OMG!!!!!!!!!!!!! I really hope this is the end. http://www.azleg.state.az.us/ars/22/00503.htm 22-503. Jurisdiction; exceptions A. The small claims division has concurrent original jurisdiction with the justice court in all civil actions in which the debt, damage, tort, injury or value of the personal property claims either by the plaintiff or defendant does not exceed two thousand five hundred dollars, exclusive of interest and costs, and in actions in which a party seeks to disaffirm, avoid or rescind a contract, or seeks equitable relief, and the amount at issue does not exceed two thousand five hundred dollars. B. The small claims division does not have jurisdiction over the following: 1. Those matters excluded from justice court jurisdiction as provided in section 22-201. 2. Actions involving claims of defamation by libel or slander. 3. Actions in forcible entry, forcible detainer or unlawful detainer. 4. Actions for specific performance. 5. Actions brought or defended on behalf of a class. 6. Actions requesting or involving prejudgment remedies. 7. Actions involving injunctive relief. 8. Traffic violations and other criminal matters. 9. Actions against this state, its political subdivisions or an officer or employee of the state or its political subdivisions in his official capacity. 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. VV Justice Court has jurisdiction over the Defendant, a NH Foundation, based on it's 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. Specificially, 44-1694, Correction of credit reports, addresses the procedure for disputing items included in a credit report. If a consumer remains unsatsified 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. 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. 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." They've not changed their name or anything that would make them subject to the FDCPA provisions? Where does this reference come from, did your original complaint reference the FDCPA in addition to the FCRA? "Additionally, the FDCPA concerns actions involved in collecting a debt, not credit reporting, which falls under another statue entirely. " Exactly, the FCRA which addresses the duties and responsibilities of furnishers of information (Defendant) and is further reinforced and defined by Arizona Revised Statutes. "For all these reaons, this Complaint should be dismissed and Defendant should be awarded costs and attorneys fees. " Sassy
Re: state laws for credit reporting Oh Wow - you are incredible!!!!! When this is all said and done - I think I'm going to have to buy you dinner!! Okay, NHHEAf (the Plaintiff) sent a letter to the Court asking to move to Civil. (from SC to Civil). They did it as a letter stating it was a Special Appearance. They didn't do it in "Motion" format. The Court did do an Order permitting the case to be moved pursuant to their paying their $29 fee. After much delay with their fee (they kept sending in the wrong amount) I got the Motion to Dismiss/Sanctions. My Complaint was worded as follows: (small little space on the SC form "My written credit report was received on 6/25/00. In violation of the FCRA, NH Higher Education failed to report my dispute to the credit bureaus, failed to correcttheir incorrect reporting, and then verified this incorrect data. They then willfully ;aced incorrect data on my credit file in response to my dispute. On the Answer form itself, NHHEAf pput in the Answer section: "(1) This Court has no jurisdiction over the defenant or with respect to claim, and this Anser and Special Appearance are filed subject to the defendant's reservation of rights to assert special pleas without submitting to the jurisdiction of this Court. (2) All actions of the defendant complied in all respects with applicable law and regulation. And then I got the Motion to Dismiss for Lack of Jurisdiction and Motion for Sanctions that I posted. It looks like you found some WONDERFUL information for me to use in my Motion to Deny Defendant's Motion to Dismiss... So... that statute they quoted is for VEHICLAR cases? Again... you are wonderful! Can you tell us a little how you found this - so others will know how to properly search? I'd gone to some of the links you'd given before and put in "jurisdiction" but all I got was a list of things with no description. I'd started wading through those but didn't find anything pertinent. You have found some REAL stuff that it looks like I can use in my Motion. I'm going to read through again all that you wrote - a TON of interesting things!!!! You are amazing! Mommy2cats
Re: state laws for credit reporting In their Motion they are going on and on about the FDCPA - when in my Complaint I said the FCRA - although some of the items I listed probably do fall under FDCPA. However, MOST of my reasons have to do with credit reporting. I might not be able to bring FDCPA actions against them as they are an OC but it surely seems I have FCRA issues (biggest of all is that reporting for six years too long!). So... it appears that I take your advice and first pick apart the jurisdiction issue, their request for sanctions - and then move onto the issues and ask for a jury trial and raise the amount to $5,000? I thought I only had until this Friday to answer this - but I do have until Sept. 30th - so that gives me time to put together a KILLER Motion (thanks to you). One of the things I want to do this week is to post everything - their letters, motion, my draft motion, on CreditCourt. (again - hoping it will help others too). You're right - I doubt they'll want to appear from NH - although they did hire an attorney from Phoenix - but it may be that he doesn't know Consumer Law well - or he'd not have quoted that statute that really has to do with Vehicles - unless they were trying to pull a fast one. I'm excited - this is going to be interesting! As long as I don't get hit with sanctions or attorneys fees - I have nothing to lose. (and three cheers for SassyAZ again) Mommy2cats
Re: state laws for credit reporting Mommy2Cats, I just found something on the Motion for Sanctions and attorney's fees this morning. I'm glad you're online, hang on for 3 minutes and I'll get cut and paste and get it posted. Sassy
