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SkyStillSunny last won the day on July 8

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  1. I got so flustered that I didn't even give him time to react after I handed him my counterclaim, which in hindsight I should have waited for! I just did NOT want to face that judge again. He scares me and makes me super nervous and I felt like if he asked me a bunch of questions about my counterclaim, then I would probably look like an idiot. I really thought about it and didn't even make a decision until I met with the attorney and just decided that I wanted this settled. I am happy with the results. You guys rock!
  2. UPDATE: First of all, can I say how much I love this board? It has been instrumental in helping me with so many of my cases. I really appreciate all the knowledge and advice that you guys so willingly share. Indebted (no pun intended)! So I went to court, and filed my counterclaim with the clerk immediately. The attorney was there for me and 4 other cases. Guess how many showed up? Just me. We go to talk in the hall. He tells me that his client agreed to settle for 65% and I can make monthly payments over 2 years. At our last hearing I tried to settle with them and offered $1000 right then, or 50% w/ payments (bc my MTC was denied, and I didn't know what else to do), and he called the client and they said no to that, and said the best they could do was like 80%. I told them no and we could go to trial, well that's when he got the continuance so he could go back to his client and discuss a 50% settlement, and they would let me know. Well at all of y'alls suggestions, I said no to the 65% settlement and that I had just filed a counterclaim against his client for malicious prosecution and violation of the Fair Debt Collection Practices Act. And that the most I could do was $500 and payments over 4 months. Then I said if he didn't agree to that, then we could go to trial and that I knew I would lose since the judge already denied my MTC, and I was already aware of that. However, I said I planned to appeal his decision and take it up in State Court. Then he told me to hold on, and he texted someone for a couple of minutes and said "ok the client has agreed!" So he pulls up a consent order, and then I told him that there has to be language in it that states that the case would be dismissed with prejudice and that my credit file will show "paid in full" for this account. And at first he said no, he has to do dismiss without prejudice and not to worry that they wouldn't go after me again. I told him no deal if it doesn't say WITH PREJUDICE. So he gave in. I know that I could have probably taken this to state court and been granted my MTC, but the appeal was going to cost me at least $217, and I figure another $283 to just settle this now and not have to go back to court was worth the anxiety that going to court always brings me. THANK YOU ALL SO MUCH! Another case with a successful outcome!
  3. Thank you @fisthardcheese that does make sense. I'd have nothing to lose then, so I might as well try. Can I bring my counterclaim to court on my hearing date (because of work I can't make it to the magistrate beforehand and it won't get there in time if I mail it now) or does it have to be filed before then? I may have lost out on that if it has to be filed before. I could probably go to the magistrate early and file it right before my hearing?
  4. @fisthardcheese I called the magistrate and it looks like it's a $217 filing fee, and not sure if they will require a bond. But I can submit my MTC once I get a state case number since I already have it done. Ok, well I wasn't sure how much the attorneys would cost, so if it's 50% then I might as well try the appeal on my own. If I lose in state court, then is it just a default judgement for the full amount at that point? Do I have no room to negotiate a settlement in state court? Is there a boiler plate counterclaim on this forum I can use? The only worry I have with this is that if I file a counterclaim, and we go to court on that, then this judge I have will seriously rip me to pieces. He will want me to show evidence, and documentation and expect me to explain it thoroughly and I am not prepared for that. I am pretty sure he'd dismiss my counterclaim on the spot. He was the same judge previously that told me "Well you sure knew how to write up this MTC, so I think you can figure it out," when I asked him something about arbitration before.
  5. @fisthardcheese If I file an appeal, I might just get a lawyer to help me in state court. I thought I saw you recommend a firm in GA (near Forsyth or Gwinnett county), but I can't find that post. Do you have a law firm you recommend?
  6. Oh wow, ok. Hmm, so if I lose my appeal then they get their judgement all at once. I've never bought a bond before. Do you know if I will have to post the same time I file the appeal in GA? Does anyone know my chances of winning this appeal? I think I'm still going to try to see if they will agree to settle for 50%, and if not then I will go the route of the appeal. I appreciate everyone's information, thank you!
