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Hi gang,

I found out I was going to be sued by the "good" people at Hannah and Assocs in Dekalb, GA court.

I have multiple CCs totalling $37k. (Long story ex-wife went crazy <sigh>).

None of these are past the SOL. So I'm SOL there! *rimshot*

Anyways, this particular card (Cap One) is over $5k. I called up Hannah and offered them $1k (that's about what I could scrape together) to close the account and the guy laughed at me saying Cap One would take nothing less than 65 cents on the dollar. ;P

That same night I was served (technically my gf was as I wasn't home and she did not sign anything either).

How do I proceed? Do I file a statement of claim answer/counterclain stating that I did not owe this debt? Or is there another course of action I should take?

Finally, there is another Cap One card with Hannah about to go to summons very soon. At least that's what they told me on the phone.

Thanks so much in advance.

Edited by RictusGrin
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I found out I was going to be sued by the "good" people at Hannah and Assocs in Dekalb, GA court.

I have multiple CCs totalling $37k.

No offense, but you might as well put your full name, address and social security # so they can use it against you. You know, lawyers do actually read these forums every now and then.

None of these are past the SOL. So I'm SOL there! *rimshot*

What is this supposed to mean? If "None of these" past the SOL how can you be SOL?

I would also be very careful trying to settle anything with them. Because offering settlement on your part can mean you agree to the debt. Only if you really don't want to deal with a 7 year CR, you can try to negotiate, but it will not likely be less than 40% of what you owe, although things happen... If it's already been more than 4 years, then I wouldn't even consider settlement - you only have 3 years left and the SOL "on account" suits is 4 years in GA, so they can't do too much to you at this point and your CR will stay messed up for the 3 years anyways. You really won't be getting anything in return by paying them even a dime at this point.

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Guest usctrojanalum
heck yeah you file an answer and counterclaim. threatening legal action is a fdcpa violation!

Threatening legal action is not an FDCPA violation if you intend to take that action, which Hanna most certainly will.

What is this supposed to mean? If "None of these" past the SOL how can you be SOL?

Whooooosh. It was OP's attempt at humor and the joke sailed right over your head. When he is saying SOL in the latter part of the sentence, he does not mean statute of limitations.

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Whooooosh. It was OP's attempt at humor and the joke sailed right over your head. When he is saying SOL in the latter part of the sentence, he does not mean statute of limitations.

I have completely forgot about the other SOL... My bad :)

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Correct I was making a bit of joke with "SOL" ;)

It's been about 14 months or so since I had to stop paying. Became unemployed (although I am employed now).

So how do I avoid garnishment of my wages? Aside from Gowyo...is file an answer and counterclaim still the recommended path?

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That same night (April 1st) I was served (technically my gf was as I wasn't home and she did not sign anything either).

No signature is required in GA to be served. If they served your gf, that's considered being served.

How do I proceed? Do I file a statement of claim answer/counterclain stating that I did not owe this debt? Or is there another course of action I should take?

I really hope you have never ever admitted verbally or in writing to them that you actually do owe them something. Even if you said something like "... my account ...'" - oops, you just admitted that and they most likely have a phone record to prove this.

Find out exactly who is the real party of interest here, is it the Cap One or Hanna? If it's the first one, then you are in trouble because they are the OC (original creditor) and it's a lot harder to win against them, although not impossible, but if it's the 2nd, then you have a very good chance to tell them to piss themselves off in court in front of a judge :).

Do file the answer BEFORE the 30 days is up after you were served.

What kind of court are they suing you in? Magistrate or State?

Also what type of lawsuit did they file - "on contract" or "on account"?

These answers will determine how you should proceed next.

http://lexisnexis.com has a complete law reference for Georgia state, but there are other laws and court rules that you need to research, including federal laws - FDCPA, FDCRA, UCC, TILA and many others. Read up the starting guides on this website, look up forums and go the law library to get a "practice guide" so you can see how these cases are trialed. Also there is a book called "Stick it to ... debt collectors", or something like that written by Alan ... a guy from Georgia who defended numerous lawsuits against JDBs. It's also very informative, although IMO not quite sufficient to be 100% prepared.

