wls1012

Filing Response to MSJ in GA

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I have almost completed my response to summary judgment. My question is in GA State Court do I have to file a motion to strike affidavit, motion to strike bill of sale, motion to strike credit card statements, motion to strike computer printout of alleged account, motion to strike....basically everything they included as evidence or an affidavit with the summary judgment?

 

Being sued by Midland in Wayne County State Court in Georgia.

I have filled my answer. Gone through discovery.

Now they filed a Motion for Summary Judgment.

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The most important thing to do is reply to their MSJ within the time frame allowed in GA.  You have to get this action back to a regular trial.  Any pre-trial motions at this point won't help you much if the Judge rules on the MSJ for the Plaintiff. Usually lack of complete discovery or missing documents you have requested but not received will trump their MSJ. Focus on that package.

 

Take a serious look at all the documents from Jill Sheridan from Gwinnett County GA with a Google search. She has some of the best templates posted for her win against Midland Funding. Follow her examples and use her caselow as a guide.

 

HP

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@Huey Pilot   I am glad to see you're still flying here!

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Completely off topic, my Mom's side of the family is from Odum and we still have relatives there and in Screven. Not many folks know where those places are!

Good luck to you in fighting Midland.

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1.      The documents do not meet the Hearsay Exemption. In addition, as Plaintiff has not proven ownership of the account in question, Plaintiff has not laid a proper foundation for the admission of any of the evidence attached to its Motion for Summary Judgment. For the foregoing reasons, the Defendant Objects to the documents as inadmissible hearsay pursuant to O.C.G.A. § 24-8-802.

 

would this be the correct georgia code for what i am trying to say in reguards to the credit card statements, cardmember agreement and computer printout that was attached to the msj?

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I have to have this filed by today.

 

@Busymom...i grew up in screven so I know most everyone that lives there...i probably know your family...very small community of really good people

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In the State Court of Wayne County

State of Georgia

MIDLAND FUNDING LLC Successor In                                               )

Interest to Chase Bank USA, N.A.                                                      )

                Plaintiff                                                                                  )               Civil Action No. xxxxxxxxx

Vs.                                                                                                           )              

                Me                                                                                          )

                Defendant                                                                             )

Defendants Opposition to Motion for Summary Judgment

COMES NOW the Defendant, Me, and files this Response in Opposition to Plaintiffs Motion for Summary Judgment and Brief in Support thereof pursuant to O.C.G.A. § 9-11-56(e) and shows that the Court should deny Plaintiffs’ Motion for Summary Judgment.

RELEVANT FACTS

Plaintiffs filed suit against Defendant on a credit card account on September 27, 2013 alleging in the Complaint on Contract that Midland Funding LLC was a legal assignee of an account originally established with Chase Bank USA, and that Defendant had defaulted on a credit card agreement connected with the account. As an alleged assignee, Midland Funding LLC alleged that Defendant owed an outstanding balance to Midland Funding LLC of $2928.53 along with pre-judgment statutory interest from the date of default until the date judgment is entered. Midland Funding LLC claimed that “in the usual course of business, said account was ultimately assigned to Midland Funding LLC.” Plaintiff’s Complaint, which was served upon Defendant on September 27, 2013, contains no verifiable evidence of any assignment, and Plaintiff Midland Funding LLC has yet to provide evidence of any legal assignment. Defendant’s Answer to Plaintiffs’ Complaint on Contract was filed with the Court on November 4, 2012 and served upon Plaintiffs’ counsel by mail on November 6, 2013. Defendant served his First Request for Admission of Facts, First Interrogatories and First Request for Production of Documents upon the Defendant on January 18, 2014. Plaintiffs’ Responses to Defendant’s First Request for Admission of Facts were served on March 14, 2014.

 

 

SUMMARY JUDGMENT STANDARD

Georgia law has consistently held that summary judgment is an extreme sanction and should be granted in only the clearest and rarest of cases. Grier v. Kanon Service Corp., 217 Ga. App. 110, 456 S.E.2d 690 (1995). Indeed, to prevail at summary judgment under O.C.G.A. § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474, 475 (1991). While evidence of a movant for summary judgment is to be carefully scrutinized, a respondent’s evidence is to be treated with indulgence. Layfield v. Department of Transp., 280 Ga. 848, 632 S.E.2d 135 (2006). The defendant does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact. O’Connell v. Cora Bett Thomas Realty, 254 Ga. App. 311, 563 S.E.2d 167 (2002) citing Traicoff v. Withers, 247 Ga. App. 428, 544 S.E.2d 177 (2000).

