Judge Grants MTD in FDCPA Case Over Alleged Improper Service in Underlying Collection Suit

A District Court judge in Arizona has granted a defendant’s motion to dismiss after it was sued for allegedly violating the Fair Debt Collection Practices Act by serving the plaintiff with a summons for a collection lawsuit in the incorrect venue, ruling that the plaintiff’s failed attempt to have the collection lawsuit dismissed because of the issue with the service of the summons was her one shot at making her case.

A copy of the ruling in the case of Cheek v. Gurstel Law Firm can be accessed by clicking here.

The plaintiff was sued by the defendant in regards to an unpaid credit card debt. The lawsuit was filed in Arizona State Court. The plaintiff alleged that, at the time the collection lawsuit was filed, she was actually living in North Carolina. Two months later, when the plaintiff was visiting Arizona, she was served with a copy of the complaint. She moved to have the collection lawsuit dismissed, alleging it was filed in the improper venue. The state court judge denied the motion, ruling that the plaintiff was residing in Arizona when she was served. The state court judge then granted a motion for summary judgment against the plaintiff.

The plaintiff then filed this suit in federal court, arguing that the defendant violated Section 1692i of the FDCPA by not filing its collection lawsuit in the district in which the consumer was living when she signed the contract or the one in which she was living when the collection lawsuit was filed.

Applying the doctrine of collateral estoppel — which prohibits parties from relitigating identical issues — Judge John Tuchi of the District Court for the District of Arizona made short work of the plaintiff’s arguments. The plaintiff “had the full and fair opportunity to litigate the issue of her residency, the issue was actually litigated, and its resolution was central to the Superior Court’s decision,” Judge Tuchi wrote in granting the defendant’s motion to dismiss.

The plaintiff attempted to argue that her appeal of the underlying collection lawsuit precludes it from being used as grounds in her lawsuit, but Judge Tuchi said that argument is contrary to existing case law from the Ninth Circuit Court of Appeals.

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