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Re: why chat-states exempt from sol


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Posted by lawguy (151.205.69.193) on March 18, 2003 at 10:36:29:

In Reply to: Re: why chat-states exempt from sol posted by Why Chat on March 17, 2003 at 20:19:37:

Whychat,

I am simply offering valid and accurate information here. You are vastly oversimplifying things.

I wish it were as easy you seem to think.

But you seem to be under the impression that every lawsuit is brought by a debt collector on a credit card debt, and so must be brought in the state of the debtor's residence or where he signed the contract.

Clearly this is not always the case.

To clear some things up:

1) Assuming a debt collector sues on a credit card debt, it is likely that the only proper forum would be where the debtor resides. The modern view on credit cards is that the signed credit card application is not the contract being sued upon; rather, there is no signed contract governing the credit card agreement. Hence, since there is no signed contract, a debt collector cannot sue on a credit card debt in the district where the debtor signed the contract, since there is no such district. The only valid forum would be where the debtor resides.

2) However, the venue provision of the FDCPA does not extinguish a court's ability to render a judgment, even if the court is not the proper venue. If a debt collector brings a suit in an improper venue in violation of the FDCPA, the debtor must challenge venue in the suit in his answer, amended answer, or motion for change of venue or to dismiss in lieu of an answer. If a default judgment is entered in a court that did not have proper venue under the FDCPA, this would not be grounds for attacking the validity of the judgment. Improper venue is not grounds for appeal from a final judgment or collateral attack (only for an interlocutory supervisory appeal).

3) If the plaintiff is not a debt collector, the venue provision of the FDCPA does not apply. Any court which has subject matter jurisdiction, personal jurisdiction over the defendant(s), and is a proper venue, may try the case.

4) You also seem to overlook the applicability of forum selection clauses contained in contracts. These clauses can give personal jurisdiction to a court and can establish proper venue (although they cannot give subject matter jurisdiction on a court that lacks it). These are generally binding on a defendant, even in consumer contracts, unless it can be shown that 1) such clause is specifically prohibited by statute, 2) the chosen venue is seriously inconvenient to the parties, 3) the agreement is unreasonable, or 4) the agreement is one of adhesion and did not reasonably notify the parties of the forum selection clause.

Generally, a forum selection clause will supersede a statutory venue provision, although courts are divided over when this occurs. The question has not come up under the FDCPA however, since a forum selection clause is not binding between a debtor and the assignee of the creditor. (It could come up if creditor sold debt via a novation.)

5) Generally, the SOL of the state in which the suit is brought will apply. If that state has a "borrowing" statute (a statute that "borrows" another states SOL), then the borrowing statute might require a different limitations period. Whether a borrowing statute applies to a given suit is determined by the statute itself and the facts surrounding the suit. I have yet to see a borrowing statute that would apply a longer SOL than the forum state's SOL, although it could be possible. Generally, when applied they shorten the limitations period.

6) With regards to your point 3, you must be served in accord with the rules for service of process in the forum state. Usually the "last resort" for service is service by publication in the county of the defendant's last known residence. A recent move to another state could make a debtor subject to service in the state of his last "known" residence.

7) With regards to your point 4, if a default judgment is obtained and you wish to challenge it when they come to your home state to enforce it, you can ONLY challenge it based on a lack of personal jurisdiction by the court that entered the default. If you do this and fail, you can only appeal the ruling on personal jurisdiction, and cannot return to the issuing court's state and attack the judgment on direct appeal. If you challenge the default judgment in the issuing court's state (whether by a motion to set aside or by direct appeal), you cannot then collaterally attack it in your home state.


No, these things are not simple. Otherwise there wouldn't be hundreds of court decisions dealing with these issues.


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