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Everything posted by Clydesmom

  1. Bank accounts can be levied in every state unless the funds are exempt by law. If the funds are from a pension, SSI, SSDI, disability policy they cannot be levied. Up to 2 months worth is protected from levy. This is why consumers with debt with protected income should not have joint bank accounts as it places the other person's funds at risk for their debts. Also it is very important NOT to have non-exempt money in that account ever. ONLY protected funds should be in there.
  2. THIS. Once they sued all communications must go through their attorney.
  3. If this is in Magistrate Court you cannot file motions in advance. Not allowed anywhere in GA in Magistrate Court. You have ZERO chance of a motion to dismiss being granted unless there is identity theft, deceased defendant, wrong state/court, or some other legal reason. Counter sue for what? You cannot just throw anything at the case and hope it sticks. The more frivolous claims you make the weaker your case gets. Magistrate Court does not require they provide any evidence when the case is filed. It also does not allow discovery. Magistrate Court is trial by ambush. The good news is Gwinnett is one of the 3 biggest counties and the court is staffed by actual Judges not the good ole boy fishing/golf buddies network. While they will require solid evidence chances are good the law firm has what they need. GA relaxed their business records laws about a decade ago and now the records along with an affidavit and they are in. You need to watch for a letter giving you the opportunity to come to their office and examine any documents they intend to use. If you do not avail yourself of this opportunity you forfeit your right to challenge their evidence as hearsay at the trial under GA business records laws. Don't bank on that. PRA has recently followed several cases all the way to the end. While arbitration still remains a good option it is not the silver bullet it used to be. Google the address. If it is for the law firm then that address may be on the exhibit because it auto-populated for mailing to the firm when requested from the OC. You need to have 3 motions for arbitration ready for the day of the hearing. Once you are served you will be notified of the trial date which will be within 30 days most likely from the time you answer. Your biggest arbitration hurdle is that this law firm has seen this tactic before and will be ready for it and has successfully fought it. You need to be ready with your counter arguments as to why the court should grant the MTC. Gwinnett Judges have granted them. You could get lucky and the lawyer simply agrees with you in the hallway consult and tells the Judge they will arbitrate. If that happens DO NOT split hairs on who should file. YOU initiate the case and then wait patiently for them to eventually offer a mutual walkaway when the costs escalate. You do not want to sit around not filing and then have them argue you weren't serious and have the Judge agree and hear the trial.
  4. Yes. You can and should if that is what you feel is best for you. DO NOT stress about this. No one can predict that. You send ANY settlement offer with the amount that you would like to pay. You can negotiate from there if they decline. It can and often does go back and forth until a number is reached that both sides can agree to. You have a great one: South Carolina does not allow wage garnishment. While they cannot get your paycheck(s) before you receive them they could potentially garnish a bank account. The good news is there are ways to live "unbanked" so they can't do that until you can settle the judgment if they were to get one. It very much is. To @Phillio9 if you want to settle because that is what works for you then you make that your goal. You can settle ANY time prior to the judge banging the gavel and issuing a verdict. The only way to get a settlement is to offer one. Negotiate if you have to.
  5. What you are assuming is that creditors only use the 3 well known bureaus. There are dozens of credit reporting services and many ways for them to find out about a judgment. Your assumption because EX, EQ or TU don't list a judgment means it isn't affecting a consumer is dead wrong. I stand by my statements. Your advice is REALLY BAD and you lack experience to be handing out the "information" you believe is helping. You can't even read what date the thread is from and are resurrecting really old posts.
  6. Not helping your case. Your reading comprehension is at best 2nd grade level. Until you can fully understand what you read you should not be giving out advice. That article was about removing inaccurate and unverifiable records. It does NOT mean that under no circumstance can valid judgment information be reported. You also didn't bother to notice it is 2 years old. Much has changed since then. Go back to school.
  7. When did they mail the letter? SC is a right to cure state and you have 30 days from that letter before they can sue. If they didn't wait 30 days after the date on the letter then you have a violation of SC law and possibly the FDCPA.
  8. Again what you posted is straight up WRONG. Judgments can and do get reported. What changed is now 2 or more verifiable identifying factors such as SSN, address and DOB are required before reporting. They very much are factored in to credit scores. I have NO idea where you get your information but you really need to stop. Not only are you resurrecting really old threads but your "advice" is down right detrimental.
  9. This is patently wrong. Once a suit has been filed the SOL is tolled until it goes to trial or is dismissed. Delaying service will NOT cause the SOL to pass. NO ONE should try this.