  7. Ok, now I think I understand. I didn't realize you could appeal just a motion. I think my best bet then is to let the magistrate judge find for the plaintiff and grant their motion for default judgement for the full amount. Then at that point I can file for an appeal for the entire case to state court? When I do that, what happens to the judgement that was granted against me in magistrate? Does it still hold until I get an answer in state, or is the case dismissed in magistrate and reheard in state?
  8. I was just reading through some other posts, and was hoping @NormInGeorgia has any advice for Forsyth County in GA? I am referring to this below: If I file for an appeal to State Court, and I win, does it get remanded down back to magistrate court? Why would I file a stay of the case in magistrate if the judgement has already been made? If GA is "de novo" as @fisthardcheese stated, then it sound like my magistrate case is closed and wiped and I get a new case in state. I'm just confused whether I would get remanded back to magistrate and my original case would stay in "limbo" while my state case is heard. Do I have to file for a stay before a judgement is made in magistrate? Because the judge I have is not going to allow me a stay. Also, when I go back to court I plan to try to settle for a portion. Can I tell the attorneys that I plan to appeal and bring my motion to State to help persuade them to settle? Or should I keep that to myself?
  9. @fisthardcheese If I filed a counterclaim, what would I even file the counterclaim for? My judge for this case doesn't play around and will rip me a new one if I don't have anything to back up my counterclaim. I already have a trial date coming up bc the other attorney asked for a continuance. Could I present counterclaim then, or do I do it now? Also, the attorneys just sent me a Motion for Default Judgement for not filing an answer on time, which is total BS. I have a copy of my answer stamped from the magistrate court, yet they say they contacted the magistrate and have no record of it. I called them, they do have it. Plus the attorney told me they were asking for a continuance to discuss w/ their client on settlement terms and they'd let me know what those were by mail. Never got anything. My concern about appealing is this: If I do appeal to state court, what if I do lose the appeal? I don't know all the nuances and fees for Forsyth County, but that seems like if I lost then I'd end up paying more than if I settled. When I go into trial, then if the judge rules in favor for the plaintiff and signs an order, do I say that I want to file an appeal at that point, or do I even mention an appeal? Should I tell the attorney that I will file an appeal?
  10. Thanks everyone for your valuable input. I learn something new every time I post. So regarding the term "small claims," I very much doubt I will be able to argue. There are about 6 different magistrate judges, and the one I happened to get that day is a hard a$$ on defendants. I've had him before where he seemed disappointed to allow my MTC arbitration (bc in that case the agreement had no verbiage regarding small claims court), and now he recognizes me. He seemed more than happy to deny my motion, since he cut me off whenever I tried to argue anything. He's the only judge that says a speech in the beginning of the calendar and says something about "anything under 15k is considered small claims, therefore this court is for small claims only," or something to that effect, but he does use the words "small claims". This is the judge that scares me, but I tried my best with everything I had in my MTC, and he flat out refused it all. I just happened to be against an attorney that did know about the "small claims" verbiage and used that against my request to arbitrate. I feel like I should have never added an "affirmative defense of arbitration" in my answer. Do you think that gave the attorneys a heads up? Idk. @Clydesmom thank you for the straightforward advice for GA courts. I'm leaning towards just trying to settle for 50% at our next court date and hope they approve. I don't want to risk an appeal to state court and end up paying more, and then just getting remanded down back to magistrate court which would do nothing more than just drag this out. My main goal really is to avoid a judgement on my record without having to pay anything, but in this case it looks like arbitration won't work, and an appeal in GA won't work (without major effort and cost), so I'm just going to try to stick with not getting a judgement. So if I settle, then I should be signing a "consent order" not a "consent judgement" form, correct? Am I allowed any terms to that? Such as removing it from my credit report and dismissing this case with prejudice once paid to the agreed upon terms? If they won't settle w/ me for 50% (because honestly why would they since they will win anyway), then I guess I get a judgement anyway and they'd garnish wages?
  11. If I appealed his denial, then the judgement would be for the plaintiff until I filed for appeal, correct? Would I file the appeal in state court or supreme court? Does anyone know which is better for me in GA? Are there any helpful links to anyone successfully filing an appeal? Also, if by chance I lost the appeal in state court, would I still be able to settle at that point, or would the judgement be final against me?
