Calvary SPV - Notified I’m Being Sued Via Text

[Anonymous]

Following
Curious how it will turn out.
GL OP!

[bass_playr]

OK, this is an example of why I am often reluctant to trust lawyers.

The FDCPA venue provision has only been violated if you did not live in CA when this debt was originated.  Here's the actual wording of that law:

"(a)VenueAny debt collector who brings any legal action on a debt against any consumer shall—

(1)in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2)in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity—

(A)in which such consumer signed the contract sued upon; or

(B)in which such consumer resides at the commencement of the action."

(2)(A) clearly shows that they can take legal action against you in the jurisdiction where you originated the debt.  So, unless you did not live in that county in CA when the account was originated, there is no FDCPA violation there.

If I were in your position, I would instead focus on another provision of the FDCPA---and other laws as well.  I would focus on the service.  If the court docs--the proof of service--show them claiming that you were duly served, you have them on a big violation of multiple laws.  FDCPA states the following:

"§ 807.  False or misleading representations

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt....."

For you, that means that if they used a false claim of proper service to the court, then they have indeed violated this provision.  You could also make a case for fraud upon the court--which can often be enough in the proper format to get the court to issue sanctions against their attorney.  

The trick to making debt collectors go away in a case like yours is to make enough noise about their violations of law that the only choice they really have is to drop the matter before they get themselves in far more trouble than the debt is worth.  Depending on what that proof of service says, you may very well have enough to do that.  But the venue provision?  If you go down that road, you can expect your claim to be dismissed due strictly to the written letter of the law that permits them to sue you there.  Of course, that depends on where you lived when you originated the debt.  That proof of service is what everything is riding on at this point.  If you search in Google Scholar, you will find federal and state court cases in PA regarding this venue provision.  I'm not an attorney, but IMHO, this attorney is telling you something that the law and the courts do not agree with.  

[RobertEG]

AS I read the posted scenario, the debt was apparently obligated while you were a resident of California, and you moved three years ago to another state.  

Unless the debt was secured by real estate property, the debt collector had the clear option under superceding federal law (FDCPA 811(a), Venue) to bring civil action in either the jurisdiction of current residence of the consumer, or in the jurisdiction where the contract that created the debt was executed.  Thus, there does not appear to by a violation of the FDCPA, or an issue of improper venue.

Perhaps consultation with an attorney who specializes in consumer debt law would be prudent.

If the debt collector does obtain a civil judgment in CA, they would have to first "domesticate" the judgment in your current state in order to then enforce the judgment, but that is usually only a formality.

If the notice of the civil complaint was not properly served, that is a separate matter that your attorney can deal with.

If you moved out of state and did not notify your creditors of your change of address, they may have served notice via permissible means such as publication.  I would not assume that they failed to comply with service requirement simply becuase you did not receive personal service.  What are, for exampe, the notice requirements in CA after they have first atttempted personal service at your known address, and you could not be located?

[bass_playr]

The service requirements are only half the story.  The parties must be subject to the jurisdiction of that place in order for that place's civil procedure to apply.  Jurisdiction comes first.  If a court has no jurisdiction over the parties, then that court cannot rule on whether or not proper civil procedure has been applied regarding those parties.  

Also, regarding service, the burden is not upon the consumer to ensure that any and all current and potential future creditors/debt collectors have their up to date mailing address.  The burden rests with the party that is effecting service.  If the plaintiff here faked the POS, that's fraud, fraud upon the court, and at the least also a violation of FDCPA, which is why I said that the POS document is the key to this issue.  CA allows three methods of service.  First is personal service.  Second, if they have identified the correct address for the defendant, they can leave the summons with a person at that address other than the defendant that's not a minor.  Third, if all else has failed, they can "nail and mail".  But that's not the end of it.  There have been cases in CA where alternative service, like nail and mail, were later ruled to be insufficient in light of evidence that the defendant had moved prior to, and was therefore never served.  CA has something called the "presumption of proper service".  In order to vacate a judgment due to improper service, you need to overcome that presumption.  Moving out of state three years prior to the lawsuit would accomplish that.  So even if they attempted personal service, found no answer, and did a nail and mail, the fact that the defendant had no hope of discovering the service would be sufficient under the correct circumstances.  There is case law to that effect.

