Just got served

[scobysnx]

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.

[Harry Seaward]

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.

[scobysnx]

Thanks for the response. I've been reading up and it seems they just try to scare people into settling.

[scobysnx]

.

[Public Enemy]

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

[Harry Seaward]

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.

[Harry Seaward]

@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...

[debtzapper]

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 

[Clydesmom]

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.

[debtzapper]

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.

[debtzapper]

Pgs 394-400 analyze the change in GA evidence law

 

http://scholarworks.gsu.edu/cgi/viewcontent.cgi?article=2247&context=gsulr

[Clydesmom]

Pgs 394-400 analyze the change in GA evidence law

 

http://scholarworks.gsu.edu/cgi/viewcontent.cgi?article=2247&context=gsulr

 

THAT'S the one.  This law firm will NOT make stupid mistakes even if Midland is their client.  The new rules of evidence made their job even easier.

[debtzapper]

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; ( 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

http://scholarworks.gsu.edu/gsulr/vol28/iss2/32012] GEORGIA'S EVIDENCE CODE 395 

 

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; 

 ( 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 

[Public Enemy]

Arbitration is looking better and better in GA.

 

I never had a Citibank card but I seem to recall they only had AAA and NAF in their agreements.  AAA should still be good enough to get rid of this case given the relatively low dollar amount and unwillingness of Midland to throw good money after bad in arbitration.

[HotWheels96]

Electing arbitration is how we just beat them. The dollar amount is close to what it was in this case. However, the underlying agreement called for midland to pay the WHOLE arbitration fee. That makes it an easy decision for them, so I would consider that.

[scobysnx]

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

[HotWheels96]

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.

[Public Enemy]

The balance can reflect a huge amount of fees and interest that were not there when the card went into default.

 

Do you think the card is not yours?

 

You can check your credit report for free, once per year, at AnnualCreditReport.com and see what is shows for the card in question.