MTD SOL or MTC Arbitration

[morgysgram]

Hello

I have been following this board for a few months now and have a couple questions.

Capital One bank via their scumbag attorney Fred J Hanna and Associates filed suit against my husband in December 10 in Magistrate Court in GA for a outstanding balance on a credit card debt. We have our hearing on Monday and in my answer we invoked statute of limitations defense based on card member agreement that states VA Laws. Scum bag attorney told us it didn't matter they would still get a judgment because court would use SOL of Georgia instead of the contractual governing laws. We told them see you in court. In addition we also in our answer stated we reserved the right to elect arbitration. In relief part we put to dismiss on sol defense or if not to compel arbitration,

Since we are in Magistrate Court we are not allowed to file motions before the hearing date and have to do them on morning of court date.

My questions are:

1. Can I motion the court on Monday before we get into the case to dismiss on the SOL defense based on Contract Law?

2. Will I lose my right to Arbitration if I ask the court for a dismissal on the SOL defense?

3. What are the chances of the court going with the agreed upon VA Laws as per the customer agreement?

I have found several case laws in GA that have allowed a Choice of Law provision but I haven't found any GA case law that says the Choice of Law includes the SOL. The lawyer is trying to say it doesn't govern the SOL part but my research leads me to believe based on other states cases I have found that Governing Law does in fact include the SOL.

Sorry for the long post and any info will be GREATLY appreciated. Gotta do this Monday and need all the help/advice I can get.

Thanks

[skippy1960]

In my experience I have yet to see anyone post a victory of the nature you speak of regarding SOL. I reviewed cases in 2009 when I first started dealing with all my collection/lawsuits, and in my state the case law supported home state jurisdiction in court for SOL.

Once you get to arbitration, many times the CC companies attorneys argue for contract choice of law provisions, at that point your plan works.

I would have my MTC arb ready and get it filed, once you have booted them from court, then you have a very viable defense, along with any FDCPA violations you maybe able to collect some coin. Minimally, I would believe mutal dissmisal with prejudice....

[morgysgram]

Thanks so much for the reply. I was hoping just to just get the thing done. I would also like to say that when we first received the letter from Hanna and Associates we sent a DV along with a election of Arbitration. They did not send me anything they totally ignored my DV request(CMRR) and instead filed suit I called on three occasions (recorded) asking for Arbitration and they ignored. Called after receiving summons to ask why they filed instead of honoring agreement and request for Arbitration. I ask to speak to attorney handling acct. Was informed attorney does not talk to defendants. Also was told they the attorney Hanna do not have an agreement with me and do not have to honor my election of Arbitration. I asked them did they not represent Capital One. they informed me they do but they do not have to honor an election of Arbitration. Of course those calls are recorded also.

I do not understand how the court will allow them to come into court and try to enforce this Customer Agreement but will not do choice of law clause in the same agreement. Seems to me the deck is stacked against the Consumer not to mention Hanna and Associates are about the lowest form out there.

Again thanks for your help and any other advice is greatly appreciated.

[skippy1960]

I don't know how much research you have done on the arb strategy or how much you understand. I did see you post on the other board. Quite frankly, if you understand the strategy you will see that what has happened is actually a good thing. Why you might say-

Hanna has placed their client in breach of their own cardmember agreement, which works to your favor, should you have to initiate a claim against Cap One. All of the recorded calls where they are feeding you legal conclusions maybe violations of the FDCPA, and will show the neccessary pattern.

You need to concentrate on first step which is to get this thrown out of your local court via MTC. Then you will see how happy the Hanna folks are..

Continue to follow the strategy, Cap One is loosing ground on these arb filings because for the most part they kept folks credit limits under $5k, most cases are around $2500 or less. Arb costs much more than these cases are worth, and they will settle or walkaway if you have some strong FDCPA violations.

[morgysgram]

Skippy, thank you.

I have multiple FDCPA against attorney/debt collector. A couple are: failure to validate. I sent them a VD letter when we received their dunning letter. Not only did they not respond in any manner they filed suit WITHIN the 30 day validation period. They are suing on a time barred debt based on their customer agreement so that is one of the reasons I want Virginia Law. They sent me a letter from their law office and it doesn't even have a signature although they said this office represents Capital One and we are trying to collect a debt. I thought in all my readings that that in itself is a violation. All communications from attorney needs to be signed. Their are several more I think I have around 8 FDCPA violations, I have FCRA violations as well as State violations.

I believe Cap One is on the hook too for using the courts to sue on a time barred debt also even though they are the original creditor. Is it possible to have complaint against Cap One for that violation?

Thanks and will keep you updated as to what happens tomorrow.

[Linda7]

Have you got your MTC already drafted and ready to go with you to court in the morning? Be sure to also include your Georgia code information on there as well.

Also, would like to see all your violations that you have against the OC and/or the attorney. I like to keep a list of possible violations and compare with what others are seeing. Someone else had mentioned a violation against the attorney for the window opening of the envelope exposing private information - you might want to check on that too!

[OnTheWarPath]

You mentioned in your posting that you had elected Arbitration in your DV letter. If you have the green card and a copy of that letter, that would be good to hold onto. From what I understand, if you elect Arbitration prior to being served and they continue with a law suit, that would be another FDCPA violation to add to your list.

[morgysgram]

Hello everyone:

Just wanted to let everyone know we went to court (Magistrate) GA today. The lawyer representing Cap One was also their representing, LMV Funding, Midland, Cap One and one other I can't remember. So they called his cases first. I watched 6 people go before us. 4 of them received judgment against them, two entered into payment arrangements, then their were two that didn't show so of course they got a default judgment. Then it was our turn. They called my husband and I went up to the judge with him. Plaintiff attorney basically told the judge we owed 1500.00 dollars. Judge ask my husband what he had to say. I swear my husband is never ever quiet but he kinda was stumbling up there so I ask the judge if I could speak. He allowed so I pulled out our MTC and told the judge I would like to file a MTC private arbitration. Little young attorney said he didn't think that would be necessary. Judge told us they had mediators in the court room and we could go speak with them. Of course attorney was all for that. Told them NO we wanted private arbitration. Judge wanted to know why we did not want to use the State mediators since they are provided free of cost at which I stated because I didn't think we would have any different outcome with them than we would in the court. I do not think the judge liked that. Next attorney asked again would we like to go talk to the mediators. Again told them NO. Attorney asked judge if we could go out in the hallway to speak. We go out there and he pulls out one statement from Sep 2007. Told him that wasn't going to get it done. He proceeds to tell us because it is original creditor they do not have to give us anything. I told him to blow that smoke at someone else. Told him if they wanted their case heard then initiate with one of the 3 forums as per the terms and conditions of the Customer Agreement that they provided. He said lets just dismiss. I asked for with prejudice. He informed me he didn't have the authority to do it with prejudice. So kinda a win. They dismissed. I told him fine but if they decide to refile then I would insist on private arbitration. So that is how it played out.

Thanks for all the assistance. I will continue to be here each and everyday. Now I have to answer the summons that Cap one sent to me. Guess I am going to go ahead and include my motion with my hearing. I asked judge. He said they do not hear motions til the day of hearing but I could file with my answer so that is the next step. I expect them to come back and refile my husbands case but we will be ready.