[vntrsc]

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@bass_playr wrote:

The service requirements are only half the story.  The parties must be subject to the jurisdiction of that place in order for that place's civil procedure to apply.  Jurisdiction comes first.  If a court has no jurisdiction over the parties, then that court cannot rule on whether or not proper civil procedure has been applied regarding those parties.  

Also, regarding service, the burden is not upon the consumer to ensure that any and all current and potential future creditors/debt collectors have their up to date mailing address.  The burden rests with the party that is effecting service.  If the plaintiff here faked the POS, that's fraud, fraud upon the court, and at the least also a violation of FDCPA, which is why I said that the POS document is the key to this issue.  CA allows three methods of service.  First is personal service.  Second, if they have identified the correct address for the defendant, they can leave the summons with a person at that address other than the defendant that's not a minor.  Third, if all else has failed, they can "nail and mail".  But that's not the end of it.  There have been cases in CA where alternative service, like nail and mail, were later ruled to be insufficient in light of evidence that the defendant had moved prior to, and was therefore never served.  CA has something called the "presumption of proper service".  In order to vacate a judgment due to improper service, you need to overcome that presumption.  Moving out of state three years prior to the lawsuit would accomplish that.  So even if they attempted personal service, found no answer, and did a nail and mail, the fact that the defendant had no hope of discovering the service would be sufficient under the correct circumstances.  There is case law to that effect.

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Just an FYI, CA allows out-of-state parties to be served in accordance with the following:

CCP 415.40

A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and of the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt. Service of a summons by this form of mail is deemed complete on the 10th day after such mailing.

Whether or not Cavalry will bother to comply remains to be seen.  

[bass_playr]

"Just an FYI, CA allows out-of-state parties to be served in accordance with the following:"

Actually, though, at this time, it would appear that they did not attempt to serve the OP out of state.  This is why the proof of service is key.  If they had sent the summons to the OP's actual address, they would have received it by now and would have had to sign for it---the law requires return receipt requested.  So, since the OP never received any summons at their home address, then one of two things happened here.  One, they either claimed acceptable service took place within CA, or they would have sent the summons out, but still to an incorrect address.  Assuming the OP never got notification of any summons, there really is no other option.  And, unless they sent the summons to the correct address, OP has sufficient reason to show that service was not proper.  

The only question now is whether or not they lied about service, or whether it was an honest mistake.  As I said, the POS should clear this all up quickly.  

[vntrsc]

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@bass_playr wrote:

"Just an FYI, CA allows out-of-state parties to be served in accordance with the following:"

Actually, though, at this time, it would appear that they did not attempt to serve the OP out of state.  This is why the proof of service is key.  If they had sent the summons to the OP's actual address, they would have received it by now and would have had to sign for it---the law requires return receipt requested.  So, since the OP never received any summons at their home address, then one of two things happened here.  One, they either claimed acceptable service took place within CA, or they would have sent the summons out, but still to an incorrect address.  Assuming the OP never got notification of any summons, there really is no other option.  And, unless they sent the summons to the correct address, OP has sufficient reason to show that service was not proper.  

The only question now is whether or not they lied about service, or whether it was an honest mistake.  As I said, the POS should clear this all up quickly.  

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The OP wrote that he has retained an attorney.   Hopefully, the attorney is familiar with the FDCPA (just in case).

[bass_playr]

Unfortunately the lawyer does not appear to be as well versed in FDCPA as we would hope.  OP says the lawyer told him that he has a "clear FDCPA violation" where there does not appear to be one at all.  Anyone who can read can see that FDCPA permits a suit to be filed either in the jurisdiction where the debt was originated or where the consumer currently resides.  So, OP went to an attorney and that attorney, knowing that OP used to live in CA, has determined that it's a "clear FDCPA violation" for the debt collector to sue OP in the jurisdiction where OP lived at that time that the debt was started.  

I hope that OP updates us on this as new info comes available.