The first thing I do when a potential client comes with a lawsuit on a debt is to check to make sure it was filed in the correct place. I do this check because a lawsuit filed in the wrong place is usually a violation of the Fair Debt Collection Practice Act (FDCPA). Finding a violation of the FDCPA is, at the very least, great leverage to use against a debt collector.
To avoid violating the FDCPA, suits to collect a consumer debt must be filed in one of two places:
- Where the contract was signed; or
- Where the consumer lives when the suit was filed.
When cases are filed in district or county court, the debt collector needs to file in the correct county. When the case is filed in justice of the peace (JP) court, the debt collector needs to file in the correct justice of the peace precinct. I usually see this problem with suits filed in JP court and rarely in county or district court.
I first determine what JP precinct the potential client lives in. Some counties, like Travis, publish maps. Others, like Williamson, have an address search. For most counties, the only way to discover is to call a JP’s office and politely ask. If the suit was filed in the same precinct that the potential client lives in, the debt collector filed in the correct venue and did not violate the FDCPA.
If the precincts are different, I need to figure out where the contract was signed. Was it signed a business? If so, what precinct is that business in? Was it signed at a previous address? If so, what precinct is that residence in?
If a debt collector sues in the wrong place, a motion to transfer venue is usually appropriate. And I will ask my client to consider suing the debt collector in federal court for violating the FDCPA.