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Everything posted by Clydesmom

  1. You REALLY need a lawyer. This is very complicated. Use the link I provided to find one or more to consult and get opinions. A divorce attorney has likely seen this before and knows what to do. The son's car is complicated. Your car less so. My guess is you would start with Well's Fargo.
  2. The first thing you need to do is consult a good divorce attorney. Most will do a first consult for free. There are many options available to track his worthless a$$ down and make him pay temporary support as well as your legal fees as the separation and divorce is hashed out. DO NOT wait for him to file in another state. The attorney can advise you on the best way to handle the issue with the car with the least risk to you and your children. You can use the site Lawyers to find a good competent attorney near you. I have used the site twice to hire lawyers (once in GA) and both times got excellent representation at a very reasonable price. Best of luck and sorry this happened to you. Edited to add: if you have ANY joint bank accounts stop any payments coming in to you like SSDI immediately. Open a separate account in your name only so that he cannot steal your money.
  3. Bankruptcy is the only guaranteed way. If you lose the MTC arbitration and/or the case the answer to that is no. GA is very creditor friendly when it comes to wage garnishment. There are ways to make yourself collection proof but wages are the most difficult to protect from seizing via garnishment. The first thing to know and accept is what they paid for the debt isn't the point. Under contract law they get the rights to the full amount you owed at the time they bought the account. If you lose the court case they will be awarded that plus the attorney fees, court costs, and post judgment interest. Magistrate Court does not allow discovery. DO NOT get worked up worrying about that. If you choose to go the arbitration route type up the MTC using the facts specific to your case. Leave emotion out of it. This needs to read like a legal document. Make 2 copies and have the original and the copies with you on the day of trial. Magistrate Court is trial by ambush. That means once you file your answer (use the pre-printed forms provided by the court) they will stamp it and within 30-60 days you will be notified of the trial date. Watch for a letter offering you the opportunity to come to the lawyers office to examine any evidence they intend to use. IF you do not do this you cannot object to anything they use under the GA relaxed business records laws. You need to do this in case the MTC is denied. That is because if it is they go right to trial right then. On the day of trial their lawyer will either approach you to discuss settlement first or the Magistrate will send all parties out to discuss settling to try and clear as much of the docket as possible. If you are choosing arbitration that is what you tell the lawyer it will take. You wish to arbitrate according to the terms of the card agreement. If they agree then you will both tell the Magistrate that and a stay will be issued pending arbitration. You then file in JAMS. If they oppose then you both go back in to court and make your case to the Magistrate for/against arbitration. Then he/she rules. If you lose the trial is immediate. That is why you need to be prepared for both. If you win then you file and wait for it to get so expensive for them they dismiss. One step at a time though. Answer the suit using the court form. Get your MTC ready then study up on representing yourself in court. If the MTC is approved then come back to this thread and the arbitration veterans will guide you from that point.
  4. They are doing that because if what @BV80posted is no longer correct and and admission of liability during settlement talks cannot be used they want it prior to discussing settlement so they can use it. It looks to me like they are covering all the bases so to speak. I should of clarified in my previous post when I said they absolutely are not admissible I meant the settlement discussions NOT admitting it is your account. I think it is but am curious as to what a lawyer will say. I think the plan is more akin to getting the admission of liability in case the talks fail and they do have to go to trial vs. a set up. The good news is there are many ways to settle an account. As I also stated the OP can send a written offer that specifically states without admitting liability they seek to settle the matter as expediently as possible and are offering a specific amount as settlement in full to be paid on X date via cashier's check and in exchange the remainder is disputed and creditor agrees not to sell the disputed amount and to delete the trade line etc. If they refuse the terms it cannot be used at trial. Or have a relative make the settlement offer using the same verbiage. It can be done without admitting liability. You just have to be creative.
  5. This is correct.. Because the Magistrate Court does not allow discovery and GA business records laws does in order to use the documents as evidence the suing party is required to provide an opportunity for the defendant to examine the evidence prior to trial. Where many defendants get tripped up is not knowing this and when the savvy law firms send the letter they figure no big deal I will object at court and then find out they can't because they didn't review the evidence in advance. If the letter never comes you object to any evidence you want excluded or believe is inadequate to support their case.
  6. Okay, that means they cannot discount the amount owed. The provider would be who ever is billing you and provided the care. Many collections contracts are contingency or now written that once it is passed to the CA that the provider cannot recall or take payment. Do not be surprised if they tell you they cannot do this. If they can make arrangements to pay them. If they cannot then you do PFD discussions with the CA getting all terms in writing BEFORE you pay.
