When filing a lawsuit it is important that it be filed in the proper court. This pertains to any type of action, where it be a personal injury case, criminal matter, or even probating a will. Actions under the Fair Debt Collection Practices Act (“FDCPA”) are not any different. Proper venue is clearly stated under 15 U.S.C. Section 1692i(a). This section states:
Any 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.
If an action is filed anywhere other than where the contract was signed by the debtor or where the debtor is living at the time the lawsuit is filed, then the action should be dismissed. In addition to these restrictions, Indiana has ruled on what “judicial districts” in which a FDCPA action can be brought.
The case, Mark Suesz v. Med-1 Solutions, LLC, was brought before the United States District Court for the Southern District of Indiana, Indianapolis Division on March 21, 2013. The court concluded that the for the purposes of the venue provision under the FDCPA, the judicial structure in Indiana provides that the Circuit Courts are considered “judicial districts” while small claims courts in townships are not.
In a similar case out of Illinois, Newsom v. Friedman, the district court found that the FDCPA required debt collectors to file in the appropriate Circuit Court. However there was not any requirement that the debt collector file in a particular sub-district within the Circuit court.
Suesz, was a putative class action suit was brought by the plaintiff, who claimed that Med-1 filed its lawsuit in the incorrect judicial district, violating the FDCPA. Med-1 contended that bringing the action in Marion County (not in the small claims court where the debtor resides) was the correct venue. However, Suesz believed that the scope of venue should be narrowed to a small claims court in a township.
The state constitution of Indiana provides under Article 7 that the state is divided into judicial circuits. Small claims cases may be transferred from one township to another by the Circuit Court Judge. As with Illinois and the Newsom case, the small claims courts in the townships of Indiana were considered by the court to be set up for “administrative purposes.” Small claims cases can be venued and decided in any township in the county. They are however not courts of record and cannot hold jury trials.
For FDCPA purposes, township small claims courts are not “judicial districts.” Therefore, when Med-1 filed in Pike Township, located in Marion County, the county where the debtor resides, it did not violate the FDCPA. It should also be noted that a debtor collector who mistakenly brings an action in the wrong venue is not violating the FDCPA maliciously—this is a trial tactic as opposed to a collector tactic—and will not be civilly liable unless there is a pattern of abuse shown.
We understand the frustration you may have when dealing with an aggressive debt collector. We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 if you prefer to talk to a trained professional over the phone instead, or of course, visit our website at http://www.krohnandmoss.com/.