 

 

 

 

Defendant’s Statement of Material Facts

Defendant submits this Statement of Material Facts in support of her Opposition to Plaintiff’s Motion for Summary Judgment. As this opposition pierces the pleadings and tests the sufficiency of Plaintiffs evidence, Plaintiff, who bears the burden of proof, must submit a record of admissible evidence to grant summary judgment.

 

Reply to Plaintiff’s Statement of Material Facts

1.      Defendant was issued a credit card account by Plaintiff’s predecessor in interest for the purpose of obtaining credit to purchase goods and services or cash advances.

Response: Plaintiff provides no admissible evidence to support that Defendant obtained a credit card account from Chase Bank USA

2.      Defendant did thereafter use or authorize the use of the credit card account to purchase goods and services and/or cash advances.

Response: There is no admissible evidence that Defendant made purchases associated with the alleged account, including the fees, charges, and interest from which to determine the amount purportedly due.

3.      Defendant was provided with monthly statements which described amounts due as a result of Defendant’s use of the credit card account and which requested payment in accordance with the terms of the cardholder agreement.

Response: Defendant has not received any monthly statements to the alleged account due to the fact that Defendant does not owe the alleged debt, and no evidence has been provided to prove otherwise.

4.      Defendant initially made monthly payments to Plaintiff’s predecessor in interest for amounts due on the card, as requested by the monthly statements.

Response: Defendant has not made payments to alleged account due to the fact that Defendant does not owe the alleged debt, and no evidence has been provided to prove otherwise.

5.      Defendant has subsequently failed to make timely payments on the credit card account and is currently in default, leaving an unpaid balance due and owing to Plaintiff in the amount of $2,928.53.

Response: Plaintiff provides no foundation or standing to charge that Defendant “failed” to make payments on an account that has not be proven to be hers.  No admissible evidence exists to support that Defendant owns the above debt.

Defendants Argument against Plaintiff’s Exhibit A – Bill of Sale and Closing Statement

 (Attached to this opposition as Exhibit “A”)

1.      Plaintiff has submitted into evidence a Bill of Sale to support its claim.

2.      The Bill of Sale does not reference the Defendant’s name or the alleged account number and, as such, could be referencing anyone’s account.

 

WIRTH v. CACH, LLC. 300 Ga. App. 488, 685 S.E.2d 433 (2009) "Moreover, there is no contract or Appendix A appended to the Bill of Sale which identifies Wirth's account number as one of the accounts Washington Mutual assigned to Cach."

 

3.      Plaintiff's Bill of Sale references a Final Data File with creation date of January 12, 2011, Chase Bank USA, N.A (“Seller”), FOR VALUE RECEIVED, and pursuant to the terms and conditions of the Credit Card Account Purchase Agreement dated November 30, 2010 between Chase Bank USA, N.A. ("Seller") and Midland Funding, LLC ("Purchaser"), its successors and assigns (“Credit Card Account Purchase Agreement”), hereby assigns effective as of the File Creation Date of January 12, 2011 all rights, title and interest of Seller in and (Account’s Primary File Name) attached hereto and made part hereof for all purposes. However, Plaintiff has failed to provide "the Final Data File". There is no evidence that the alleged account which is the subject of Plaintiff's Complaint was included in the referenced Final Data File.

4.      Plaintiff’s Bill of Sales states that “This Bill of Sale is without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an Exhibit. No other representation of or warranty of title or enforceability is express or implied.The condition of sale renders any and all information regarding the accounts included in the sale as unreliable and would require a witness from the original creditor, Chase Bank USA N.A., with personal knowledge of each and every account to authenticate the information.

Furthermore, the Credit Card Account Purchase Agreement is not included with the Bill of Sale and Plaintiff admitted in discovery that “Plaintiff has conducted a diligent search of its records and has not located a copy of any addition responsive documents at this time” in reference to this document.(attached as Exhibit A-1)

As such, Defendant respectfully asks that the Bill of Sale be stricken as evidence in the above action.

 

 

Defendant’s Argument against Plaintiff’s Exhibit A - Affidavit of Ashley Lashinski (attached to this opposition as Exhibit “B”)

1.      The affidavit of Ashley Lashinski pertains to acts and events that allegedly occurred between Defendant and a third party, which plaintiff has identified in their complaint as Chase Bank USA N.A. Plaintiff is clearly a third party and not the original creditor by their own admission.Ashley Lashinski is not currently and has never been employed by “Chase Bank USA, N. A.” and therefore cannot have personal knowledge of how Chase Bank USA, N.A. records were prepared and maintained, and;

2.      At no time was Ashley Lashinski, the creator of the Affidavit, or any of Plaintiff’s employees present to witness any alleged acts or creation of the records of transactions occurring between Defendant and Chase Bank USA N.A, and;

