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Judge Denied MTC Arbitration bc of "Small Claims" - GA
SkyStillSunny posted a topic in Arbitration1. 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
This is the 4th time the judeg is hearing the JDB summary disposition. I am a complete novice. I want help defending myself. I need to submit an amendment by tomorrow to be within the 7 days of judge hearing the motion. I will type Plaintiff's motion for Summary disposition here: 1. On or about Nov 2002, Defendent entered into a Contract with Plaintiff's assignor whereby Plaintiff's assignor provided certain credit to Defendent based upon Defendent's promise to pay for same and more specifically described as account number *************. (see exhibit 1) 2. Based on the above, Plaintiff's assignor did ptovide the credit, which Defendent did receive. 3. Thereafter, Plaintiff's assignor sent monthly invoices to Defendent for the credit extended and Defendent made payments, or partial payments, thereof. 4. Prior to June 21, 2008, Defendent breached the Contract for the credit extended with Plaintiff's assignor by failing to properly remit payments to Plaintiff's assignor based on the monthly invoices (See Exhibit 1). 5. The account and underlying debt subsequently assigned to Plaintiff. (See Exhibit 3). 6. Plaintiff filed its Complaint on or about June 28, 2013, in order to recover the sums due and owing from Defendent under the terms of the Contract. 7. Defendent fi;ed an Answer, denying owing Plaintiff for the credit extended. 8. Pursuant to MCR 2.116©(9), Defendent has failed to state a valid defense to Plaintiff's cause of action. 9. Pursuant to MCR 2.116©(10), there is no genuine issue as to any material fact, and Plaintiff is entitled to Judgment by law. _______________________________________________________________________________________________________ I am prepared to send my answer to the summons and Complaint to whomever is willing to help me on this forum via inbox as well as my responses to their Motion for Summary Disposition, which I can paste here. I am in the process of amending those answers by tomorrow morning based on Case Laws: 1. Lack of Capacity to Sue 2. Mistake 3. Insufficient Personal Guaranty 4. FACTA "prevents victim of Identity theft including a prohibition of collection of debts incurred." As well, I have read threads from bcm100 which states that if a proper bill of sale and notorized copy of the assignment wasn't included in the filing, I should have the case immediately dismissed. ________________________________________________________________________________________________________ Trust me, time is of the essence and I will do as I am told. I have had phone conversation with the JDB as well as tried to settle with them via phone. Those calls were recorded. "I NEVER ADMITTED TO HAVING THE DEBT nor RECEIVING ANY STATEMENTS. I did however impluicate that it may have been my mother or sister....because I truly believe this is the case- if the debt is true. My sister and mother denies ever having incurred the debt as well. I do not know exactly what to do. Please answer in as timely a fashion as possible. I was hoping I could get help from bcm100. Thanks!