Venue Question in Small Claims

[yaka11]

What is the name of your state (only U.S. law)? Wisconsin

We are being sued by a PayDay Loan Company. We live in the same county where the Contract was signed and where the Payday Loan company is located. The county where the Payday Loan company filed the small claims action is NOT our county. It is a county that is a neighboring county, but still far away.

1. We appeared in court on the court date on the summons. We were called, the judge asked if we are contesting anything, we said 'yes'. The court then gave us a return date and 10 days to file our Answer.

2. We filed our Answer stating that we were objecting to the improper venue, citing the WI Statutes listed at the bottom of this post.

3. On our return date, the ‘pretrial conference’ was with an officer of the court, not sure of her title, but she met us in a small conference room and was really trying to ‘strong’ arm us into just accepting the judgement. She said “there is no room to challenge the venue here because they (payday loan company) has their main branch in our county, so that really isnt even an issue at this point. What do you intend to do here?” We said that we are still challenging venue, had the Statute information and also case example(s). She asked if we had a counter claim (trying to fish for information really), we stated that we surely would not file a counter claim in a court without proper jurisdiction. She then said “You are surely mis-stepping here, you are even using the wrong terms here, you should say venue not jurisdiction.” (Side note, someone correct me if I am wrong, but didnt I use it properly? A court in an improper VENUE does not have JURISDICTION over the case? Right?! Anyway...). She then told us we had to file a Motion to Dismiss based on venue, that just using that in our ‘Answer’ was not proper and that we had 10 days to do so. We would then be given a return date.

4. My question is this: Where do I stand here? Our contract is listed with the address where we obtained the loan, in our own county where we live, in a DIFFERENT county from where they filed. There is no mention of any other offices or addresses in/on the contract. I even checked their Registered Agent in our state, and that is located in even a different county. The Payday Loan company has filed other suits in our own county, same franchise, but different office location. Can a judge/court commissioner really accept the petition in the improper county, even though the plantiff has ‘a branch’ there?

5. We DO have a counterclaim, however, it is really hard on us to go out to this other county to pursue this, its almost 45 minutes away for us, so we were hoping that the judge followed the Statutes and then dismissed the case, and then if the company filed in our county we would file our counter claim. Is this the correct way to go about this?

And Finally,
6. If the judge/commissioner does not dismiss our case due to improper venue, can we then file a Motion to Change Venue? If so, should we have that all typed and ready to go at our next appearance?


Thanks!
Angie


[url]http://nxt.legis.state.wi.us/nxt/gateway.dll?f=templates&fn=default.htm&d=stats&jd=ch.%20799[/url]

421.401 Venue.
421.401(1)
(1) The venue for a claim arising out of a consumer transaction or a consumer credit transaction is the county:

421.401(1)(a)
(a) Where the customer resides or is personally served;

421.401(1)(b)
(b) Where collateral securing a consumer credit transaction is located; or

421.401(1)(c)
(c) Where the customer sought or acquired the property, services, money or credit which is the subject of the transaction or signed the document evidencing his or her obligation under the terms of the transaction.

421.401(2)
(2) When it appears from the return of service of the summons or otherwise that the county in which the action is pending under sub. (1) is not a proper place of trial for such action, unless the defendant appears and waives the improper venue, the court shall act as follows:

421.401(2)(a)
(a) Except as provided in par. (b), if it appears that another county would be a proper place of trial, the court shall transfer the action to that county.


421.401(2)(b)
(b) If the action arises out of a consumer credit transaction, the court shall dismiss the action for lack of jurisdiction.

421.401(3)
(3) If there are several defendants, and if venue is based on residence, venue may be in the county of residence of any of them.

421.401 - ANNOT.
History: 1983 a. 228; 1987 a. 208.

