! If it's not in the FAQ - it definitely should be! Mommy2cats
Re: Desparately Need Help with Moti Punitive is not pain and suffering. Punitive = punishement. It is designed to dissuade similar behavior by awarding money due to breaking the law. I.e. $1,000 per violation for pulling reports illegaly is punitive in nature as it is not based on any damages physical or emotional, but simply designed to punish violators, and dissuade others from engaging in the behavior.
Re: Desparately Need Help with Moti Mommy2Cats, Arizona Revised Statutes: http://www.azleg.state.az.us/ars/44/title44.htm Scroll down and click on Article 6, Consumer Reporting Agencies -- beginning at 44-1691. Though these statutes are specifically listed under Consumer Reporting Agencies, several address information furnishers that I think you can use: 44-1695. Liability http://www.azleg.state.az.us/ars/44/01695.htm 44-1696. Unlawful acts; classification http://www.azleg.state.az.us/ars/44/01696.htm Sassy
Re: Desparately Need Help with Moti Could you make the argument as well that the SOL for enforcement has long since expired, 6 years for written contracts. Understanding you paid it off and owe nothing, but the reporting itself is beyond the time frame where any action could have been taken so their only purpose in continued reporting is punishment for having previously defaulted. 7 years is 7 years -- that's credit hell, you've done your time. You could argue that, if the Judge doesn't find for you and grant relief, he would be allowing them to further punish you with derogatory information beyond the federally established timeframes. I'd think that would be unfair and deceptive. The FCRA doesn't have unfair and deceptive provisions but Arizona sure does. Have you appeared before Judge Butner before? I'd love to be a fly on the wall if you would be comfortable with that. Sassy
Re: Desparately Need Help with Moti One more, thought this may help you and him both with the venue and jurisdiction. It's a letter that caseybjones previously posted after having filed in small claims court and the venue was challenged. The judge at first agreed, then reversed her decision. http://consumers.creditnet.com/straighttalk/board/showthread.php?s=&pgnum=1&postid=178620#post178620 Jefferson Burns Plaintiff CASE NO. CV-02-402 Equifax Information Services ORDER RE JURISDICTION Defendant THE ABOVE ENTITLED matter came on for trial in small claims court on May 14, 2002 before the undersigned. Both parties appeared. At the beginning of the proceeding, the court noted that this matter was brought under Federal Law, specifically under the Fair Credit Reporting Act, 15 USCS 1681. The court stated that it believed such actions had to be filed in United States District Court and dismissed the matter without prejudice for lack of subject matter jurisdiction. The court further stated that plaintiff was free to research the issue and re-file in small claims if he could present the court with authority for proceeding in state court. The court has since reviewed 15 USCS 1681 nd the cases interpreting it and concludes that its initial ruling was in error. Under 15 USCS 1681p an action to enforce any liability under the Fair Credit Reporting Act may be brought in either state or federal court. The court notes, however, that only monetary damages are recoverable in small claims court. Damage for pain and suffering and punitive damage awards are prohibited. Idaho Code 1-2301. Plaintiff is limited to recovery of his actual out of pocket expennses. The court can not discern from plaintiff's claim the nature of the damages he is seeking. In the event that plaintiff is asking for damages for humiliation, mental distress, or the like, small claims is an inappropriate forum and the matter should be re-filed in either magistrate or district court depending on the amount of damages sought. NOW THEN IT IS HEREBY ORDERED that plaintiff may, without additional filing fees and without the need to reserve the defendants, re-note this matter for trial in small claims court. SO ORDERED THIS 14th day of May 2002. Barbara Buchanan Sassy
It seems to e that Learned Counsel for the other side has trouble reading the English Language. He cites ARS 28-1552. That part of Arizona Revised Statutes is in the section of the law dealing with Criminal and Taffic cases heard in Justice Courts. I don't think that's germane. He cites ARS 22-201(A). He forgot to read ARS 22-201B which specifically assigns jurisdiction to the Justice Courts: 22-201. Jurisdiction of civil actions A. Justices of the peace have jurisdiction only as affirmatively conferred on them by law. B. Justices of the peace have exclusive original jurisdiction of all civil actions when the amount involved, exclusive of interest, costs and awarded attorney fees when authorized by law, is five thousand dollars or less. Your pleading does not bring this out. Both FDCPA and FCRA assign jurisdiction to "any State Court of Competent Jurisdiction" and ARS 22-201B seems to assign that to Justice Courts. As far as the Counsel's allegation that Arizona Courts have no Jurisdiction over a New Hapshire defendant, I refer you to ARS 12-401-1: 12-401. Venue No person shall be sued out of the county in which such person resides, except: 1. When a defendant or all of several defendants reside without the state or their residence is unknown, the action may be brought in the county in which the plaintiff resides. As far as his allegation that the defendant is not a Debt Collector under the FDCPA, I would argue that the defendant is the guarantor of a loan made by another entity and is in the process of collecting after a default, and took no part in the collection of the account before default. These are adges of a Debt Collector under FDCPA. The fcat that the defendant purchased the debt in a status of default is further evidence of the defendant meeting the definition of debt collector in FDCPA. Based on your poroposed response, I do feel taht the attorney is correct in that you are bringing this suit under the wrong statute. Your arguments are all FCRA but the suit is under FDCPA. make up your mind.
