Sassy and others, I've been playing around with my Motion to Deny Defendant's Motion to Dismiss (for jurisdiction) and Motion for Sanctions. (anyone interested can see the court filings at CreditCourt). Sassy - you've helped me a LOT! I'm not quite sure this makes sense - would love for any opinions! I may have to post the motion in a reply - as this message is too long.....
VERDE VALLEY PRECINCT, STATE OF ARIZONA IN AND FOR THE COUNTY OF YAVAPAI Mommy2cats, PLAINTIFF V. NH HIGHER EDUCATION ASSISTANCE FOUNDATION, DEFENDANT Plaintiffâ??s Motion to Deny Defendantâ??s Motion to Dismiss and Motion for Sanctions NOW COMES the Plaintiff, Pro Se and prays this Honorable Court to Deny the Defendantâ??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. â??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. Plaintiffâ??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 Plaintiffâ??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: â??Plaintiffâ??s Complaint fails to establish either this courtâ??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 on next reply...)
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 â??without merit and intended merely to harass Defendant, Defendant also requests the Court award Defendant appropriate sanctions including costs and attorneys fees of $500.â? 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 Plaintiffâ??s credit reports in November, 1996. As of the filing of Plaintiffâ??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 Defendantâ??s reporting was done in such a manner that the Plaintiff was 120+ days CURRENTLY late on those zero dollars. This reporting affected Plaintiffâ??s FICO score as though it was a CURRENTLY derogatory account. This inaccurate reporting damaged the Plaintiffâ??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 Plaintiffâ??s credit report. 15 U.S.C. §1692k(a)(3) provides that: "â?¦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 attorneyâ??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 Plaintiffâ??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 Defendantâ??s Motion for Sanction should be denied. WHEREFORE, the Plaintiff hereby requests this Honorable Court for the following relief: 1. Deny the Defendantâ??s Motion to Dismiss 2. Deny the Defendantâ??s Motion for Sanctions 3. 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.
I hope I got everything in the right places. I don't want to go too overboard (and bore the Judge). My points are that I want their Motion to Dismiss due to jurisdiction to be denied, and their Motion for Sanctions (saying my filing was harrassment) to be denied. I'm not sure what I wrote makes total sense to me - so any thoughts or opinions are appreciated! Again, all their filings are on CreditCourt if anyone is interested. Once I get the final draft of this Motion done - I will post it there as well. I want to win this badly!!!!!! Mommy2cats
Hi Mommy2Cats!!!!!! I'm printing this out so I can absorb it, fully. I'm hoping you'll post again directing everyone's attention to your Motion, especially those that have filed suits and drafted complaints. LizardKing, PsychDoc, Whyspers, Breeze, Christi, LKH, KHM, Marie, LisaMc. I just want you to get maximum input and responses. I REALLY want you to win this bad as well! It is amazing to me the amount of brilliance and intelligence on this board! The basic outline of a claim: Cause -- what happened that you are suing for Cause of Action -- the legal basis for filing suit; the cause of action (the law(s) they violated) upon which relief can be granted; the law that provides a remedy. Jurisdiction and Venue Case -- chronological listing of actions and violations; the factual basis of the claim or facts creating the legal theory. Summary Relief and Remedy -- what you are entitled to and are asking the judge to award you and based on what law. You've got all elements except at the end -- what are you asking the court to order for you, based on what law, and what law gives the judge the authority to do it? The majority of cases that I have read that have been lost of dismissed have been for: failure to state a cause of action upon which relief can be granted failure to state the facts or legal theory that entitles the relief failure to state the legal claim for which the court can grant relief. That's just procedural chickening, semantics I say, because one side has an attorney and they are interested in winning instead of justice. But, it also is where the attorneys seem to focus with pro se filings. As long as the law they broke and the law you are citing that allows the judge to rule in your favor are clear, the rest will work itself out in the body of the complaint and testimony. And a fair judge (thinking of Christine again) that always helps! Sassy
So... I need to restate the ending? I will have to admit to playing around with this so much - I'm not sure what I wrote makes sense to me (ha ha). Smiles, Mommy2cats
It makes sense, no worries! Here's how LizardKing did the end, this was for Dell an OC as well, the body sets out what they did wrong and why, the complaint. Then you have to tell the judge where the law is that allows him to rule in your favor and in what ways. The judge won't go find it for you and decide it fits for his ruling. This says to the Judge these specific laws give you the authority to rule in my favor and award me these things: 42. 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. 43. Plaintiff (Lizardking) has a negative Experian credit score of 623 as of this date and has been denied credit at reasonable rates because of the willful noncompliance actions and/or inactions of the defendants. 44. 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. 45. Plaintiff (Lizardking) has a negative Experian credit score of 623 as of this date and 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 $1,000 plus costs and fees. Whysper's asks for the derogs to be removed as well: 13. Plaintiff seeks the immediate and permanent removal of the derogatory account listed by the Defendant on her Experian consumer report, as well as a permanent injunction against Defendant to bar them from reporting it to any other consumer reporting agency. Whysper's link (FDCPA): http://www.proselitigant.net/mod.php?mod=userpage&menu=1102&page_id=8 LizardKing's link: http://consumers.creditnet.com/straighttalk/board/showthread.php?threadid=31630 I think this is the biggest difference between the two courts, besides the attorneys and ability to appeal. You aren't expected to know what the laws are in small claim's court nor the ins/outs of civil procedure -- you state what you think they did wrong, why and what you want for it; the other side responds; the judge decides. In the civil court, you have to present the laws as part of your case for the judge. Sassy