Re: state laws for credit reporting Mommy2Cats, 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. From: http://www.franzen-salzano.com/publications/FDCPA Defense.doc Defense Strategies in Fair Debt Collection Practices Act Litigation Attorney Fees May be Recovered When Suit Brought To Harass Collector 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). " The goobs shouldn't have even made this Motion for sanctions and attorney's fees as it is dependant on you losing in court firstly and the Judge having decided not to award attorney's fees. Secondly on a finding of harassment and bad faith by you. The goobs would have to first prove malice on your part and with legitimate questions of reporting they can't make the claim for malice. "To prove the requisite malice, the defendant must show that the plaintiff: (1) had no basis for the subjective belief that the defendant violated the Act; (2) the plaintiff did not entertain a subjective belief that such act occurred; and, (3) suit was brought to harass the creditor. This rigorous standard is applied narrowly by the courts to avoid discouraging private litigation which is the primary enforcement mechanism of the FDCPA. It should be noted, however, that malicious prosecution claims and Rule 11 sanctions provide a far more lenient standard and much higher probability of success than the §1692k(a)(3) provision." Here's the best part: "Characterizing a cause of action under this provision as a "counterclaim" has been met with some hostility by the courts. Some courts hold that the award or attorneyâ??s fees under this provision amount to "relief" as opposed to a cause of action. In these jurisdictions, a defendantâ??s claim for attorneyâ??s fees should properly be raised by motion after defendant wins the underlying suit, rather than by counterclaim." Comes now Mommy2Cats... 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. I dunno, I'm not sure I like the wording, but I'm posting anyway so you can play with it and hopefully put your mind to ease. Sassy
Re: state laws for credit reporting SassyAz, If you only KNEW how much you have helped me. You said that you hoped you could put my mind at ease. I must admit when I first got their Motion I felt nauseated. Of course I calmed down - but I was still worried that I couldn't defend against their Motion. I actually read your post at about 3:30 a.m. last night - felt like doing a Hampster Dance or something because it gave me some fuel and hope. Slept pretty well because of you. I've got some time to play around with the wording - it's been a loooong time since I wrote a motion. (I was a legal secretary years and years ago - so I do have some hope of not sounding like a total idiot - but then again - hey - as long as I have some good case law and arguments - I AM appearing pro se. All you've given me is a lot to digest - and I'm going to take some time this week to work it all into a really KILLER motion! (and again - I'll post the final draft). I know others have run up against the jursdiction thing - so I'm hoping this will help others with it too. I LOVE this board - what a GREAT resource! (and for those few trolls out there - you will note that I owed NOTHING on this loan - was paid six years ago......) I know I've said it a ton of times already - but I do thank you so VERY much, Sassy! Mommy2cats
Re: state laws for credit reporting Mommy2Cats, Thank you, you are so sweet. I really am glad that I was able to help. I just did a google search on fcra and venue, fcra and jurisdiction, the same with fdcpa, and then backtracked to find the parts applicable to Arizona. It's hard to find stuff in the statutes unless you know it's there somewhere. Sometimes I just go to the page listing all the titles and start clicking on whatever I think is close until I find it. I was just thinking of the information I would need if I were in your shoes and started surfing on google. And that, you're likely going to have to go further and assume that neither the judge nor your goobs know anything about the FCRA -- obviously the goobs don't as they paid $500 bucks for a special appearance from a Phoenix lawyer that couldn't even figure out the right statute. VEHICLE VIOLATIONS, lol lol, don't you love that! I think their whole Motion is rude and disrespectful; I hope the judge thinks the same. It sort of has a talking down tone to it. It reads like, not only does the Plaintiff not have a clue about what laws apply, she filed a claim in the lowliest of courts and before a peon of a judge. Lawyers are so arrogant and that the Judge too is a lawyer can only help you, especially if he reads the Motion with the same tone I did. Beyond the tone, it's obvious to me he couldn't be bothered to do one iota of common sense research. Like maybe bother to find out if there was some teeth to the FCRA or if you indeed had a claim, do you think he even read your claim? instead of babbling on about the FDCPA not applying. I think neither the goobs nor their lawyer noticed the changes to the FCRA that did indeed make them responsible for their reporting. I thought these would help the Judge understand, they would help the goobs and goob lawyers to, if you feel like sharing, maybe it will help them see where they dropped the ball and they'll settle -- otherwise, let them figure it out the hard way ;-) From the FTC: Credit Reports -- What Information Providers need to know: http://www.ftc.gov/bcp/conline/pubs/buspubs/infopro.htm Fair Credit Reporting (you did what you were supposed to do): http://www.ftc.gov/bcp/conline/pubs/credit/fcra.htm A Summary of your rights under the Fair Credit Reporting Act: http://www.ftc.gov/bcp/conline/edcams/fcra/summary.htm The intent of the amendments: http://www.ftc.gov/opa/1997/9709/fcra929.htm Employers, Creditors and Credit Bureaus Have Major New Responsibilities I really like this first link it is specific to Arizona and walks you through everything you need to file a complaint and represent yourself; the second is specific to Arizona as well: http://www.asua.arizona.edu/asua/P&S/Legal/sc_ct.html http://www.justicecourts.maricopa.gov/smallclaims.htm http://www.nolo.com/lawcenter/ency/...901/catID/8F965511-320B-429E-AFF92326E148C549 Who you can sue and what you can sue for: http://www.creditinfocenter.com/eBooks/PoorMansClassActionLawsuit.shtml I'm sure I didn't answer all that you posted but I will. I'm scattered today, in and out, running, and posting on the fly, lol, sorry I hope you can relate. Sassy
Re: state laws for credit reporting Mommy2Cats, 2/2002 on personal jurisdiction!!!!! and the Ninth Circuit as a perk! A Utah law firm that ordered a credit report on Nevada residents had sufficient contacts to warrant personal jurisdiction in Nevada. This is relevant to the long-arm statutes. The district court had dismissed both cases for lack of personal jurisdiction. The Ninth Circuit, reversed. Comment: Attorneys conducting activities in their home state which affect out-of-state residents could find themselves defending their actions in a distant forum. It's a pdf file: http://www.longlevit.com/updates/PLUpdate/PLU116.pdf Sassy
