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In Georgia - Please help wondering next steps


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Hey, I'm new but let me say that this site is great. It really has given me hope. I've looked at a lot of the material and it has been very helpful although I wish I would have found the site a little earlier but I hope I'm still have a fighting chance. 

 

1. Who is the named plaintiff in the suit? Capital One Bank (USA), NA

2. What is the name of the law firm handling the suit? Fred Hanna

3. How much are you being sued for? $2,563.80

4. Who is the original creditor? Capital One Bank

5. How do you know you are being sued? Served at home

6. How were you served? In person

7. Was the service legal as required by your state? Not sure but think so.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? They sent a letter asking did I want to settle prior to court and if I did all I needed to do was call their office. I never called.

9. What state and county do you live in? Georgia, Fulton County

10. When is the last time you paid on this account? September 2011

11. What is the SOL on the debt? To find out: 4 Years

12. What is the status of your case? The case has been set for trial. 

 

13. Have you disputed the debt with the credit bureaus? No

14. Did you request debt validation before the suit was filed? No

15. How long do you have to respond to the suit? I've already responded but they didn't know I responded per the attorney (I went to court today). When I got there my name was never called so at the end they asked my case number. After giving my case number the attorney said he didn't have my file. The judge asked did I answer the summons and I told him I had a copy with me. He reviewed it and said the law firm filed a default motion hearing but there should have been trial since I responded. The new date is 8/18/2014.

 

16. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No, wondering if I can ask now since the date has been moved.

17. What evidence did they send with the summons? Statement from the OC and a print out similar to a AS400 screen (like internal system) which I guess is supposed to be from .the OC. That was it. I was really nervous because I felt I could have been a little more prepared but I didn't have much time. My defense was going to be they had no merit in filing the law suit because I called Cap One and asked if they were aware that I was being sued and they said no. I was told that they assigned it another collection agency not the law firm but didn't know about me being sued. They said they still held the account but didn't handle it so I'm assuming they assigned it to the debt collector which I assume is the law firm because they sent a form saying they were a debt collector and then filed suit. 

 

In addition, not sure if this will help but the reason I felt my defense my fly is because I gave Cap One the last 4 of my ss# and address so that they would provide me with the information. I was told  by the rep they only had part of my address and confirmed my phone number because they had an old one on file. At this point, I'm not sure if I'm in a good situation or bad one.

 

Thanks

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This is how I responded to the summons. Also I didn't mention but I was served March 2014.

 

Re: Case number #ABCDEFG123

Plaintiff

 

Vs.

Defendant

Defendant's Answer to Complaint as Follows:

 

As to paragraph (1) of the Complaint, The Defendant lacks information sufficient to agree, admit, or deny the allegations contained therein, and leaves to the Plaintiff to provide proof. Defendant demands strict proof thereof. 

 

As to paragraph (2) of the Complaint, The Defendant lacks information sufficient to agree, admit, or deny the allegations contained therein, and leaves to the Plaintiff to provide proof. Defendant demands strict proof thereof.  

 

As to paragraph (3) of the Complaint, The Defendant lacks information sufficient to agree, admit, or deny the allegations contained therein, and leaves to the Plaintiff to provide proof. Defendant demands strict proof thereof. 

 

As to paragraph (4) of the Complaint, The Defendant lacks information sufficient to agree, admit, or deny the allegations contained therein, and leaves to the Plaintiff to provide proof. Defendant demands strict proof thereof. 

 

FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted and leaves the Plaintiff to provide strict proof.

 

AND FOR AFFIRMATIVE DEFENSES

 

1. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal sum is correct and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove this is a valid account and the amount of the debt.

 

2. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action.

 

3. The court would unjustly enrich the plaintiff by granting the relief sought herein.

WHEREFORE, the defendant asks before this honorable court to dismiss the complaint, and grant dismal with prejudice.

 

Respectfully submitted,

 

_____________________________

Defendant

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I lived in GA up until 2 years ago.  Fred Hanna is a bottom feeder and tried to pull a fast one on the court.  No wonder he is being sued by the CFPB.