421.401 - ANNOT.
An improperly venued action arising from a consumer credit transaction "shall be dismissed for lack of jurisdiction" under sub. (2) (b). When the court fails to dismiss, the action is invalid. Kett v. Community Credit Plan, Inc. 228 Wis. 2d 1, 596 N.W.2d 786 (1999), 97-3620.

421.401 - ANNOT.
Although voluntarily dismissed, prosecution of improperly venued actions violated the consumer act, and the defendants were prevailing parties under s. 425.308 entitled to attorney fees. Community Credit Plan, Inc. v. Johnson, 228 Wis. 2d 30, 596 N.W.2d 799 (1999), 97-0574What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

[yaka11]

By they way, we are not trying to just 'get out of this debt.'

We have legit defenses, and they have violated several areas of the FDCPA, which according to the WI Consumer Act, even OC's are to follow the FDCPA. We have paid them what we owe, PLUS more than the contracted amount of interest. We DO have valid counter claims, however, we need it to be in our own County so that we can afford to properly defend ourselves and not have to pay to drive 45 minutes every couple of weeks while we defend our case and raise our counter claim.

I just wanted to clarify tht we are not just trying to 'get out of it.'

Thanks!
Angie

[yaka11]

Maybe I posted this in the incorrect place? Should it be in the Small Claims area?

[tranquility]

Venue and jurisdiction are not the same at all. Any court with jurisdiction can hear a case. Venue is claimed in the complaint as to which court with jurisdiction should have the case. You can argue venue with a motion or in your answer (sometimes only with a motion) and the court will decide. Venue is desigened to make things equitable and to enhance expediency in resolving the lawsuit. There are many rules for venue which are competing and a weighing of interests. You will not be able to contest a judgment for lack of venue.

[yaka11]

Thanks for the reply...

From reading our WI statutes, 421.401 (VENUE) Specifically 421.401(2)(b) it states:
"IF the action arises out of a consumer credit transaction, the court shall dismiss the action for lack of jurisdiction"

So, what I 'thought' this meant was that if a small claims action was brought to a court that was in the 'wrong' venue, then that court did not have 'jurisdiction' in the case.

So, I guess going back and reading that statute specifically I am even more confused...

I guess my simple question is:
Can the judge in this case, which was file NEITHER in my county OR the county where the contract was signed, where the contract lists the address of where the contract was signed...can this court really deny my dismissal for 'improper venue' because the loan place happens to have another location in that county? IF they deny our Motion, then at that time can I then file another Motion for Change of Venue?

This county is far away, almost 45 minutes, and it is a HUGE problem for us.

Thanks again for your help!
Angie

[seniorjudge]

[url]http://www.wicourts.gov/about/pubs/circuit/smallclaimsguide.htm[/url]

Read this.

[seniorjudge]

You need to file the motion for change of venue immediately.

You may have waived your objections when you filed your answer.

But try anyway.

Also, you do more research on this, but my extremely brief research on small claims in your state seems to indicate that corporations may not use small claims court. Check it out.

[yaka11]

Thanks again! I have been to that link, and I just went there again to re-read everything, and downloaded and read again the whole file they have on the Small Claims Guide (listed on the bottom of the page of the link you gave me). In there I found:
"• Other civil actions. In other civil actions where the amount claimed is
$5,000 or less, the action should be filed:
For Money judgments:
• For Non-consumer claims:
1. In the county where a defendant resides;
2. In the county where the claim arose.
• For Consumer claims:
1. Where the customer resides or is personally served;
2. Where the customer sought or acquired the money or credit
which is the subject of the claim or signed the document
showing his or her obligation."

So, I am not sure what you mean by corps cant sue in small claims? By reading here, it sure seems as they can, especially in a civil consumer claim????

But back to venue, I have not read ONE thing, either in this 'guide' on the Wisconsin Statutes (listed in my first post) or even in the Civil Court Statutes and Rules, that say it is an OK venue at a location where they have 'another office' other than the 'place where the contract was signed."

So, I am going to file my Motion to Dismiss based on Venue today, and I am writing it up right now...using the Statutes as facts. My question becomes, what happens if they deny my Motion?

