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CreditCourt Forum » NH Higher Ed (NHHEAF) re-aging ALL defaulted PAID student loans as a matter of policy » 9/9 NHHEAF'S Motion to Dismiss and Motion for Sanctions « Previous Next »

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Holly
Moderator
Username: Mommy2cats

Post Number: 5
Registered: 09-2002
Posted on Thursday, September 19, 2002 - 03:37 pm:   Edit Post Delete Post Print Post    Move Post (Moderator/Admin Only)

VERDE VALLEY PRECINCT, STATE OF ARIZONA
IN AND FOR THE COUNTY OF YAVAPAI

HOLLY V. NH HIGHER EDUCATION ASSISTANCE FOUNDATION

CASE NO DV20023553

MOTION TO DISMISS AND MOTION FOR SANCTIONS

Pursuant to Rule of Civil Procedure 12(b)1 and 1, Defendant So-and-So moves this Court to dismiss this case for lack of jurisdiction over both the matter and the person, and under Rule 12(b)6 for failure to state a claim. Because this filing was without merit and intended merely to harass Defendant, Defendant also requests the Court award appropriate sanctions including costs and attorneys fees of $500.

1. Justice Court has no jurisdiction to hear claims under the Fair Debt Collection Practices Act.

Justice Courts are courts of limited jurisdiction. A.R.S. 22-201-A. A.R.S. 28-1552 sets out those limits, which certainly do not include federal claims arising under U.S.C. 15-1692, the Fair Debt Collection Practices Act. 15 U.S.C. 15-1692k(d). therefore, this claim must be dismissed for lack of subject matter jurisdiction.

2. Verde Valley Justice Court has no jurisdiction over Defendant, a New Hampshire Foundation.

Plaintiff's Complaint fails to establish either this court's jurisdiction or venue over Defendant, and both are improper under A.R.S. 22-201.

3. Defendant is not a debt collector under the Fair Debt Collection Practices Act.

For purposes of the Fair Debt Collection Practices Act. 15 U.S.C. 1692a(6) defines debt collector as someone other than the actual creditor. Because the Defendant in this case is the actual creditor rather than a debt collection agency, the Complaint fails on its face to state a claim under which relief can be granted pursuant to the Fair Debt Collection Practices Act.

Additionally, the FDCPA concerns actions involved in collecting a debt, not credit reporting, which falls under another statue entirely.

For all these reasons, this Complaint should be dismissed and Defendant should be awarded costs and attorneys fees.

DATED: SEPTEMBER 9, 2002

JOSEPH F. MUSUMECI
ATTORNEY FOR DEFENDANT

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