 

The problem you have is that this is not a JDB suit but an original creditor.  The CFPB is suing Hanna which you can read about here:  http://www.stltoday.com/business/local/u-s-consumer-bureau-sues-frederick-j-hanna-associates/article_943ad062-b8ad-5308-8f77-3ab837cdc700.html

 

 

9. What state and county do you live in? Georgia, Fulton County

10. When is the last time you paid on this account? September 2011

11. What is the SOL on the debt? To find out: 4 Years

 

The SOL on CC debt in GA is 6 years and they do not have a borrowing statute.  The Fulton County Magistrates are very fair.

 

Magistrate Court does not allow discovery or interrogatories.  You have to do everything at trial.

 

My tactic would be WHO from the OC is testifying to the accuracy of his records and what is his standing to sue?  Based on this: 

 

Hanna & Associates attorneys were told not to spend more than one minute reviewing most cases before they were filed, the bureau claims, and in Georgia, one Hanna & Associates attorney signed off on 138,000 lawsuits over two years, a pace that the bureau declared incompatible with legitimate legal work.

 

I would argue that NO attorney from their firm can testify to the legitimacy of Cap1's business records since on average they spend less than 60 second reviewing a file and are currently involved in litigation with the Federal government for their robo-filing of false information based on non-attorney review.  I would demand to know who at Hanna's firm reviewed the documents and to cross examine them.  I would also question who at Cap1 asked Hanna to file suit vs to simply collect on a debt since their first letter stated they were a DEBT COLLECTOR and not contacting them on a legal matter.  I would argue he attempted to commit a fraud upon the court by ignoring your answer and filing for a default judgment further proof of his illegal conduct and why the CFPB is suing him.  I would cite the actual case number of the Federal lawsuit against him for his multiple violations and tell the court that I am in the process of consulting a consumer attorney to file a counter claim for a violation of my consumer rights under the FCDPA by Hanna.  

 

Your answer is fine and actually sets you up for the defense I suggested.

 

My guess is that when they send you and his rent-a-lawyer out to the hallway for a settlement conference and you argue those points to them and mention the counter suit they will ask what you want and you say for a dismissal WITH prejudice you will drop all claims.  Then make them file it right then with the court.

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I lived in GA up until 2 years ago.  Fred Hanna is a bottom feeder and tried to pull a fast one on the court.  No wonder he is being sued by the CFPB.

 

The problem you have is that this is not a JDB suit but an original creditor.  The CFPB is suing Hanna which you can read about here:  http://www.stltoday.com/business/local/u-s-consumer-bureau-sues-frederick-j-hanna-associates/article_943ad062-b8ad-5308-8f77-3ab837cdc700.html

 

 

The SOL on CC debt in GA is 6 years and they do not have a borrowing statute.  The Fulton County Magistrates are very fair.

 

Magistrate Court does not allow discovery or interrogatories.  You have to do everything at trial.

 

My tactic would be WHO from the OC is testifying to the accuracy of his records and what is his standing to sue?  Based on this: 

 

Hanna & Associates attorneys were told not to spend more than one minute reviewing most cases before they were filed, the bureau claims, and in Georgia, one Hanna & Associates attorney signed off on 138,000 lawsuits over two years, a pace that the bureau declared incompatible with legitimate legal work.

 

Thanks for replying. That helps a whole lot. Now it makes sense why I couldn't find any info about discovery or interrogatories. I'll need to do some more preparing. I don't know if any of this matters but my last name is spelled incorrectly on the summons.  In addition, I asked cap one if the debt turned out to be mine, who would I have to pay. At the time, I was thinking what their involvement was with the case and if it was really them suing me or not. The response I got was I would not deal with them any more and I would make payments to whoever was collecting. Just seemed odd to me but I think I get what needs to be done. Thanks again.

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Your name being misspelled is a clerical error which the court would allow them to amend and correct.  It is a non-starter as defenses go.

 

There are a lot of people here who will help.

 

You can also contact www.skaarandfeagle.com or Steve Koval.  Both are consumer attorneys in Atlanta who sue Hanna for sport and profit.  They will do an initial consult for free and it can't hurt to discuss the case with them.

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  • 3 weeks later...

So, I was preparing for my court date tomorrow and just happened to go to mail to find I received a letter from the court. It looks like my court date has been moved again. I received a letter from the court stating that my case was put on the Peremptory calendar although the judge stated that I was suppose to come in to court on 8/18 and that I would not receive notice. From my understanding that this means that the case has been outstanding for long enough time to be prepared for. Not sure if I should still go tomorrow or not but the letter states that both parties should show up and if they don't then a ruling will be entered for them.

