“Where can a debt collector sue me?” and “Where can I be sued?” are questions I am often asked.
Unless the potential lawsuit arises from : (1) a consumer debt; and (2) the potential FDCPA defendant is a debt collector, the state’s venue provisions apply.
But, if the debt is a consumer debt and the plaintiff is a “debt collector”, then the Fair Debt Collection Practices Act (“FDCPA”) limits where the debt collector can sue.
If the lawsuit is a lawsuit to enforce (foreclose) on an interest in real property, then the lawsuit must be filed in the judicial district or similar legal entity (in Florida, the “legal entity” is usually a county) where the real property is located.
All other lawsuits to collect consumer debts must be filed only in the judicial district or similar legal entity :
(1) in which the consumer signed the contract sued upon; OR
(2) in which the consumer resides at the time the lawsuit is filed.
If there is not a “signed” contract, the debt collector can sue the consumer only in the county where they live.
Suppose a consumer opens a credit card account in New York, then moves to Osceola County, FL, and subsequently moves to Orange County, FL. A debt collector files suit in Osceola County, FL after the consumer moved to Orange County (Orlando), Florida. The debt collector (including the lawyer who filed the lawsuit) violated the Fair Debt Collection Practices Act (“FDCPA”). The FDCPA provide debt collectors a “bona fide error” defense which allows the debt collector (including the lawyer who filed the lawsuit) to prove that the violation was a bona fide error which occurred despite procedures which prevent such violations. The debt collector would have the burden of proving each element of their defense.
If you are being sued in a county other one than a county permitted by the Fair Debt Collection Practices Act, do NOT ignore the lawsuit.
If you are a Florida resident and believe you are being sued in the “wrong” county for a consumer debt, you are welcome to contact me by completing the Collection Agency Harassment Form in the right hand column of this page or by calling my assistant. I will contact you to discuss your situation and whether I may be able to help you.
(C) 2011 Donald E Petersen
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