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Being sued in Small Claims... Need of an "action plan"


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Hi everyone,

The JDB has finally served me with summons from Small Claims, which I was expecting for some time now. To my surprise their claim itself was only a few sentences and had absolutely no evidence of any kind attached to it. In a sum, all it says that the Defendant indebted to the JDB in a sum of XXXX.XX and XXXX.XX worth of interest. I don't know if this JDB was assigned or sold the debt to.

Ok, before anyone starts talking about Discovery, Interrogatories, etc. I want to point out that in Small Claims in GA there is no formal process of Discovery. Now I do have a copy of DV letter that I sent to the lawyer a while back after receiving a letter from them, but that was the only contact I had with the JDB as of now.

So far my action plan is:

1. Answer the complaint (although I am not sure if I should do it in a short form or write a 3 page explanation of various answers and defenses) - I went to court to see if I can look up other cases, but since it's a Small Claims, they don't really have an easy access to those cases.

2. File a counterclaim for violating FDCPA, since they never responded the DV.

3. Issue a subpoena for documents, such as BOS, contract, statements, affidavits from the OC, proof of assignment... not sure what else I could ask for. Also not sure if I can/should issue a subpoena for any witnesses, even though I don't know who a witness might be in this case.

4. Go to court and defend myself

If anyone has anymore suggestions on what other steps I can add, expand or modify, please let me know. What do you think?Thanks for your help in advance! :)++

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Yes, definitely answer the Complaint. Your Rules of Civil Procedure should tell you how and if you can go about getting evidence from the Plaintiff. I'm sure there are people in this forum who are from Georgia and can help you with procedure in your state.

I don't know if this JDB was assigned or sold the debt to.

Assigned and sold can mean the same thing. Check your credit report to see if the original creditor's entry includes "sold/transferred". If so, you've got a JDB on your hands.

Is the debt within the SOL? Did you send the DV letter CMRRR, and do you have the green card?

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Thanks for answering,

Yes, I know it's a JDB, I looked them up a while ago. But I've read somewhere that there was a difference of whether the debt was assigned or purchased, don't quite remember what the difference was.

Yes I am definitely going to answer the complaint, that's out of the question.

What exactly did you mean if I have a green card? Me no speeek no inglish. I am from Paris, the capital of Italy, I think... :) And have I mentioned my name is Bill Gates... LOL!!! :lol:

Yes I did read the rules and they say you can either write a simple answer or have a clerk write one for you, but it didn't specify how simple - 1 sentence, 10 sentences?

I am also not clear if I can subpoena for witness, even though I have no knowledge of who the witness might be.

I honestly don't know if this debt is outside the SOL, but I was going to include this as part of my answer. It really depends on whether they have a copy of the last payment that I allegedly made on the account, which I suspect they don't, but they may have a statement of some sort that could show it it's within the SOL.

My main question was if there were any other suggestions besides the very basics that I outlined. Any help is appreciated!

Edited by MrPunch
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You can find out if the debt with still within the SOL by looking at your credit report. You can go by the date of the first major delinquency or by the charge off. The last time you paid would have been roughly 3 to 6 months before the debt was charged off. That date should be around the time of the first major delinquency.

What exactly did you mean if I have a green card?

If you sent the DV letter by certified mail, return receipt requested (CMRRR), they would have to sign a green card, and that card would be sent back to you. It's proof they received your letter. Without that, you can say you sent them a letter, but there's no proof.

File a counterclaim for violating FDCPA, since they never responded the DV.

If you have proof you sent the letter, did you DV after they sent you the notice of the 30 days to dispute the debt? If you DV'd within that time and they didn't respond, then you have a violation. Hopefully you have the proof. Your court rules will tell you how to file a counterclaim.

Yes I did read the rules and they say you can either write a simple answer or have a clerk write one for you, but it didn't specify how simple - 1 sentence, 10 sentences?

Since the clerk can write one for you, you can do that, or simply call the clerk and ask how simple the answer can be.

3. Issue a subpoena for documents, such as BOS, contract, statements, affidavits from the OC, proof of assignment... not sure what else I could ask for. Also not sure if I can/should issue a subpoena for any witnesses, even though I don't know who a witness might be in this case.

That information should be in your court rules as well.

BTW, nice to meet you, Bill. My name is Madonna. :)++

Edited by BV80
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Oh,.. that green card! :lol: Yes I have that one!

Do they have to have proof of a contract to be able to claim any interest above the usury limits? I am pretty sure that in GA law it says that any interest above the 7% without a contract is usury and such interest would be void as a matter of penalty plus I can ask for additional penalties... It's been a while since I read this, but that's what I remember... Just found it:

O.C.G.A. § 7-4-10 (2011)

(a) Any person, company, or corporation violating the provisions of Code Section 7-4-2 shall forfeit the entire interest so charged or taken or contracted to be reserved, charged, or taken. No further penalty or forfeiture shall be occasioned, suffered, or allowed.

§ 7-4-2. Legal rate of interest; maximum rate of interest generally

(a)(1)(A) The legal rate of interest shall be 7 percent per annum simple interest where the rate percent is not established by written contract. Notwithstanding the provisions of other laws to the contrary, except Code Section 7-4-18, the parties may establish by written contract any rate of interest, expressed in simple interest terms as of the date of the evidence of the indebtedness, and charges and any manner of repayment, prepayment, or, subject to the provisions of paragraph (1) of subsection (B) of this Code section, acceleration, where the principal amount involved is more than $3,000.00 but less than $250,000.00 or where the lender or creditor has committed to lend, advance, or forbear with respect to any loan, advance, or forbearance to enforce the collection of more than $3,000.00 but less than $250,000.00.

But first I'd make them prove the "principal" amount upon which the interest was charged - Wheee-Haaa!!!

Edited by MrPunch
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