Me too going through the same crap in GA for the first time, but I feel sort of confident that I have enough info to squeeze the guts out of these animals, legally speaking of cause... :)

Edited by MrPunch
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Plantiff is listed as Cap1, however couldn't that just be Hannah stretching the truth?

Also what type of lawsuit did they file - "on contract" or "on account"?

Says "Complaint on Credit Card Account" Suit on account is checked.

Also my credit report says that Cap1 cards are charged off. Not sure if that makes any difference.

Civil File Action has no Number in the line to fill out. It's blank.

Magistrate court case.

Edited by RictusGrin
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Call the Magistrate court to verify if they indeed filed the case. It should have a case number listed on your summons and I'd be very suspicious why it doesn't. They can search by last name to look for your case. Make sure you know how much time you have left to file an answer.

If the account is listed "charged off" it usually means it was sold or assigned to a JDB and CrapOne is not the real party in interest. This could be one of your defenses against them. It could also mean they simply didn't report it to CRA correctly, which I believe is a violation of FDCRA, but I am not sure. But in 99.99% cases it's a JDB lying through their teeth and dumping a bunch of BS on you.

If it is indeed a JDB - send them a Debt Validation letter (look it up, here is one from this site: http://www.creditinfocenter.com/rebuild/debt_validation.shtml) and a Cease Desist (C&D) letter. They will most likely fail to validate and you will have a $1000 counterclaim against them.

File an answer along with a "sworn notarized affidavit" and as many valid counterclaims that you can come up with, the more $$$ you have against them, the more likely they will try to either settle it for a lot less or back away completely

Issue a subpoena for documents - don't confuse this with a Discovery "request to produce documents", which wouldn't apply in Magistrate court. Request every piece of information they might have against you. Do everything with a CERTIFIED REGISTERED MAIL (CRM) to prove this evidence in court. If you have to call them - record it, but don't tell them that you're recording them - in GA you don't have to. They will likely not want to give you ANY info, which is why you'll have to subpoena their a**. If they don't produce ANY of the required documents and accounting statements from day 1 then you you should have a pretty good case against these bas**rds, this way you can "motion to strike", MTS, every other "evidence" they will attempt to submit at trial as invalid evidence because you have placed a request for such evidence and by law to get a fair trial you have a right to examine the evidence and cross-examine any witnesses in the time allowed. Just keep working on it and research as much as you can and the more you know, the better idea you will have who these people really are. But again, don't admit to anything if you don't want to just give it up.

Regardless of what you find out, all the information you obtain will be helpful in either negotiating or litigating with these folks and should save you money and possibly more trouble down the road.

I wish you luck!

Edited by MrPunch
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Hi. I was also sued by Hanna for about the same amount (5k). Interestingly, I was sued in GA Superior Court so I guess they are trying out different venues to see what works best. I hired a lawyer and it was a long court battle but we prevailed. I can give you the contact info for the lawyer I used if you want.

Not a good idea to talk to Hanna over the phone. Don't admit anything. They usually have nothing that is admissible in court, but they can be tricky. You can go pro se but be sure you know what you're doing.

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Thank you so much for all your responses.

First is there an acronym definition page all of these new to me acronyms? :D

Call the Magistrate court to verify if they indeed filed the case.

It appears there is indeed a case.

If the account is listed "charged off" it usually means it was sold or assigned to a JDB and CrapOne is not the real party in interest. This could be one of your defenses against them. It could also mean they simply didn't report it to CRA correctly

Interesting.

File an answer along with a "sworn notarized affidavit" and as many valid counterclaims that you can come up with, the more $$$ you have against them, the more likely they will try to either settle it for a lot less or back away completely

I've read elsewhere on the forums that DV is a pointless strategy once it goes to court.

I'm considering getting a competent local attorney versed for this. It might, in the end, save me cash and alot of headache/time. Thoughts?

Finally, is there a good "answer" letter for the courts?

Edited by RictusGrin
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I've read elsewhere on the forums that DV is a pointless strategy once it goes to court.