3.      The information contained in the Affidavit is merely an accumulation of hearsay, and; Ashley Lashinski cannot testify to the information contained in the records provided by Midland Funding as there is no evidence that those records were provided by Chase Bank USA, N.A, and;

4.      Defendant further states that the Affidavit is not subject to the Hearsay Business Records Exemption because it was not made at or near the time of the alleged acts or events, and;

5.      Therefore, Ashley Lashinski is unqualified to testify as to the truth of the information contained in Plaintiff’s Affidavit of Ashley Lashinski included in Exhibit A. OCGA 9-11-56 (e) mandates that "(s)upporting and opposing affidavits shall be made on personal knowledge. . ..

For such reasons, Defendant respectfully asks the Court that the Plaintiff’s Affidavit of Ashley Lashinski be stricken as evidence in the above action.

 

 

Defendants Argument against Plaintiff’s Exhibit A - Affidavit of Sale of Account by Original Creditor (Attached to this opposition as Exhibit “C”)

1.      No identifiable information contained in Exhibit A links Defendant to alleged account.

2.      At no time was the creator of the Affidavit, or any of Plaintiff’s employees present to witness any alleged acts or creation of the records of transactions occurring between Defendant and Midland Funding (MCM).

3.      Affidavit pertains to acts and events that allegedly occurred between Defendant and a third party, Chase Bank USA, N.A.

4.      In said affidavit, Christine L. Sallie, an officer of JP Morgan Chase Bank, N.A, testifies to a “sold pool of charged-off accounts” by a Purchase and Sale Agreement and a Bill of Sale to Midland Funding, LLC.

5.      Sallie speaks of no information identifiable that to the Defendant, or to the alleged credit account. No proof exists that alleged credit account was included in the “pool of charged-off accounts”.

6.      Sallie does not show documentary evidence of the alleged specific account in regard to the sale from Chase to Midland Funding. This key piece of information, which is critical to the Plaintiff’s standing in this case, is lacking and necessary for a summary judgment for the Plaintiff as a matter of law.

7.      The “Affidavit of Sale” does not prove standing in this case as it is not specific to the account in question.  An affidavit cannot create a business record where one does not exist. If the affiant’s claim that an account was sold under a specific bill of sale, the record of the sale specifically stating the account number must be attached OCGA 9-11-56 (e) "Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

8.      The Affidavit is merely an accumulation of hearsay and the affiant is not qualified to testify as to the truth of the information contained in the Christine L. Sallie Affidavit. Nyankojo v. North Star Capital Acquisition, 679 SE 2d 57 - Ga: Court of Appeals 2009 "We have held that testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay."

9.      As such, said Affidavit falls under the hearsay rule and is inadmissible as evidence.  OCGA 9-11-56 (e) mandates that "(s)upporting and opposing affidavits shall be made on personal knowledge. . . Defendant further stats that the Affidavit is not subject to the Hearsay Business Records Exemption because it was not made at or near the time of the alleged acts or events.

10.  Affiant is unqualified to testify as to the truth of the information contained in the Affidavit.

As such, Defendant respectfully asks the Court that the Sale of Account by Original Creditor be stricken as evidence in the above action.

 

 

Argument against Plaintiff’s Exhibit A - Credit Card Statements, Computer Printout, and Cardmember Agreement

 (Attached to this opposition as Exhibit “D”)

1.      Plaintiff has attached to its Motion for Summary Judgment: Credit Card Statements, a computer printout and a Cardmember Agreement, of which the Plaintiff claims allegedly represent an agreement between Chase Bank USA N.A. and Defendant.

2.      The credit card statements have not been authenticated by a custodian with personal knowledge who can testify that the alleged statements were made by Chase Bank in the regular course of business. In a recent ruling, the Georgia Court of Appeals held that summarized statements of accounts submitted to support the amount of indebtedness owed by the defendant were inadmissible under the business records exception to the hearsay rule. Capital City Developers, LLC v. Bank of N. Georgia, 316 Ga. App. 624, 730 S.E.2d 99, 101 (2012).

3.      The computer printout has not been authenticated by a custodian with personal knowledge who can testify that the alleged included information is true and correct or made by Chase Bank USA N.A. in the regular course of business.

4.      Plaintiff, Midland Funding, did not create or maintain the credit card statements, nor can Plaintiff prove the billing statements and computer printout are true and correct copies of any documents created by Chase Bank.