  10. Settling is about leverage. The side that has the most gains the advantage. If Midland believes you can pay and the SOL is still alive where they can get a judgment in court then the leverage shifts to them. Someone on disability, unemployed, on SSI becomes virtually impossible to collect from even with a judgment the leverage shifts to the consumer. Creditors hear sob stories by the thousands daily on why someone hasn't paid. After being played too many times by consumers crying hardship when there was none they started demanding proof of financial instability or insolvency before agreeing to really small settlements. This is a good idea but I would take it one step further. Settlement discussions are not admissible in court. I would enclose two copies of a settlement agreement with ALL your terms listed. I would sign both copies and in the letter state that you dispute the account that they contacted you about but in the interest of time and money you are offering $X to settle the account in full. The terms: In exchange for payment within 21 business days of receiving the signed settlement agreement back you will pay by money order or cashier's check. They agree this is settlement in FULL, any remaining amount is disputed, not to sell the disputed balance, and to remove the trade line from all bureaus within 30 days. Simply return a copy of the agreement signed by an AUTHORIZED representative and within 21 days you will make the payment as agreed. They keep one copy for their records. More settlements get accepted this way than back and forth sometimes.
  11. Did you get a "pre-legal" letter or an actual summons? There is a big difference. If it is a letter stating they sent your file to an attorney for review then you need to send a debt validation letter within 30 days of when you got it. That buys you a little time. If you got a summons because they already sued then you need to answer to the court. CreditOne has a carve out for debt cases in small claims court and the amount of yours puts the case squarely in small claims in OH and arbitration would not be an option. If they do sue your options are to defend yourself if you cannot afford a lawyer, file bankruptcy if you qualify or settle.
  12. If you want to use arbitration as a defense: YES. Florida is the one state that requires a MTC instead of an answer if that is the path a Defendant wants to take. READ the thread he gave you on arbitration. It explains ALL of that. After you have been served but before the deadline to answer. This has happened in FL before. When the case is filed the court automatically sets the pre-trial date assuming service will go smoothly. For the cases where the Defendant remains unserved the hearing has to be rescheduled as it cannot take place without properly serving ALL parties in the suit. Even if you get served the day before the hearing as scheduled right now they have to change the date because FL law gives a Defendant a fixed amount of time to prepare once they are served and I believe it is 30 days.
  13. You need to check the court docket and see if alternate service was used. If it was then you need to file an answer immediately and before you can do that you have to choose which strategy you are going to use. Florida is the one state that if you intend to use arbitration you do NOT file an answer you file the motion for arbitration instead. If you haven't been properly served under FL rules then the hearing would have to be postponed until you are served. Comenity has an arbitration clause. You need to decide if you want to file for arbitration in the hopes they drop it all together or defend yourself.
  14. Unfortunately in the larger counties in California the courts are very backed up even before covidiocy. The good news is you have plenty of time to research and prepare. Okay, if they have contacted you before this last letter then it isn't an FDCPA violation and they didn't have to wait for a DV before suing you. They are also not required to offer a settlement.
  15. Standing is something you allege in your answer to the court. Since you have not been served yet you could still send a DV letter disputing the debt but that really won't affect much you are still going to have to deal with the suit in one way or another once they serve you. I would not file an answer to the court until you are served.
  16. Are you certain the person was a process server? Is this letter the first one sent about the debt? If it isn't then they didn't have to wait before suing. You can call a consumer attorney and run this past them. It could be an FDCPA violation but the problem is the debt is 7x higher than the maximum payout for a successful claim. In cases where the debt far exceeds the counter claim the JDB simply fires the law firm forcing the consumer to pursue the violation separate from the debt case or allows the counter claim and deducts the FDCPA award from the verdict they get. It will not stop the lawsuit because the debt is higher than the award. You do have to be served before you need to do anything else. Watch the docket on line to make sure they do not claim sewer service.
  17. California is not a "right to cure" state and does not require they notify you they intend to sue but many JDBs do so anyway. Who is the original creditor and how much do they claim is owed?
  18. Prosper does have an arbitration clause. I would type up a motion to compel with all your details and bring it to the hearing. Make sure to have 2 additional copies. The day of trial the Magistrate will send everyone to the hallway to try and settle this themselves. Those that don't go back and immediately are heard. In the hallway you give the MTC to the lawyer and stand firm this is what you want. They may agree. If they do then they need to dismiss or stay pending arbitration. Get the Magistrate to sign the motion(s) so you have that leverage when you file in JAMS or AAA. That way if they don't pay their fees they can't try and go back to court. You need to file once you get the MTC approved. Show you are serious. The goal is not to arbitrate but to get them to abandon the case when they realize the expense. Keep in mind for $10k they may just do it.
  19. You can't file a motion for arbitration in ADVANCE of the trial date. Magistrate Court does not allow discovery or motions in advance. You can bring 3 copies of the motion with you and start your case with it. Who is the original creditor and/or JDB?
