Dismissal without Prejudice Now What?

[kasy]

Hello.

This is my first post, but I've spent the last several weeks combing through the forums in preparation for the suit brought against me by Capital One and FJ Hanna. First, I'd like to thank everyone for all of the helpful information I found here. I felt completely prepared and confident when I went to court today. As we were waiting in the hall outside the Magistrate Court here in GA, several other defendants asked me if I was an attorney:) I told them no, but I'd spent a lot of time preparing my defense. I guess it was my impressive Motion to Compel Arbitration that got their attention (I was reading over all my docs and notes in the hallway.) Got the MTC template here and tweaked, so thanks.

Here's the entire story, and how I walked away with a dismissal. Let me just say that I received the complaint with Cap. 1 listed as the plaintiff and saying I owed over $5,000. The complaint only had 4 digits of an account number and a generic cardmember agreement attached. Nothing else. I had no idea how to answer the complaint, so I made some garbage answer saying that I admitted I owed something, just not what was being claimed. OK, stupid I know, but this was before I found this forum. After reading others' posts here, I was worried that I'd ruined things for myself with my answer. Anyway, we get to court and of course we're all sent outside to meet with the plaintiffs' attorneys. The guy for Hanna was there with tons of cases. I waited and waited, and from the looks on people's faces I got the impression that they all settled to avoid going back into the courtroom. I'd made my mind up that I would not cave, and I would not settle.

Finally, the Hanna attorney called me. I asked him what proof he had that I owed over $5,000. He pulled out one statement and some summary of the debt at the time it was charged off. I told him that was not sufficient proof and requested a full accounting of the balance including the following: all charges, including dates and amounts; all fees assessed against the account, including dates, amounts and reasons for fees; and all payments on the account, including the dates and amounts. The attorney says, "You really shouldn't rely on all that stuff you read on the internet. I feel fairly confident that I can win in court with what I have." I said that I doubted that. He then said, "Well, let me show you what we can settle this for." He punches some numbers in his calculator and comes up with $3,500, which he says I can pay over 48 months at $73.10 per month. I asked him if he could do better than that, since the credit limit on the card was only $2,500. He said no and that I should probably take his offer. I told him no. I said I'd like to take this to arbitration. I then told him that if he was unwilling to go to arbitration that I had a MTC, which I pulled out and handed to him. (It was totally professional looking). He said that he wasn't prepared to answer motions in Magistrate Court and asked if I wanted a dismissal. I said yes. He would not agree to a dismissal with prejudice, so I got a dismissal without. That's OK, I was happy to take it. Before he signed the dismissal, he said, "You know we can take you back to State Court on this, right? Are you sure you don't want to settle" I said that I definitely did not want to settle, I'd take the dismissal, and that I would request arbitration again in the event they tried to sue me again.

It was a good feeling to walk out of there today. Thanks again to all who have shared your success stories and strategies here. I couldn't have done it without you.

My only questions are, how likely is it that Cap. 1/Hanna will try to sue again in a different venue? And does anyone have experience with dismissal without prejudice in Magistrate Court only to have to go to State Court in GA?

Edited March 20, 2012 by kasy

[NeverServed]

Im going up against them now. I though had a judgement my alleged debt was less then 500.00 and they want over 2,000/ I filed a motion to dismiss with prejudice on the uniform judgement. Because I was never served never knew anything about the judgement. Hanna got their hands on it. I tried to settle with the bottom feeders but they wanted more then I offered which was still 3 times plus extra for the alleged debt. Nope they got greedy and wanted more plus my bank statements for 3 months I told them see you in court. I filed Im waiting to find out. With my case its my understanding that I dont get to talk to the judge, I just sumbit and wait. But How could they get a judgement against me in a state I hadnt lived in more then 2 years. and this was in 08 I moved in 06. Im praying the judge dismisses their crap. i got an attorney even who tried to settle with them but no luck.

Imho. I dont think they will try again or they may wait. They got tons of cases to get them rich. They are the lowest of the low! Im glad you stuck to it. If they do dont give in give those loosers a run for their money.

[kasy]

Hi NeverServed,

That doesn't make sense at all. Hanna and assoc. are the lowest of the low, but why would they waste all of this time and money on what's essentially a $500 debt, not to mention the fact that they've jacked it up to 4 times that now. I don't see how that can be allowed.

Good luck with your motion. What type court is this in?

[kittymamma]

YEAH good for you!!! I made a stupid answer to complaint too.....silly even but I had no idea on what to do or say other than I needed to answer so I answerd that since they were a junk debt buyer I owed them nothing, yes I actually sent that to the court lol but it must have been okay because they accepted it!!

I too then found this forum and lurked for months, I wouldnt have gotten as far as I am now without this board and my personal heroes!! I feel like I know our resident experts personally and even tell people about them as in "Coltfan says.....and Legaleagle said.............they saved my case before I ever posted.

My JDB is Midland, we went thru all the stuff....discovery, pre trial by phone where the lawyer said they were going to file for summary judgment when the magistrate asked them their next move, I really felt like he was on my side and wanted me to be aware of what to expect....I played dumb and asked if the court would let me know what was going on so that Midland could not sneak anything against me, he told me yes they would let me know and that I had time to prepare...

I prepared alright, I hit them with a Motion for Summary Judgment right after that, attorney opposed of course but made a major boo boo saying that it is 'infeasible' for the bill of sale to have my name and account on it because Midland buys in bulk.....Coltfan kindly supplied me with a wonderful response to THAT nonsense and I mailed out my oppostion to their oppostion yesterday,, all notorized etc......not sure if I needed that but I wanted to do everything in my power to make everything all legit and nice and neat....am waiting now to hear what happens next, I can only hope Judge will have a good laugh at them and rule in my favor, or that silly little attorney fresh out of law school realizes how stupid she sounded and doesnt pursue it further....will let everyone know as soon as I know

[legaleagle]

My only questions are, how likely is it that Cap. 1/Hanna will try to sue again in a different venue?

Unlikely, as they would have pursued this if they had the goods. They will probably sell it off to a junk debt buyer.

[debtorshusband]

My only questions are, how likely is it that Cap. 1/Hanna will try to sue again in a different venue? And does anyone have experience with dismissal without prejudice in Magistrate Court only to have to go to State Court in GA?

OK, I have no personal experience like yours, and don't even live in Georgia. But I think you know the answer, based on their actions: They rely on obtaining default judgments from people who don't respond to the lawsuit at all, or on making their money from people who tuck their tails between their legs and walk away. When someone stands up to them, they back off. Like the bullies they are.

I tip my hat to you; it looks like you did an outstanding job of standing up for yourself.

Regards,

DH

[kasy]

Thanks, DH.

I feel like a huge weight has been lifted.

For legaleagle, let me preface this by saying I may be asking a stupid question; however, I'm a newbie here so please bear with me. If they sell the debt to a JDB, do they automatically refile in a higher court since the OC dismissed without prejudice in magistrate? I just want to be prepared for all possible actions that may arise.

[NeverServed]

Hi NeverServed,

That doesn't make sense at all. Hanna and assoc. are the lowest of the low, but why would they waste all of this time and money on what's essentially a $500 debt, not to mention the fact that they've jacked it up to 4 times that now. I don't see how that can be allowed.

Good luck with your motion. What type court is this in?

It shouldnt be allowed. I read something here the other day about a bill in the ga system which would make jdbs say what they paid for the debt. and only be able to collect that and intrest on top. I didnt save it though so if Anyone else remembers who posted that or what I am talking about could you please link me to it.

They are representing the OC so they stand to get a good deal. THe funny thing is if it wasnt for that judgement in 08 its past sol. So now to get it dismissed its in state civil court. I dont know if it will get dismissed or not. Or whats going to happen to be honest. It should be dismissed.

GOOD LUCK on yours!

[usagi555]

Just goes to show that a bad answer can be better than no answer.

[legaleagle]

For legaleagle, let me preface this by saying I may be asking a stupid question; however, I'm a newbie here so please bear with me. If they sell the debt to a JDB, do they automatically refile in a higher court

I doubt it, the amount of money sued for determines the court level. The only stupid question is the one you never ask. Work on being collection proof now that there are no suits against you.

[KentWA]

If Cap1 sells it to a JDB, the JDB will likely not even know it has been to court. Now you know how to deal with them you can slap a JDB with a DV and they are likely to just move on to the next person that does not DV them.

[1stStep]

Thanks, DH.

I feel like a huge weight has been lifted.

For legaleagle, let me preface this by saying I may be asking a stupid question; however, I'm a newbie here so please bear with me. If they sell the debt to a JDB, do they automatically refile in a higher court since the OC dismissed without prejudice in magistrate? I just want to be prepared for all possible actions that may arise.

Without prejudice means they can come back and refile in the same court...

I doubt they will refile, you're on the list of people who fought back...

[kasy]

1st Step,

I'm not so sure about that. Here's an update.

Just received a letter from ARS, representing Cap. 1 for the same account. It looks like Hannah and Assoc. sent it back and now Cap. 1 has given (not sure if they've sold it or not) to this new outfit and are going to try to collect again. I'm sending the DV letter to ARS today stating that I deny the validity of the entire debt. Guess we'll see where it goes from there. Sigh.....