You might be able to use a DV letter as an "exhibit" or supporting document along with your answer. But DV'ing by itself won't help once the case is filed in court.

I'm considering getting a competent local attorney versed for this. It might, in the end, save me cash and alot of headache/time. Thoughts?

I agree with you that hiring a competent local attorney is a very good idea. It is cheaper than trying to pay off debts that may not be valid.

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I'm considering getting a competent local attorney versed for this. It might, in the end, save me cash and alot of headache/time. Thoughts?

It's an option, but expensive and may cost you more than you would pay for a settlement. It is really hard to find a good and competent attorney that will do more than a bare minimum for a small case like this. If it was a State Court and your debt was over 20K - I would recommend one, but for a Magistrate court and this amount you might be better off doing it yourself. Magistrate (Small Claims) courts are a lot less complicated.

I have seen a lot of folks here, including folks from GA, burned out with choosing crappy lawyers that did a lot less for them than they did themselves. And a lot of those lawyers didn't even know the law better than the client did... I have called lawyers locally and one of them told me that I should file a bankruptcy... What? He didn't even hear my situation completely, had no will to fight and it didn't matter that this JDB had showed zero evidence of their claim. And either way, bankruptcy should be your very, very last choise, only after you have completely exhausted all other options. But my guess is bankruptcy law was all he knew how to do even though he advertised himself as a collection lawyer.

I've read elsewhere on the forums that DV is a pointless strategy once it goes to cour

It's true that DV'ing won't stop them at this point, but you should still do it, because they will most likely fail to comply and you will have a solid $1000 counterclaim under the FDCPA and yet just another reason to scare them off. It can certainly do no harm for you if you send them a DV (other than a $5 charge from CRM). Remember, every little piece helps you to build your case or your negotiating strategy.

Edited by MrPunch
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Guest usctrojanalum

It's true that DV'ing won't stop them at this point, but you should still do it, because they will most likely fail to comply and you will have a solid $1000 counterclaim under the FDCPA and yet just another reason to scare them off.

Meh, not really. Number 1, the DV is likely not timely anyway. Hanna does send dunning notices, and he likely sent the dunning notice a month before he filed and served the summons.

Number 2, assuming the DV was timely. The claim would not be against Cap1, it would be against Hanna. So OP could not successfully 'counterclaim' because Hanna is not a party to the lawsuit. If OP felt he had a legitimate cause of action he would have to file a separate lawsuit.

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assuming the DV was timely. The claim would not be against Cap1, it would be against Hanna. So OP could not successfully 'counterclaim' because Hanna is not a party to the lawsuit. If OP felt he had a legitimate cause of action he would have to file a separate lawsuit.

There is no clear evidence at this point who is the real party in interest, so he can DV anyone who send him a letter, whether it's Plaintiff or their lawyer, who "represents" the plaintiff. If the plaintiff is an OC, then DV'ing won't help, but after all he can still add it as counterclaim against the Plaintiff and let the court to make an appropriate decision whether it was valid or not. In the end everything is in the hands of the judge and judges rule differently, but it can not possibly hurt him at this point to send a DV. This is my personal opinion and a recommendation. I am willing to help, but I am no legal expert, so make your own decisions in the end of the day.

Edited by MrPunch
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You need to check your credit report. I'm sure that Capital One still owns the debt and this will be reflected in your credit report. If they sold the account, it would be listed as transferred or sold. If it only shows a charge off, they still own the account. They do this all the time. Often they will even "charge off" for one amount, yet the debt they try to collect will even be larger as they have continued to add interest.

Going up against an OC is difficult as they usually have all the evidence they need to prove the debt. In Georgia, you are also facing a SOL of 6 years for credit card debt.

If I were you, I would MTC arbitration immediately and get this out of the court. Then you don't have to go by Georgia state court rules nor necessarily be stuck with Georgia's SOL. You can argue the contract's own language and use Virginia's SOL of 3 years if that would help your case. Even if SOL would not help, choosing arbitration on a debt this small could even get the OC to dismiss the case as it will cost them quite a bit in arbitration. It usually costs them "more" to arbitrate than the debt is, so they often decide to walk away. Even if they do decide to arbitrate, because of the costs - it can get you a better settlement offer. Or even if you can't settle and even if you lose, you have lost nothing more than what you would have lost in court if you're faced with a judgment. In arbitration even if you do lose and they get a judgment, they have to go back to court to get it confirmed and sometimes they fail to do this. And with an OC like Capital One - it says in their agreement that you can elect arbitration even when you're in court, so it's not too late.