The person we met with last week told us that once my Motion is filed, that both of us parties will recieve a letter in the mail with a court date where the commissioner/judge will then make a ruling on that. So if they deny the Motion, then what can I use as an objection? I do have a case example (also listed on my first post, at the bottom of the listing of statutes I pasted)....and I could, according to the WI statutes, if a commissioner makes the decision, I can then (within 10 days of the commish's decision) ask for a judge to hear it, if the judge also doesnt agree to improper venue, then I can appeal...however, why on earth would they not agree to my Motion? I mean, to me, its BLACK AND WHITE the Statutes where speak about Venue in a Consumer Credit Transaction. NO WHERE have I found it "ok" to be in a differet county because they happen to have an 'office' in that county???

Am I totally off here? Is there anything that I can add to my Motion that would make it 'stronger'?

In my states online case search, I have found that that same company, different 'branch' location DOES file cases in my county, where the contract was signed, where payments were made, where the contact address is for my branch where I did business.....however, the specific manager of the location that we have done business with, she has only filed in the 'other' county...not where her store is located...

Have I mentioned that they do not have an Attorney? They have had the Manager of the Location do the filing....and they even have hand-written the complaint and everything. I know that is not against any 'rules' however, they have done some really horrible, against the law things (which will be in my counter claim, in the PROPER county, where we can AFFORD to drive to to defend our case).....Anyway, they are horribly unprofessional. I even offered to settle this while in the 'meeting' last week, for half of what they are asking, even though we dont owe a penny more, and actually have a very legitimate cross-claim. I just want this done and over with, and if they would have taken half of what they are asking (they are asking for $1800 plus interest and filing fees, I offered $900), she looked at her papers and said 'no, I will not take anything less than what we are asking for in the complaint'...she asked if she was sure because this could get expensive for them. She then replied with 'they owe it, we dont care, and we have a contract'.

When looking up their cases, not one person, in hundreds filed monthly, did anyone show up to dispute any of it. They just simply file hundreds, sometimes 50 in one day, and then when we showed up at our date....it was like an assembly line, they called the plantiff up, and then read off name after name after name, we were the only ones that showed up after probably 5 or 6 different plantiffs were called, all different payday loan places, she was shocked when we came up to the judge...

Sorry for the long post, my point is that I know that she is not bright at all. She doesnt even know what the FDCPA is, nor is she aware that anyone in Wisconsin, even OC's have to follow the FDCPA here. So, the more specific I can be to her claim that she can file it in the other county because 'they always do that, and its ok because they have a main branch there'....the better.

Not sure if I mentioned it before, I looked up the Registered Agent, and that is in Madison (Dane County), even in a different county. So with their 'reasoning' that means, that technically they could have filed in ANY county in Wisconsin, or heck, the Nation, because they are a National Company?

Thanks again for your tiem and consideration. ANything that you can think would be good for me to add in my Motion to Dismiss, pleaselet me know asap, I am filing in about 2 hrs.
Thanks!
Angie

[Zigner]

When you took out the payday loan, did you agree to the proceedigns being held in a certain county? It would be in the forms you filled out. THAT would over-ride the things you are looking at.

[yaka11]

Nope, nothing like that at all. Just the contract and a statement that my husband is marred and to whom (he took the loan out, and in WI you have to tell that info), and that he states he is not a member of the Military...

And I have read that contract up and down and sideways....And the only thing that MIGHT have issue is the name of the company:

Payday Loan Company, Payday Loan Company Centers of Wisconsin, Inc. d/b/a
Payday Loan Company, Payday Loan Company Centers
*city*
Street Address
City, State, Zip
Phone and Fax

I left out the specific name of the company here and address info (please pm me if you need that, I just didnt want it public, but it IS the city and address of the location of where I signed it, in MY county, no where it was filed..in the other county..
Thanks!
Angie