  20. Actually have a defense. You are basing your hopes on tactics of years past. I know you haven't been around here in a long time but the days of "just do/file this" and they will dismiss are LONG GONE. From 2008-2014ish that worked. The JDBs didn't have records as they didn't want to pay that expense when the portfolio's were purchased. They were all hard copy and a HUGE expense and storage problem. That went away when the digital era came in. Now the portfolios come with all the records in digital format (cheap and easy to store) as well as the requirement the seller delete their trade line(s) so that counter claims are eliminated. Defendants can no longer throw a list of defenses in an answer and rest assured that one or more will stick. A bad case is a bad case. You are wasting time and energy trying to try a case that hasn't been filed yet. You need to calm down and relax. They may never sue with covidiocy still ruling especially in Oregon. If they file suit THEN come back here with how much, what court, who the OC was and the basis of their claim(s) then we can help with defenses. Trying to do that now is merely guessing and neither accurate nor helpful.
  21. You are missing the point. States that do not allow attorneys in small claims court are seeking to keep that venue for average consumers to be able to avail themselves of access to the courts at a reasonable costs without the need for attorney. Most attorneys refer to it as dog bite court or redneck divorce court. In states that prohibit attorneys in small claims the law firm representing a client doesn't file in small claims. They file in state court. It is that simple.
  22. There are only a handful of states that prohibit attorneys in small claims court. California is one of them. For debt collection cases in states where attorneys are not allowed in small claims court they have to file in State Court. i.e. The next level up of court. In Texas some attorneys go ahead and file there because Justice Court requires permission to do discovery and limits what can be sought. State Court does not. Georgia has Magistrate Court where the limit is $15,000 and there is no restriction on attorneys using this small claims court. However, Magistrate Court does not allow discovery at all so some firms go straight to State Court to avoid that. The limit for small claims cases varies from state to state. The typical limit is $5,000. Some moved it up to $10,000 and a few have it as high as $15,000. The value of the case does not necessarily make it small claims. The court the case is filed in DOES. State Courts do not cap the limits that can be sought. Small Claims court does. Therefore some Plaintiffs are forced to a higher court when the cap is low or they don't sue for full value. CITI does not have a carve out for small claims court suits. They have a carve out for arbitration on cases filed in small claims court. So someone sued in Magistrate Court in GA for $11k could not compel arbitration because Magistrate Court IS small claims in GA. Someone sued in California in State Court for a CITI debt for $2335 could compel arbitration because the case would have to be filed in State Court since attorneys are not allowed in small claims in California.
  23. That is not for credit card debt. Read it again. It is for " in the case of an action to enforce an interest in real property securing the consumer's obligation". This is a credit card debt which is non-secured debt. That clause does not apply. The FDCPA provides for a bonafide error defense for the creditors. If they can prove that the filing was made in good faith in what they had as the last known address they will get a pass on the violation but still forced to dismiss and file in VA. Disagree. It could. If borrowing statutes or SOL are involved it could be pivotal. While the SOL does not apply borrowing statutes very much do in Virginia. No it isn't leverage because they simply fire the law firm that did it and leave the consumer to have to pursue the violation separately from the debt collection case. The FDCPA violation only works as a counter claim when the $1k award is more than the debt being sued for. A $7k debt isn't going to make them think twice about continuing to pursue the case. Especially in Virginia which is VERY creditor friendly in the courts.
  24. This is something to argue at trial that the paperwork is flawed and the affidavit attesting to it's accuracy was robo-signed. Another valid point to argue that the account number differs as well as the address and the account is not yours. They need the most recent card agreement from when you defaulted not when the account is open. If the 2015 one was effective when you defaulted then it is the correct one. Make no mistake about it Magistrate Court IS small claims court in Georgia. Magistrate court does not allow filing motions in advance or discovery. It is all done the day of trial. The bigger problem you have is you need to re-read that arbitration clause. The ENTIRE clause. CITI has a carve out against arbitration for cases filed in small claims aka Magistrate Court. The second major issue you have is Cooling and Winter lost at least a half dozen motions to compel arbitration back in the beginning of their firm separating from Freddy Hanna. They are now very skilled at defeating them. You can try it but do not be the least shocked if they are ready for you and be prepared because when they refuse you go to trial right then and there. No delays. One last issue: PRA is the one JDB that has followed through on arbitration all the way to the end. They are not put off by that threat like others still are.
  25. Maybe. If they knew the Defendant already resided on the other coast it would be. The problem is the burden of proof is on the OP to prove they knew this and intentionally used the wrong jurisdiction. The other problem is the debt is almost $7k. Since the maximum award for an FDCPA violation is $1k they may not care. They can simply fire the law firm and leave the OP to sue them separately for the violation and still pursue the debt claim. Or, they can keep the law firm and if there is an award on the counter claim deduct it from any final judgment they get.
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