  12. 1. Who is the named plaintiff in the suit? Portfolio Recovery Associates LLC 2. What is the name of the law firm handling the suit? Weber & Olcese P.L.C. 3. How much are you being sued for? ~$3,900 + Court Costs 4. Who is the original creditor? (if not the Plaintiff) Home Depot (by Citibank) 5. How do you know you are being sued? (You were served, right?) Served 6. How were you served? (Mail, In person, Notice on door) In person 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Received a letter prior to being served and I sent in a DV (that stated that I dispute this debt) 9. What state and county do you live in? Georgia, Forsyth County 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 10/15 11. When did you open the account (looking to establish what card agreement may be applicable)? ~12/2004 12. What is the SOL on the debt? Not sure? 13. What is the status of your case? Suit served? Motions filed? Served 5/2019, Answered 6/2019 (denied w/ arbitration as affirmative defense), Court 7/2019 (prepared MTC Arbitration) 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes, to the lawfirm only when I initially received a letter. 15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). Yes. 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They sent copies of statements from the OC from 2015 and 2016. A copy of a bill of sale to PRA. Well it finally happened, the judge denied my MTC arbitration because of the small claims verbiage below: He said that the wording was not ambiguous, and any statement otherwise or whether there was a clause in it at all did not matter. I tried to describe the other SCOTUS cases, and he would not hear it and said that this matter was brought to small claims, so now it is no longer subject to arbitration. He shut me down at every argument I had about the arbitration clause, and asked if I wanted to mediate w/ the attorney. I asked for a continuance, and the plaintiff said I see no reason for a continuance and the judge agreed so he denied the continuance. I did create an AAA case AFTER I was served, so when I told him that I even had an arbitration case started, he said it did not matter. At this point I was lost and did not know what to do. So I went to the attorney and said that I could write a check for $1000 right now the settle the case, and he said his client refused. I told him that’s really all I had, so then the attorney requested a continuance and it was granted for him. Should I have just gone to trial and let the judge find for the plaintiff after denying my MTC for arbitration? I was scared to do that because what I’m ultimately trying to do is avoid a judgement on my record. I’d rather try to settle than have a judgement. I was thinking maybe I could appeal, but I’ve never gone through that process, and wonder what would happened if my appeal was denied or if I lost there too? Any advice? I go back to court next month. I’ve attached the CCA both current, and the one while my card was active and both do contain that “small claims” verbiage. arbitration-2016.pdf arbitration-current.pdf
  13. Great update! I lucked out. The attorney that showed up for Unifund was completely clueless. The judge forced us to mediate, so I told him I had a signed court order to arbitrate, and I also had a letter from AAA indicating that because I had a signed order, they could not pursue in small claims and it said that they had to pay $3250 immediately or the case would be closed. It specifically said that the claimant had fulfilled their obligations and was waiting on the respondent. The attorney looked it over for 10 minutes. He reviewed his paperwork, and then looked at his phone, then finally made a phone call, and then asked me that I could sign a consent agreement and go ahead and settle because he was planning on trying to get the court order vacated because of that one sentence in the citibank agreement about "small claims court". I told him that it was too late, that I had a signed court order and that we can go to trial. Well the judge then forced us to go through mediation with a mediator. I explained my situation, and the attorney said the same thing he said earlier. Then I was asked to leave so the mediator could talk to the attorney. When she called for me to come back and speak privately, she tried to tell me to settle!!! That they would be willing to settle for $700 and I could pay $50/month, and that it would clear my credit and that she was just giving her advice on what she would do. But I said that I had a court order!! And she told me she said the judge could decide to vacate because of that stupid citibank small claims section of the agreement. I told her I'd take my chances and wanted to go to trial. WELL I gave the judge my order and a copy of the letter from AAA, and she asked the plaintiff why they had not started arbitration! She said that if they didn't start it, then they would be held in contempt for violating a court order, and she said that she definitely would NOT vacate the order because the last time we were in court the Plaintiff agreed and signed off on it! We go back in 30 days, and if the plaintiff does not either 1) dismiss or 2) fulfill arbitration duties and begin proceedings, then they will be in contempt. She told me that if I had any motions to file, then I should do that prior to the next court date. But I'm not really sure what she meant by that for me? I don't have any motions to file, I think? So yes, finally I had a judge kind of see my side for once. THANKS for ALL THE HELP everyone! I hope to get a dismissal in the mail soon!!