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I am having great difficulty with drafting a motion to dismiss for failure to name the real party in interest. I am in Georgia and would appreciate any help. I've followed the advice on this forum and called the OC who informed me that the debt was SOLD to AACA. The people suing me are junk debt buyers but state they are representing the OC on my summons.

Also, I did a discovery letter but it is in magistrate court so they don't have to comply.

Any assistance will be greatly appreciated. I have a court appearance pending on the 14th and want this in prior to then.

Thanks.

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The same here, magistrate court in GA. Did you file an answer?

It's true that there's no formal discovery in Magistrate court - in fact the whole Civil Act - Title 9 Chapter 11 doesn't apply to Magistrate courts. Look up Magistrate court laws.

But you CAN AND MUST file a subpoena for documents if you want to win this case and if you have enough time left to do so. I would call a court's clerk and ask them to what you need to do to subpoena these jerks. I would also seek an extension/continuance from the judge so you can obtain the proper documents and examine them before the trial to be able to get a fair trial, but the judge may deny this request.

Edited by MrPunch
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What does it show on your credit report? That would be some good ammunition to prove that the OC does not still own the debt.

Keep in mind though, even if/when the correct plaintiff is identified - the JDB can file again under the correct name. I hope that you will use this as a counterclaim against them now and then you could trade out for a dismissal "with" prejudice and make sure you stipulate that they won't sell the debt. That will bring an end to this. :)++

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Thanks for the information. I don't think that I will have time to get a subpoena but am working on a continuance right now. If granted, I will do the subpoena.

If you have till the 14th, then I think you have time to do file a subpoena. As far as I remember you can subpoena up to 24 hours before the trial, but I could be wrong. Check with a clerk and the court rules.

....you could trade out for a dismissal "with" prejudice and make sure you stipulate that they won't sell the debt.

If the case is dismissed "with" prejudice then they can't really sell it to another JDB. Also no JDB would be willing to buy a case with prejudice.

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I am having great difficulty with drafting a motion to dismiss for failure to name the real party in interest. I am in Georgia and would appreciate any help. I've followed the advice on this forum and called the OC who informed me that the debt was SOLD to AACA. The people suing me are junk debt buyers but state they are representing the OC on my summons.

How does the plaintiff word their allegation that they represent the OC? If it's something along the lines of "assignee of the OC" then I'm sorry to say pursuing a motion to dismiss on those grounds alone will probably be a waste of time. I only know because I was going to try to pursue this angle and quickly discovered my interpretation of the complaint was flawed.

I know in my case the complaint and summons I was served with read something along the lines of

"The Plaintifif, Worthless Junk Debt Buyer; assignee of Crapital One"...

They also refer to the alleged OC throughout as the assignor. This is a little misleading and confusing for a pro se because it gives the impression that the OC is still somehow involved or that the plaintiff is somehow still an agent of the OC. While admittedly confusing, it does NOT constitute the plaintiff falsely making a legal claiming that they are representing the OC if that is all they said.

The term "assignee" and "assignor" have different legal definitions than you or I might think. Basically "Junk Debt Buyer;assignee of Craptial One" is a bunch of legalease to point out that the alleged original creditor doesn't own the debt anymore. It cleverly states that the junk debt buyer was allegedly assigned the debt and all the rights and interest to it. In other words...the JDB bought it from the OC and the OC has no real interest in the debt anymore. If they just said it in plain English then maybe they'd have a few more people a month fight back and challenge things.

Of course I'm assuming that's what your summons/complaint said...if it that isn't the case let us know and we can offer some further feedback.

If you are thinking of filing a motion to dismiss based ONLY on the fact that the complaint has something like "Junk Debt Buyer;assignee of Crapital One" it's probably going to be a waste of time. The Plaintiff's attorney will quickly educate you (and everyone else) what the terms assignee and assignor mean. They'll promptly state they are the Plaintiff and NOT the OC and that they were merely stating the assignment of the debt as required of them in their original pleading. I could be wrong..but that was what I took after researching this angle.

That doesn't mean you couldn't possibly still motion to dismiss on other grounds...like the fact that you haven't been provided with any information to prove that the JDB actually purchased and was truly assigned all of the rights and interest to the alleged account.

Edited by SingleDadJames
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If you have till the 14th, then I think you have time to do file a subpoena. As far as I remember you can subpoena up to 24 hours before the trial, but I could be wrong. Check with a clerk and the court rules.

If the case is dismissed "with" prejudice then they can't really sell it to another JDB. Also no JDB would be willing to buy a case with prejudice.

You'd be surprised! The only good thing is that you make sure you have your "with" prejudice copy from the court and then you'd have to send the new JDB a copy of that. And they do sell them. However, if you stipulate that they will "not" sell them and they do . . . then you have a claim for a suit against them (the old JDB) and a defense against the new JDB.

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You'd be surprised! The only good thing is that you make sure you have your "with" prejudice copy from the court and then you'd have to send the new JDB a copy of that. And they do sell them. However, if you stipulate that they will "not" sell them and they do . . . then you have a claim for a suit against them (the old JDB) and a defense against the new JDB.

Good point. But I would also sue/counterclaim the new JDB for buying and pursuing debt that was dismissed by court, assuming that you let them know that the case has been dismissed but they still chose to proceed with the case. This way you'll have 2 lawsuits in your favor and twice the $$$ :)

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Good point. But I would also sue/counterclaim the new JDB for buying and pursuing debt that was dismissed by court, assuming that you let them know that the case has been dismissed but they still chose to proceed with the case. This way you'll have 2 lawsuits in your favor and twice the $$$ :)

You shouldn't try to sue the new JDB for buying or pursuing a debt that was dismissed in court, unless you have shown them the evidence from court via letter, CRRR and upon receipt - if they still continue to pursue you - then you've got them. :)++

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You shouldn't try to sue the new JDB for buying or pursuing a debt that was dismissed in court, unless you have shown them the evidence from court via letter, CRRR and upon receipt - if they still continue to pursue you - then you've got them. :)++

Linda, that's the same thing I said, sue them only "assuming..." that you have informed them about the debt being dismissed.

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