  7. They very much are inadmissible. Cases are settled ALL the time because it is cheaper than litigating all across the legal system without any admission of liability. What Discover is doing is demanding you admit the debt is yours before entering in to any settlement discussions. THAT would be admissible in court as a separate issue in my opinion. I am curious as to what a VA lawyer would say as well. I would ask the lawyer if you could sent a lawyer stating that without admitting liability you are offering a settlement of $X amount to settle the matter in full. My guess is that they would consider it.
  8. Did you use insurance to cover the procedure and this is your out of pocket amount? If so, then they cannot discount the amount owed any more as it is a violation of the contract with the insurer in the form of illegal rebating. It is also possible that the facility/provider already gave a discount and that is why they won't take any more off. The last reason is some collection agencies take the accounts on contingency and only get paid on what they collect and therefore refuse to discount the amount owed. No, it isn't true. It being medical debt does not mean they are required to delete the trade line once you pay. The are only required to update it as paid. You would need to negotiate pay for delete up front before you pay. Is there any chance of contacting the provider and having the debt recalled and paying them? Medical debt will automatically fall off 7 years from the date of the procedure. Unlike credit card debt 6 months is not added on for charge off. Whether paying it now or waiting is worthwhile is only a decision you can make.
  9. It does. Magistrate Court in GA is small claims and CITI I believe has a carve out for debt cases filed in small claims court prohibiting arbitration of the cases. You need to read the entire clause on arbitration in the card agreement they provided to be certain. Now for the good news: Gwinnett County is one of the largest in GA and the Magistrates that serve there are actual lawyers and judges experienced in the law. They typically are not part of the GA good ole boys network and will require evidence to rule in their favor. They also use GA pre-printed answer forms. You do not need to file a formal answer. You can go to the clerk's office and pull one off the wall. Hand fill out the details and hand it to the clerk. They will stamp it and give you a copy back. Do this about 4 days prior to the expiration of the date to answer. The reason is Magistrate Court is VERY efficient in Gwinnett and within a couple of weeks you will have a trial date within 30-60 days. Now the bad news: Magistrate Court does not allow discovery so do not stress yourself trying to come up with it. They cannot send it to you and you cannot send it to them. Due to the relaxed GA business records laws you need to watch for a letter from them giving you the opportunity to come to their offices to review the evidence they intend to use. If you fail to do this you cannot object to it. It is also trial by ambush. Meaning the date they give you that is IT. The first thing that will happen is the attorney will approach you and try to get you to settle. IF that doesn't happen the Magistrate usually gives a speech about how clear the law is and that job loss, divorce, health etc. are not legal defenses to default. If you do not have a legal defense the law is clear and he must rule for the party suing you. Then you are given time to discuss settlement options. The law firm suing you is a major debt suit factory. The good news on that is they likely will hire a local yokel who doesn't know what they are doing and is banking on you not showing and a default judgment. If you lose you can appeal which is a trial de novo meaning it starts all over. The bad news is GA often requires an appeal bond in the amount of the verdict to do that and it must be filed within 30 days of losing. Settlement discussions are inadmissible in court. You can settle any time prior to the verdict. Here is my thoughts. Read the arbitration agreement. Even if the carve out is there you can type up 3 copies of a MTC with your specific facts. To do this even with the clause present you need to be confident in your ability to argue your right to it. The argument I would take is ignorance is bliss. I don't agree with it but you have nothing to lose but them denying the motion and going to trial anyway. That is Magistrate Court is not small claims. Again, you have to be confident to argue this. My guess and it is a guess, is that lokel yokel attorney won't know what to do with that motion and could actually agree. Odds are good they ask for a continuance to talk to their client. Then they may dismiss. They might just dismiss right then seeing you showed up and you refuse to settle. If you can study up on good solid arguments on why they don't have enough evidence you could actually win in Gwinnett because the Magistrates are smart and do require evidence. If you do not feel you have the confidence or the time to put the work in to have a solid plan then keep working on settlement options. You can send a certified letter offering settlement to the attorney listed and then they will likely call you. One more thing to do: Call the law firm Skaar and Feagle. CALL do not email. They will do a first consult for free. They may take your case on a flat fee that is way cheaper than $7k and better than settlement. Often in GA JDBs fold when the defendant hires counsel. Skaar and Feagle also know who most of these lokel yokels are and how to make them go away.
  10. LMAO. We are supposed to take a guy seriously who doesn't know the difference between the words loose and lose? You aren't even worth the time to type this. I repeat my warning to those that read your posts: Follow his advice at your own risk. You have been warned. If you need further support read his thread on how he wasn't smart enough to pick up his watch after going through security at the court house and wants to sue a year later.
  11. In theory great advice. In reality: not always possible. Many small claims courts are trial by ambush and do not allow discovery: GA is one one of them. Others severely limit the number of items you can ask for. Texas requires you get permission from the court to do discovery and then you have to submit what you want to the court who either approves or disapproves what you are asking for. If it is too burdensome you won't get it. Courts have gotten wise to that "bury them in paperwork" practice from both sides. The good news is many JDBs still want the easy low hanging fruit and will back down when challenged to prove their case. The drama and theatrics the OP is proposing are not necessary. Hard work and research definitely are. Unfortunately many pro-se defendants are ill equipped or unwilling to put in that kind of effort.
  12. It appears you did not but the SOL defense is not automatic. You must invoke it. Have you filed an answer yet? If so, did you use the SOL being expired as a defense? If not you may have waved it. You need to research if you can file an amended answer to include the SOL. If you can do that the SOL being expired is a gold plated defense that is way better and easier than a MTC.
  13. Unfortunately while Credit1 does have an arbitration clause they also have a carve out for debt cases in small claims court. Please re-read your arbitration clause in full. If that clause is there you cannot use arbitration as an option.
  14. Funny you should say that you suggest that others read what you post instead of internet advice. Isn't what you are doing internet advice? Talk about contradictions. To anyone who comes across this in their search for help: take the OP's advice at your own risk. It is an internet troll who will most likely slow walk you straight to a judgment and wage garnishment and/or bank levy. You have been warned.
  15. The court will not grant this subpoena. The business records laws were relaxed/watered down about a decade ago. The affiant is presumed qualified. The only way you would be able to challenge their credibility is to have them there as a live witness where you could question them. California has a law on the books allowing a Defendant in a debt case to file for a live witness vs. an affidavit. VA might but you need to research it and file the motion according to the rules of civil procedure.
  16. It isn't "maybe" they are very different in Virginia. WI is debtor friendly and VA is the polar opposite. The OP can request a full accounting but the chances the court orders it are slim to none. The problem is you did this back during the post recession/depression era when bank records were still all hard copy and most suits didn't want to spend the money on the evidence. Times have changed dramatically since all records are transferred digitally now. Things are very different a decade later. It always amazes me that people refer to them as "crap" when they had no problem applying for the card(s) or using them but then take offense when they default on their contractual obligation and then are even more shocked when the creditor asserts their rights under the card agreement. SMH The worst that is going to happen is the court rules against you. You either mount a defense, settle, or file BK. You were fortunate the first time that the court worked with you and forced them to actually prove their case. Sometimes they just go away. Sadly they didn't. Fight back. They might just drop it but have a plan if they don't and you lose.
  17. A dismissal with or without prejudice will not get the trade line deleted. Those are entered for administrative reasons. The court has to rule on the merits that the defendant does not owe the money for the bureaus to delete the trade line.
  18. Yes. The suit should be filed in the county you live in NOW not when you opened the account. They didn't have to respond to this at all. Once they sue you sending a DV letter is absolutely pointless. They are free to ignore it so what they did or didn't send is irrelevant. No. You are being sued by an original creditor and a top 3 aggressive one in suing at that. Original creditors rarely settle for one third the amount owed when the SOL for suit is very much alive and they can collect the balance, attorney fees, court costs and post judgment interest. The defenses you read about on sites like this are based on being sued by a junk debt buyer not an original creditor. Research the California threads. There is a lot of information there you can use to defend this.
  19. AMEX is one of the top 3 creditors that doesn't give a hoot and will follow JAMS all the way through to the bitter end regardless of cost including appeals. ALL electing arbitration does is buy you more time to settle. A bad case in court is equally bad in arbitration and AMEX does not back down. You file your answer with the court and always copy anything filed to the attorney. You need to read the rules of civil procedure for your court. No it isn't JAMS. It is court ordered mediation and a lot of states are making this mandatory (at your expense and the plaintiff) to try and get cases off the docket. Your argument there is the same as court you want arbitration in JAMS. DO NOT be the least bit surprised if you file a MTC and AMEX says no problem and goes straight there.
  20. Be prepared to argue this: the other party is forum shopping. They did not object to the motion as filed and therefore must comply.
