Inc., changed the precedent relied upon by the Court. Plaintiff newly argued the recent case of Brown v. The Opinion & Order at hand revisits the statute of limitations basis. Plaintiff argued the period should start when the lawsuit is served, but the Court rejected this argument. Stolman, which held in similar cases based on collection lawsuit activity, the limitations period begins to run when the complaint is filed. Further, the court applied a Ninth Circuit case, Naas v. In the original order dismissing the case in part on the statute of limitations, the Court applied Supreme Court case law that the limitations period begins to run on the date the alleged violations occurs, not when discovered. The Court initially granted Defendants’ motion to dismiss based on Plaintiff’s claims regarding the amount of the debt as barred by the one-year statute of limitations, and that the erroneous motion for default did not constitute a violation as it was remedied by the state court denying the motion. Plaintiff’s FDCPA claims were that in the underlying suit, Defendants misrepresented the amount of the debt, and that moving for default was unfair and unconscionable. The motion for summary judgment was subsequently granted and a judgment was entered. There seemed to be some confusion as to where and how Ingersoll was served in the collection suit as Ingersoll alleged he did not live at the address where the summary judgment motion was served, but the record showed that the motion had been properly served by email. In Ingersoll, Plaintiff alleged in the underlying collection lawsuit, he had filed an answer and the case was assigned to arbitration, but thereafter the collection firm moved for default (which was not granted) and then moved for summary judgment in the arbitration. However, a “belt and suspenders” approach was applied, and the substance was also addressed. First, the Court covered the procedural shortcomings of Plaintiff’s timeliness. Brandsness, Brandsness & Rudd, P.C., et al efficiently disposed of Plaintiff’s new argument and clipped the wings of any appeal. The short and concise Opinion & Order by Judge Aiken in the matter of Ingersoll v. WHAT THIS MEANS, FROM XERXES MARTIN OF MARTIN GOLDEN LYONS WATTS MORGAN: More than a handful of FDCPA cases are filed each year based on an underlying collection suit.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |