Jump to content

Just got served


Recommended Posts

1. Who is the named plaintiff in the suit? Midland funding

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) McCullough, Payne Hana

3. How much are you being sued for? 2700

4. Who is the original creditor? (if not the Plaintiff)citibank

5. How do you know you are being sued? (You were served, right?) served

6. How were you served? (Mail, In person, Notice on door) in person

7. Was the service legal as required by your state? Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Collectiions letters

9. What state and county do you live in? Cobb ga

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

They stated May 2010

11. What is the SOL on the debt? To find out:

It's within

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Served small claims

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)yes

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Yes

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

30 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Only a copy of a statement from the of and a bill of sale from the of with no identifying information

When they validated the debt the seared the balance was $5500 in the suit they stated its $2700.00. I will be denying everything, but I'm sure what I should put as my defense. They didn't even provide an affidavit from the jdb.

Link to comment
Share on other sites

Citi currently uses South Dakota choice of law which carries a 6 year SOL so no chance of applying that. Your only shot on SOL is if the agreement they give you has a choice of law for a different state with a lower SOL. I would plead a SOL affirmative defense just in case.

So the first order of business is filling an answer denying everything they claim that's not true and include some affirmative defenses. SOL, lack of standing and unjust enrichment are probably the most important ones.

If you read around here you'll find Midland is one of the first to fold when properly challenged.

Link to comment
Share on other sites

You can fight this in court using the info in this forum or you can use arbitration to take it out of court.

 

 

The cost strategy of arbitration and why it works for the consumer

 

http://www.creditinfocenter.com/community/topic/309878-the-cost-strategy-of-arbitration-and-why-it-works-for-the-consumer/

 

 

 

These links show how a person defended a debt collection case in court after being sued in Georgia.  Read all the files as it takes you through the whole process.

 

http://www.scribd.com/collections/3042742/Frederick-J-Hanna-and-Associates-Midland-Funding-v-Sheridan-Gwinnett-Georgia

 

http://www.scribd.com/doc/51607569/06-12-2010-Defendants-Answer-With-Counterclaim-Midland-v-Sheridan

Link to comment
Share on other sites

Since it's Midland you're up against, I think you have a pretty good chance of beating them in court as opposed to arbitration. I'm saying that with literally no knowledge of how GA courts typically rule in contested JDB cases, so take what I have to say in your case with a grain of salt and as a good excuse to check it out for yourself.

  • Like 1
Link to comment
Share on other sites

@Public Enemy

These links show how a person defended a debt collection case in court after being sued in Georgia.  Read all the files as it takes you through the whole process.

 

http://www.scribd.com/collections/3042742/Frederick-J-Hanna-and-Associates-Midland-Funding-v-Sheridan-Gwinnett-Georgia

 

http://www.scribd.com/doc/51607569/06-12-2010-Defendants-Answer-With-Counterclaim-Midland-v-Sheridan

This first link is dead...

Link to comment
Share on other sites

See if these links work. I can't access them here at my company computer.

 

  1. Collector v McDonald State Court DeKalb County, GA - Scribd
    www.scribd.com/.../Collector-v-McDonald-State-Court-DeKalb-County-...‎
    •  
     
    Sep 17, 2010 - Bill Collector filed suit against McDonald in state court. ... IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA PORTFOLIO ...
  2. Georgia Junk Debt Assignment Case Law - Scribd
    www.scribd.com/doc/.../Georgia-Junk-Debt-Assignment-Case-Law‎
    •  
    •  
     
    May 24, 2011 - Georgia Junk Debt Assignment Case Law. Ratings: (0)|Views: 4,095|Likes: 6. Published by Jillian Sheridan. A Collection of various cases that ...
  3. Cach LLC v Cain, State Court of DeKalb County, Order - Scribd
    www.scribd.com/.../Cach-LLC-v-Cain-State-Court-of-DeKalb-County-Or...‎
    •  
    •  
     
    May 24, 2011 - Judge's order filed in third party debt collection lawsuit case, Dekalb County Georgia. IN THE STATE COURT OF DEKALB COUNTY STATE OF 
  • Like 1
Link to comment
Share on other sites

Citi currently uses South Dakota choice of law which carries a 6 year SOL so no chance of applying that. Your only shot on SOL is if the agreement they give you has a choice of law for a different state with a lower SOL. I would plead a SOL affirmative defense just in case.

So the first order of business is filling an answer denying everything they claim that's not true and include some affirmative defenses. SOL, lack of standing and unjust enrichment are probably the most important ones.

If you read around here you'll find Midland is one of the first to fold when properly challenged.

 

Only problem is GA has a 6 year SOL as well and does not have a borrowing statute.  You also don't typically file an answer in MC.  You just show up.  No discovery and no motions.  Just a trial. 

 

Since it's Midland you're up against, I think you have a pretty good chance of beating them in court as opposed to arbitration. I'm saying that with literally no knowledge of how GA courts typically rule in contested JDB cases, so take what I have to say in your case with a grain of salt and as a good excuse to check it out for yourself.

 

Except the OP is in Magistrate Court (GA small claims) in the WEALTHIEST county in GA.  There is a good chance that the Magistrate will be a former judge or retired lawyer unlike rural counties where they may have no legal background at all.  It is an elected position.  

 

Second problem is GA relaxed its rules of evidence regarding affidavits and business records a couple of years ago closing off those avenues of objection.  

Magistrate Court does not allow discovery or motions prior to trial.  Even worse: you cannot appeal.  You MUST get it right the first time.  I highly recommend a consult with an experienced consumer attorney so that you are well prepared.  The typical JDB defenses may not work in Cobb County, GA.  

 

I looked up that law firm and this is NOT one of the robo filers in GA like Frederick J Hanna.  This firm is well respected and has A LOT of high profile corporate clients.  The carry a five star rating on Martindale Hubbel which is indicative of their superiority.  You REALLY should hire a lawyer if you can.  This one is not likely to be easy.

 

@debtzapper  All those case law defenses may no longer work.  They are all prior to 2012 when GA relaxed their laws on business records and affidavits.  Many JDBs and creditors withdrew cases that were not in danger of expiring around the end of 2011 and waited for the new laws they knew were coming into effect that would make it much easier to sue for defaulted debts.  If you can find case law dated 2012 or later that will help because those defenses will be under the new creditor friendly laws.

Link to comment
Share on other sites

Only problem is GA has a 6 year SOL as well and does not have a borrowing statute.  You also don't typically file an answer in MC.  You just show up.  No discovery and no motions.  Just a trial. 

 
 

 

Except the OP is in Magistrate Court (GA small claims) in the WEALTHIEST county in GA.  There is a good chance that the Magistrate will be a former judge or retired lawyer unlike rural counties where they may have no legal background at all.  It is an elected position.  

 

Second problem is GA relaxed its rules of evidence regarding affidavits and business records a couple of years ago closing off those avenues of objection.  

Magistrate Court does not allow discovery or motions prior to trial.  Even worse: you cannot appeal.  You MUST get it right the first time.  I highly recommend a consult with an experienced consumer attorney so that you are well prepared.  The typical JDB defenses may not work in Cobb County, GA.  

 

I looked up that law firm and this is NOT one of the robo filers in GA like Frederick J Hanna.  This firm is well respected and has A LOT of high profile corporate clients.  You REALLY should hire a lawyer if you can.  This one is not likely to be easy.

 

@debtzapper  All those case law defenses may no longer work.  They are all prior to 2012 when GA relaxed their laws on business records and affidavits.  Many JDBs and creditors withdrew cases that were not in danger of expiring around the end of 2011 and waited for the new laws they knew were coming into effect that would make it much easier to sue for defaulted debts.  If you can find case law dated 2012 or later that will help because those defenses will be under the new creditor friendly laws.

 

Yes, I now remember Norman or Normin of GA making reference to a change in GA's law.

Link to comment
Share on other sites

Changes in GA evidence law:

 

(9) Business Record Exception Allows Opinions—Under 

Georgia’s current business record exception, “conclusions, opinions, 
estimates, and impressions of third parties not before the court” are 
inadmissible.83 The new rules reject these limitations,84 though lay or 
expert opinions in the record still require qualification under the 
opinion rules.85 
(10) Business Record Exception Foundation by Affidavit—Current 
Georgia law requires a “qualified witness” to appear at trial and lay 
 
 79. Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285, 299–300 (1892). 
 80. See, e.g., Paul S. Milich, Hearsay Antinomies: The Case for Abolishing the Rule and Starting 
Over, 71 OR. L. REV. 723 (1992). 
 81. See, e.g., Mallory v. State, 409 S.E.2d 839, 841 (Ga. 1991) (finding declarant’s statement that 
she intended to meet the defendant later for coffee was inadmissible to prove that the two probably met 
for coffee); see also H.R. REP. NO. 93-650, at 13–14 (1st Sess. 1973) (“[T]he Committee intends that the 
Rule be construed to limit the doctrine of Mutual Life Ins Co. v. Hillmon, so as to render statements of 
intent by a declarant admissible only to prove his future conduct, not the future conduct of another 
person.”(citation omitted)). 
 82. GA. CODE ANN. § 24-8-803(3) (does not include “a statement of belief as to the intent of another 
person”). 
 83. Turner v. State, 541 S.E.2d 641, 645 n.2 (Ga. 2001) (citing Duncan v. State, 515 S.E.2d 388 (Ga. 
1999)). 
 84. Records of regularly conducted activity. Unless the source of information or the method or 
circumstances of preparation indicate lack of trustworthiness and subject to the provisions of 
Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, 
events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, 
events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a 
person with personal knowledge and a business duty to report; © kept in the course of a 
regularly conducted business activity; and (D) it was the regular practice of that business activity 
to make the memorandum, report, record, or data compilation . . . . 
GA. CODE ANN. § 24-8-803(6) (effective Jan. 1, 2013). 
 85. Id.; see id. § 24-7-701 (lay opinions); id. § 24-7-702 (expert opinions). 
16
Georgia State University Law Review, Vol. 28 [2011], Iss. 2, Art. 3
 
the requisite foundation for a business record.86 The new rules offer 
an additional option.87 A party can acquire a certification from the 
custodian or other person qualified to lay foundation for the record 
under the business record exception. The party must give all 
opposing parties advanced written notice of its intent to use the 
certification in lieu of live testimony and make the record available 
for inspection prior to trial.88 
This certification procedure is available in criminal cases for 
domestic records though nothing in the new rules changes any 
Confrontation Clause issues that might affect, in certain cases, the 
prosecution’s offer of records without the testimony of a live 
witness.89 
(11) Business Record Exception—”Integrated Records Rule”—
Georgia courts have struggled under the current business record 
statute with the problem of one business laying foundation for 
records received from a different business. The cases are inconsistent 
and have permitted, in some cases, a witness to “lay foundation” for a 
business record without any evidence that the witness has a clue as to 
how the record was produced.90 
 
 86. See MILICH, supra note 5, § 19:15. 
 87. See GA. CODE ANN. § 24-8-803(6). 
 88. Extrinsic evidence of authenticity as a condition precedent to admissibility shall not be required 
with respect to the following: . . . 
(11) The original or a duplicate of a domestic record of regularly conducted activity that would 
be admissible under paragraph (6) of Code Section 24-8-803 if accompanied by a written 
declaration of its custodian or other qualified person certifying that the record: 
 (A) Was made at or near the time of the occurrence of the matters set forth by, or from 
information transmitted by, a person with knowledge of such matters; 
 (B) Was kept in the course of the regularly conducted activity; and 
 © Was made by the regularly conducted activity as a regular practice. 
A party intending to offer a record into evidence under this paragraph shall provide written 
notice of such intention to all adverse parties and shall make the record and declaration available 
for inspection sufficiently in advance of their offer into evidence to provide an adverse party 
with a fair opportunity to challenge such record and declaration. 
Id. § 24-9-902. New Code section 24-9-902(12) is to the same effect regarding foreign records though it 
applies only in civil cases. 
 89. See generally Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (offering of records 
without live testimony). 
 90. See, e.g., Walter R. Thomas Assoc., Inc. v. Media Dynamite, Inc., 643 S.E.2d 883, 886 (Ga. 
2007); see also MILICH, supra note 5, § 19.15. 
17
Milich: Georgia's New Evidence Code - An Overview
Published by ScholarWorks @ Georgia State University, 2011396 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 28:2 
 
The new business record exception is based on the Federal Rule 
and takes advantage of the “integrated records rule” as developed by 
federal courts to address this problem. The basic requirements for the 
integrated records rule are (1) a business relationship between the 
business that initially made the record and the one who received it, 
(2) the recipient business routinely relies upon the accuracy of the 
record and integrates it into its own files, (3) the recipient business 
has a witness who is sufficiently familiar with how the originating 
business routinely prepared the record to establish that the record was 
made and kept in the ordinary course of business at or near the time 
of the events described in the record, and (4) circumstances support 
the trustworthiness of the record.91 
Link to comment
Share on other sites

How would i go about requesting arbitration.  Also I'm a little concerned about the lack of evidence they provided.  I only received one statement and a bill of sale without an identifing information on it.  Typically, I thought they provided an affidivat from the JDB, but that was not included.  I'm really shock about this because I've never had a card with this large of a balance.  Also I have a current card from the same OC and business that has a $200 balance and is current.  I've had this card for 5 years.  Another thing is when I DV'd them they sent a validation letter stating I owed $6,000.00 but the statement they include shows $2700.00

Link to comment
Share on other sites

I would brush up on your states rules regarding arbitration, specifically, at what point have you inadvertently waived your right to it.

For the case we were successful in, arbitration was elected prior to the answer, then as an affirmative defense, then two more times. We then made good on our promise to file a motion to compel when they served discovery. Once the motion was served on them, they served a request to dismiss.

Read the card member agreement from the OC, then read it again.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.