  21. CFPB archives. If the agreement has a survivability clause you can use the arbitration defense. If it does not have that clause then you are out of luck. No. This is done to eliminate FDCPA counter claims during the lawsuit. Magistrate Court does not allow discovery. Ignore any and all responses that tell you to start discovery or to file your MTC in advance. Magistrate Court is trial by ambush. Most in GA have pre-printed answer forms. You simply fill it out, check off "deny" and hand it to the clerk. They will stamp it and give you a copy. The court will notify you within 20-30 days of the trial date. On the day of trial have 3 copies of your MTC with you and be prepared to argue why the clause and survivability should prevail. Also be prepared to go directly to trial if the MTC is denied. Unfortunately an interlocutory appeal of the denial is not possible since the trial is immediate. The good news is if you do lose an appeal is a trial de novo (complete do over) at the state court level.
  22. The argument I would have made is that due to the obscurity of the web page and the inability to find it that you were not legally bound by that requirement as it was not disclosed prior to the procedure but after denial to your detriment. Detrimental reliance would have been a good option too. The answer to that would have been that as a lay person you lacked the medical expertise to submit the required procedural and diagnostic codes to get pre-approval. That would be something for the provider(s) to do on your behalf. This reminds me of when my father was alive and had sleep study. The small local hospital was trying to balance bill him for excessive over charges. His EOB stated he owed a $50 copay and that the contractual amount was $XXXX. The rest was denied as it was twice the reasonable and customary and exceeded the contractually agreed upon amount. A few phone calls to the random phone jockey got no where. So, one day he grabbed his check book and headed to the billing department to "pay his co-pay." The desk jockey tried to tell him he owed them $2400 and change and he politely outlined why they were not legally entitled to that over charge. He wrote a check for the co-pay and turned to leave. She snarked back at him that she would mark it as a refusal to pay and forward it to their hospital attorney for litigation and destroy his credit with a judgment. He turned around, smiled and said "Please do sue me. I am a retired lawyer and would love nothing more to have my day in court to expose your egregious billing practices. You can count on my filing a counter claim for fraud, deceptive business practices, balance billing, and anything else I can think of once you serve me. You do have my correct address for process of service right?" Needless to say the department manager heard ALL of this and came out of her office at warp speed. Zeroed out his account and printed him a receipt that stated he owed nothing and the bill was paid in full. He never heard from them again. The point is maintaining your composure and standing your ground is possible. The instant you go full "Karen" on them you lose all leverage.
  23. THIS. When it comes to deferring payments you NEVER assume everything is taken care of and even if using an online portal there is ALWAYS a screen that you can take a shot of showing your transaction. The OP didn't just make the mistake of assuming everything was the way they wanted it when a problem arose instead if keeping the account in good standing they doubled down on the mistake and threw a toddler tantrum and involved everyone in a position of power and control. The other potential problem with the hardship program is that the OP assumed that simply filling out the page on the website meant approval. My educated guess is that the terms of the program state approval is not guaranteed. Which circles right back to you never assume it went he way you thought it would. You get confirmation. My opinion is intentionally defaulting then demanding they arbitrate when you KNOW you made mistakes and you owe the money IS frivolous.
  24. EVERYTHING @WhoCares1000has said in their post(s). There is a major difference between your cases with creditors and this one case. The OP openly and defiantly refused to pay a legitimate debt unless they got their way. There is no question they owe the money. Worse they laid down a clear paper trail in their letters documenting it. You poured gas on the fire by cherry picking out individual sections of separate laws that MIGHT be bent to support the OP's theory. You have no legal cases supporting your theory. I agree with @WhoCares1000that CITI is out to make an example of the OP for their conduct and defiance in demanding their way while refusing to pay. My opinion is it is extremely foolish to believe that CITI cannot prove that the OP's demand for arbitration is frivolous and they are not entitled to attorney fees. EVERY card agreement openly states that they can seek their attorney fees and costs related to any court or arbitration case. I do not see them backing down on this one. They possibly could get a better settlement but that isn't guaranteed. None of us here know exactly how pissed off the legal team and C-Suite are about the OP's behavior. We have seen cases here where AMEX and Discover got so irritated they refused all settlement offers and when all the way to the end including appeals at great expense. The major problem in comparing your results is that your situation was very very different and in a much different era when record keeping spotty and violations common. I guarantee you that CITI from the first inappropriate letter has been saving every shred of documentation for this case to teach the OP a lesson. The problem with cases like this is not only are they bad in court and arbitration but they can end up setting an equally bad precedent for future consumers as well.
  25. Not an uncommon argument. The response is that if this is the card agreement they state belongs to the account then they are bound by the terms and you are free to assert that term when they said it was the account in question. The terms go both ways not just in their favor.