5.      The documents do not meet the Hearsay Exemption. In addition, as Plaintiff has not proven ownership of the account in question, Plaintiff has not laid a proper foundation for the admission of any of the evidence attached to its Motion for Summary Judgment. For the foregoing reasons, the Defendant Objects to the documents as inadmissible hearsay pursuant to O.C.G.A. § 24-8-802.

As such, Defendant respectfully asks that the Credit Card Statements, the photocopy of the Cardmember agreement, and the computer printout to be stricken as evidence in the above action.

 

 

ARGUMENT

STANDING

Plaintiff Midland Funding bears the burden of proof to establish that it is the Assignee of Chase Bank USA N.A. and therefore has a legal standing to sue Defendant over an alleged Credit Account balance.  There is no admissible evidence as to the purchase by Plaintiff of the alleged account which is the subject of this Complaint either directly from Chase Bank or through intermediate debt buyers.

According to Georgia law, "Every action shall be prosecuted in the name of the real party in interest." OCGA § 9-11-17 (a).

In Wirth v. Cach, LLC, the ruling of the lower court in favor of Cach was reversed by the Georgia Court of Appeals.  The reason for that reversal was due to the fact that Cach had not proven that it was entitled to file suit.  Among the deficiencies in Cach's claim of assignment was the debt buyer's Bill of Sale which referenced an "Appendix A".  The Bill of Sale provided: 

"Washington Mutual Bank, for value received and in accordance with the terms of the Purchase and Sale Agreement by and between Washington Mutual Bank and CACH, LLC ("Purchaser"), dated as of August 25, 2006 (the "Agreement"), does hereby sell, assign, and transfer to Purchaser, its successors and assigns, all right, title, and interest in and to the Accounts listed in the Account Schedule attached (as may be amended in accordance with the Agreement) at Appendix A to the Agreement[.]"

The court noted that "Moreover, there is no contract or Appendix A appended to the Bill of Sale which identifies Wirth's account number as one of the accounts Washington Mutual assigned to Cach."  Wirth v. Cach, LLC, 300 Ga.App. 488, 489, 685 S.E.2d 433 (2009).

The Court of Appeals made the same observation in Hutto v. CACV of Colorado and reversed the lower court's granting of summary judgment to CACV.  The Bill of Sale in that case provided

"FOR VALUE RECEIVED, and pursuant to the terms and conditions of the Credit Card Account Purchase Agreement between Chase Manhattan Bank USA, National Association ("Seller") and CACV of Colorado, LLC ("Purchaser"), dated as of July 30, 2003, Seller does hereby sell, assign[,] and convey to Purchaser, its successors[,] and assigns, all right, title[,] and interest of Seller in and to those certain accounts described in Exhibit "A" attached hereto and made a part hereof for all purposes." 

Furthermore, the Bill of Sale stated that it was assignment of "certain accounts" listed in "Exhibit A"; there is no document attached thereto labeled "Exhibit A," and the document immediately following the Bill of Sale in the record appears to be a statement to Hutto, not a list of accounts.  Hutto v. CACV of Colo., 308 Ga.App. 469, 707 S.E.2d 872, 875 (2011).

 

PROOF OF ACTUAL AMOUNT ALLEGED TO BE DUE

In Worldwide Asset Purchasing L.L.C. v. Sandoval, 2008-Ohio-6343: In order to establish a prima facie case for money owed on an account, “[a]n account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2)listed items, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due.”Gabriele v. Reagan (1988), 57 Ohion App.3d 84, 87.

            Plaintiff Midland Funding has presented alleged monthly statements, however said statements do not contain all of the information needed to establish a prima facie case. An employee of the Plaintiff, or even a legal specialist with access to Plaintiff’s pertinent account records, is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of billing statements that were allegedly created before the Plaintiff’s alleged ownership of the alleged account.

 

 

PROOF OF CONTRACT AND TERMS

            Regarding the contract, there must be written terms. The Truth in Lending Act at 15 U.S.C. § 1637 (a) requires the essential terms of a credit card account be disclosed in writing. In addition, creditors are required to post on the internet “the written agreement between the creditor and the consumer for each credit card account under an open-ended consumer credit plan.” 15 U.S.C. § 1632 (d)(1).

                Even in the absence of federal law, Plaintiff cannot prove the basis for any finance or interest charges, late fees and other charges, payment due dates, or even whether Defendant breached an obligation, without a contract. Consequently, someone with the requisite personal knowledge must be able to identify the controlling contract, and in the absence of the Defendants’ signature, demonstrate what conduct, if any, demonstrated mutual assent to the purported terms.

 

 

 

CONCLUSION

 Plaintiff’s failure to come forward with sufficient evidence as to each element of its prima facie case compels the denial of summary judgment for the Plaintiff.  Plaintiff has no evidence to support that it is the owner of alleged debt. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

 

PRAYER

For the foregoing reasons, Defendant, respectfully requests that the Court deny Plaintiff’s Motion for Summary Judgment; and dismiss Plaintiff’s case.