On the other hand, anyone that has not yet been sued - if you elect arbitration in your DV letter to either an OC or a JDB and they ignore your election and sue you - you have a good violation against them.

You need to go to debtorboards where this is studied more in depth. Post where you are with your case and the relevant information. Here is their link - http://www.debtorboards.com/index.php?action=forum :)++

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You need to check your credit report. I'm sure that Capital One still owns the debt and this will be reflected in your credit report. If they sold the account, it would be listed as transferred or sold. If it only shows a charge off, they still own the account. They do this all the time. Often they will even "charge off" for one amount, yet the debt they try to collect will even be larger as they have continued to add interest.

Going up against an OC is difficult as they usually have all the evidence they need to prove the debt. In Georgia, you are also facing a SOL of 6 years for credit card debt.

If I were you, I would MTC arbitration immediately and get this out of the court. Then you don't have to go by Georgia state court rules nor necessarily be stuck with Georgia's SOL. You can argue the contract's own language and use Virginia's SOL of 3 years if that would help your case. Even if SOL would not help, choosing arbitration on a debt this small could even get the OC to dismiss the case as it will cost them quite a bit in arbitration. It usually costs them "more" to arbitrate than the debt is, so they often decide to walk away. Even if they do decide to arbitrate, because of the costs - it can get you a better settlement offer. Or even if you can't settle and even if you lose, you have lost nothing more than what you would have lost in court if you're faced with a judgment. In arbitration even if you do lose and they get a judgment, they have to go back to court to get it confirmed and sometimes they fail to do this. And with an OC like Capital One - it says in their agreement that you can elect arbitration even when you're in court, so it's not too late.

On the other hand, anyone that has not yet been sued - if you elect arbitration in your DV letter to either an OC or a JDB and they ignore your election and sue you - you have a good violation against them.

You need to go to debtorboards where this is studied more in depth. Post where you are with your case and the relevant information. Here is their link - http://www.debtorboards.com/index.php?action=forum :)++

Linda, that's a good point about the CR, although Georgia SOL is 4 years for suits "on account", and 6 years for suits "on contract". His suit is "on account". And why would VA law and SOL apply here? Is it because Cap1 is in VA? Either way, the OP mentioned that it's only been a year and half since he stopped paying. If it is the OC, then the SOL would make no defense for him whatsoever, but the arbitration might help him, although they already filed a lawsuit so he will probably have to state it in his answer. No DV letter was sent.

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Linda, that's a good point about the CR, although Georgia SOL is 4 years for suits "on account", and 6 years for suits "on contract". His suit is "on account". And why would VA law and SOL apply here? Is it because Cap1 is in VA? Either way, the OP mentioned that it's only been a year and half since he stopped paying. If it is the OC, then the SOL would make no defense for him whatsoever, but the arbitration might help him, although they already filed a lawsuit so he will probably have to state it in his answer. No DV letter was sent.

In Georgia - just try 4 years and see what happens. Since the Hill case vs Am. Express in 2008 . . . they view credit cards as 6 year SOL. Capital One's agreement says that Virginia will be the governing law. Of course in Georgia, they are going to use Georgia's laws (procedural vs substantive) in the courtroom. However, if you get out of the court and use private arbitration, you can then argue the contract's own language and then you're back in the ballgame with the shorter SOL of Virginia. Of course with him paying 1 1/2 years ago - the SOL won't help, but I put that in for others to see. But, still arbitration against an OC especially for an amount this small would be a better option for the poster of this thread. If they have not been served a summons yet, you can send immediately a letter of election of arbitration to the plaintiff's attorney. If they ignore and file suit - you have an automatic violation against them. Then you would answer your summons and also have listed that it is not the correct venue as you had elected private arbitration as per the cardmember agreement. You need to have an agreement and have that arbitration provision highlighted to show the judge and have a copy of the letter you sent to the attorney electing arbitration and your green card to show they received it. This should get the case dismissed or stayed pending arbitration. If you initiate and the Judge may say you need to do so - initiate if possible with JAMS as it is more costly for the plaintiff. The consumer's costs are capped at $250 and you can request a waiver or that the OC pays your part. The OC's costs skyrocket to thousands - thus ususally getting a quick dismissal as they don't want to pay the fees or they start offering you better settlement offers. And remember, if you have violations against them . . . you're even in a better situation!