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I contacted the court this morning and they told me to disregard the letter I received for Peremptory Calendar on 8/29/14 and to come in today at 1pm. When I showed up there was a different attorney this time and she was a bit more aggressive than the first. WE discussed the case prior too going in to see the judge. She showed me 2 full statements, credit report, and a facsimile with Cap1's name on it. She acknowledged she hadn't had a chance to look at my answers to the summons because she had just found out that she would be in court. She asked what proof I had and I told her I had an affidavit stating that Cap1 had no knowledge of the suit. She got ticked, said she would get a 902 Affidavit and get summary judgment, and stormed back into the court room. When we went back in the court she brought up the case and I advised the judge that the attorney's had not provided sufficient evidence to prove the amounts of principal and interest were correct and that Cap1 assigned them the case to file suit. She asked the judge for continuance to get a 902 Affidavit in which I believe would be for validating records. I agreed because at the time I didn't know the affidavit would be hearsay so I had nothing to stand on as well (obviously I missed the mark on that law but it appears my bringing it up was enough for the attorney to request a continuance). She also attempted to ask the judge in the same breath if the 902 affidavit would be enough to prove attorney-client privileges because she didn't want to violate the law and prevent us from having to go to State Court. He said that he couldn't answer for her and she would need to present her evidence the way she presents her evidence, and he would make a decision. He also said he didn't think providing documentation for assignment would break any attorney-client privilege laws. She asked to give me a copy of what she had and due to my nervousness at that time I didn't think to not accept the documents (2 full statements and Capital One Facsimile) or object at that time. Also, the judge stated that I would need to subpoena the person that gave me the information on Cap1 unawareness in addition to my ability to request documentation if I did it the right way. We rescheduled for 9/22/14.

 

I spoke with the after after she finished her last case and she still seemed a little ticked off and said that if I was to get an attorney, just tell them to email her - that is, if she knows them they will know to send her an email and if they didn't know her than to give her name to them so that they could settle. At this point, I am no longer nervous but want to be smart and evaluate my chances going forward. I know they have violated the law but need to do more research if I can prove it. I figured I have two options:

 

(1) hire a local attorney - not sure about this option now that she has made the above remark

(2) go to court (preferred) - I think my best bet is to be thorough in building a case around the standing for suit and correct amounts, try to object the 902 affidavit, and  focus on their right to file suit in cap1 name.

 

I'm not expecting legal advice here but if any one has comments please feel free to make them.

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Here is your major problem:  if Cap1 IS the plaintiff then they do have standing to sue.  The attorney is merely representing them and does not have to have standing to do so..  The affidavit regarding their business records will be allowed in as it will not be hearsay Cap1 can attest to their own records.  

 

Her snotty comment and attitude aside she is required to tell you to have your lawyer communicate with her.

 

I would start calling consumer attorneys ASAP and see about representation.  An original creditor suit can be won but it is a LOT harder to do.

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One thing though, I'm just curious and it is the major reason why I looked into their ability to file suit...if Cap1 said that they assigned it to the National Attorney Network than how could they be filing suit in cap1's name unless it was assigned to them from the Network  and then the Network would assigned it to the law firm. I'm not sure if you know but I was just curious?

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One thing though, I'm just curious and it is the major reason why I looked into their ability to file suit...if Cap1 said that they assigned it to the National Attorney Network than how could they be filing suit in cap1's name unless it was assigned to them from the Network  and then the Network would assigned it to the law firm. I'm not sure if you know but I was just curious?

 

Because the NAN is nothing more than a referral source for creditors seeking legal representation.  They do not buy debts to collect on.  It is no different than the lawyer referral service run by the state bar associations or other sites.  When Cap1 called NAN they asked for a referral to a local attorney to handle collection lawsuits for them.  They give the geographical area, NAN provides a referral to one or more lawyers, and then Cap1 hires them.

 

If Cap1 still owns the debt and simply hired a law firm to represent them then you have an uphill battle defending it because as the original creditor Cap1 has the legal right to hire a law firm with or without a referral network to sue over bad debts.

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