 

Dated this 2 day of July 2014

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I filed opposition to MSJ on Thursday. Judge has not ruled on that MSJ yet. Have bench trial at 2:00 today. Should I file MTS Affidavits, BOS, and CC Statements before trial or at trial. Also do I need an affidavit to file with them?

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I don't know if it was denied because they didn't show up or because of the opposition I filed.

 

 

@BV80 Another bench trial in Sept..The judge said they would have to prove their case at trial.  If they don't show up at that one I can file a motion to dismiss due to lack of prosecution. I also filed Motions to strike all their bs "evidence" today before court. I don't know when the judge will rule on those.

 

Very frustrating as I thought this would be over today.

 

I don't know when the judge will rule on those. Got 2 months to get ready to defend myself against these crooks.

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Since they didn't show up and their MSJ was denied, I think you have the wind at your back.  You're doing fine, and you time to prepare for trial, even though they may well dismiss w/o predjudice right before trial date.

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WLS,

 

Good Job!  You showed up which places you ahead of better than Ninety Percent of the Defendants. You slammed the door on a quick Default Judgment and sent a clear message to the Plaintiff that you are going to fight and the battle will cost Midland a ton of money in attorney fees. There is now no easy win for either of you. 

 

You can't expect the Judge to dismiss the case at this point for any reason. The Plaintiffs MSJ was just testing the water to see how hot it was and maybe get a lucky quick default judgement and/or to scare you into not appearing. Your now back in the hunt and the real case begins. 

 

A couple of things: 

 

  • You are now in the drivers seat. Yes it was denied because of Plaintiff's no show. You filed your MSJ Reply. No point!!
  • Your Header (Midland vs MLS) - I wouldn't use that successor to Chase Bank.  It might be considered an agreement on your part to the chain of title and admitting standing?  That's thin but these JDB attorneys are nit picky and you need to make them work for everything. "The devil's in the details".Provide them nothing ~ admit nothing.
  • I would send the Plaintiff's attorney a letter on your letterhead stating that you will accept and agree to a motion for dismissal with prejudice at this time and that you are prepared to move ahead with all the pre-trial motions and actions necessary to reach the same conclusion. Continuance of action at this time will cost the Plaintiff anywhere from $10,000 to $50,000.00 to maintain the suit. This expense might be favorable to the JDB's attorney for fee's charged but economically not feasible for his client (Midland) who more than likely paid less than 35.00 for this alleged account that has no standing.  
  • Caselaw. Try to use only Georgia Caselaw as more than likely the Judge will ignore anything else. I again stress looking up Jill Sheridans Midland funding battle and win there in Georgia!!!! She has great caselaw and some superb examples of filings  you can use in your case. 
  • WATCH ALL COURT DATES AND FILING DEADLINES LIKE A HAWK. DON'T MISS ANYTHING OR BE LATE. 

HP

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Thanks Huey your help is greatly appreciated. I live in the slowest to adapt to technology community I could ever imagine and have to call the court weekly to see if I have court dates or filing deadlines approaching.  Sometimes even the people who work there don't really know what is going on. Would it matter if it was dismissed with or without prejudice if the SOL expires in October?

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Just an update on my case. Was supposed to have trial today, except I didn't. Judge asked the lawyer did he have any new evidence which he didn't of course just said he had the same old stuff. Funny thing is the judge said as far as she could see that they didn't have sufficient evidence to sue me. UGH so frustrating!!!! Rescheduled in Jan 2015. Lawyer refused to dismiss so I told him I would let the Judge decide. He wanted to talk further and I told him I would not be bullied by him and that I would see him at the bench trial in January.

Can I file a motion to dismiss due to lack of evidence?

Should I file counter claim?

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their lack of attention shows you they dont have or not willing to get what they need. I would see how attentive they are by sending them some damming admits. If they don't answer, get them admitted, then file your own msj.

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their lack of attention shows you they dont have or not willing to get what they need. I would see how attentive they are by sending them some damming admits. If they don't answer, get them admitted, then file your own msj.

 

Can I send a second set of admits, if I have already sent one set of interogs, admits, and request for documents?

They didnt answer all of them previously, because there were to many.

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On 7/3/2014 at 12:35 AM, Busymom said:

Completely off topic, my Mom's side of the family is from Odum and we still have relatives there and in Screven. Not many folks know where those places are!

Good luck to you in fighting Midland.

Ha I am from Brunswick and my family is from Madray Springs..

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