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Since the Hill case vs Am. Express in 2008 . . . they view credit cards as 6 year SOL

This NOT true!. Hill vs AMEX was filed as a "suit on contract", but Mr Hill was saying that since he didn't SIGN any contracts then he should be awarded a 4 years SOL, but the court ruled that his case was contractual regardless whether the signature took place, because contracts can be either Expressed (signed) or Implied (not signed, but otherwise agreed upon) and hence awarded the 6 years, but the main thing here is that the Plaintiff CLAIMED the suit ON CONTRACT. If Plaintiff CLAIMS the suit ON ACCOUNT stated or whatever, as they did in his case, then the Plainiff REJECTS any rights a 6 years SOL by doing so by law. Georgia law hasn't changed just because of the suit of AMEX vs HILL and you have to point this out to a judge, because judges themselves don't always know the difference.

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This NOT true!. Hill vs AMEX was filed as a "suit on contract", but Mr Hill was saying that since he didn't SIGN any contracts then he should be awarded a 4 years SOL, but the court ruled that his case was contractual regardless whether the signature took place, because contracts can be either Expressed (signed) or Implied (not signed, but otherwise agreed upon) and hence awarded the 6 years, but the main thing here is that the Plaintiff CLAIMED the suit ON CONTRACT. If Plaintiff CLAIMS the suit ON ACCOUNT stated or whatever, as they did in his case, then the Plainiff REJECTS any rights a 6 years SOL by doing so by law. Georgia law hasn't changed just because of the suit of AMEX vs HILL and you have to point this out to a judge, because judges themselves don't always know the difference.

You better believe they don't always know the difference and unfortunately, a lot of them don't want to know. Time and again, they have "overlooked" the 4 year and stuck the consumer with the 6 year.

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You better believe they don't always know the difference and unfortunately, a lot of them don't want to know. Time and again, they have "overlooked" the 4 year and stuck the consumer with the 6 year.

Usually that happens if the consumer doesn't know the difference that I pointed out, but otherwise you have a very strong argument for a 4 years as allowed by law. No competent judge can argue here, and if they do then you appeal to a higher court until you get the actual law on your side and not some judge's personal opinion.

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BTW, have you seen any court rulings in favor of the consumer using the 4 year SOL on credit cards "since" the 2008 appeal ruling? I'd love to research some cases if you know of any. :)++

...hmm. MustangGirl? I believe her lawyer tried to argue Hill vs Amex, but I could be wrong.

Edited by MrPunch
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In addition AMEX was the Original Creditor to state that claim, with JDB there is no actual contract between the consumer and the Plaintiff, so again, 4 years SOL.

But again to qualify for a 6 years you have to file the case "on contract". If you willingly CHOOSE to file it "on account" then you're waiving your rights to argue the case as if it was "on contract" because there are 2 different sets of laws that govern the entire case based on how you CHOSE to file it and you can't mix one with the other.

Edited by MrPunch
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In addition AMEX was the Original Creditor to state that claim, with JDB there is no actual contract between the consumer and the Plaintiff, so again, 4 years SOL.

But again to qualify for a 6 years you have to file the case "on contract". If you willingly CHOOSE to file it "on account" then you're waiving your rights to argue the case as if it was "on contract" because there are 2 different sets of laws that govern the entire case based on how you CHOSE to file it and you can't mix one with the other.

I guess we will have to agree to disagree - Unless you can show us some cases where the 4 year SOL was used by the consumer and was the basis for a dismissal. :)++

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