Sign in to follow this  
dosoco

Sued by Midland in Clarke County, Georgia Superior Court - Few days left to file answer

Recommended Posts

Hi everyone, 

 

I'm attempting to help my best friend with his JDB lawsuit, specifically with drafting an answer to the plaintiff's complaint in the event he can't find an attorney to help him. We would really appreciate any advice you can offer.

 

1. Who is the named plaintiff in the suit? Midland Funding LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Greene & Cooper, LLP 

3. How much are you being sued for? $2,200

4. Who is the original creditor? (if not the Plaintiff) Bank of America

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

 

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

 

 

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None; received a letter once from Greene & Cooper attempting to collect debt

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

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Sometime in 2009, maybe early 2010 

11. What is the SOL on the debt? Six Years 

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

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

 

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. No

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?

 

1) By 2/21, this upcoming Friday

2) Complaint on a Contract

 

​Comes the plaintiff, by counsel, and for its cause of action against states as follows:

 

​1. The defendant is a resident of Clarke County, Georgia, and is therefore subject to the jurisdiction of this Honorable Court. 

​2. Midland Funding LLC purchased this account. The original credit grantor is FIA Card Services, N.A. The original account number is *********************.

3. The Defendant is indebted to the Plaintiff in the principal amount of $2,200.

WHEREFORE, Plaintiff respectfully defends Judgment as follows:

1. For the sum of $2,200 as principal;

2. Costs expended herein; and

3. Any and all other relief to the which the Plaintiff may appear entitled. 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

Three pages of a four-page statement dated December-January, 2011, detailing name, account number, interest charged, and balance total that matches the amount listed in the complaint. 

 

I also had a couple of questions I was hoping someone could help with.

 

Greene & Cooper filed with the Superior Court of Clarke County. Are the rules for filing an answer in Superior Court different from Magistrate Court? How does this affect, or does it affect, what should be included in the answer, chances of winning, etc? Is the sample letter found at http://www.creditinfocenter.com/legal/ive-been-sued.shtmla suitable template? I've found really informative forum posts on filing an answer in a Georgia magistrate court but not many on superior courts.  

 

He'll be filing the answer in person at the courthouse and mailing it to the plaintiff. Does the plaintiff need to receive it within the 30 day time frame or can it just be postmarked by the due date?  

 

If he writes up and files the answer himself, will he he have a hard time finding a lawyer to take on his case? Are there any free or sliding scale legal resources in Georgia for unemployed individuals that can help with consumer debt cases? 

 

Addressing each allegation seems simple enough thanks to this forum, but I'm not sure how to determine which affirmative defenses, if any, are suitable for his case. Should he even include affirmative defenses in his answer letter? 

 

Thanks in advance for all your help! The forum and its posters have been invaluable resources. 

Share this post


Link to post
Share on other sites

In my answer I would deny each of their allegations (except for correct name and address).

 

Then I would list affirmative defenses of:

 

1. Improper jurisdiction - citing the arbitration clause in 2009 or earlier BoA credit agreement (get a copy of the agreement for court)

2. Standing - Plaintiff is not the real party in interest on this account.  They must prove they actually own the debt and have legal right to sue on it.

 

Then, with my answer I would also file a Motion to Compel Private Arbitration.   This motion is to ask the court to dismiss, or in the alternative stay the case pending the outcome of private arbitration.  I would cite the Supreme Court case Conception v ATT Mobile which states that when an arbitraiton provision exsist in a contract, then arbitration should be preferred over court when either party enforces that provision.

 

Arbitriatoin will cost midland $2500 - $5000 just to get started.  Completing arbitration will cost them up to $20k - $50k and they must pay it.  The consumer arbitration fee is capped at a max of $250 (but it could be less depending on what the credit agreement says about consumer arb fees).  Midland will not pay this to chase down an alleged debt for a fraction of that amount.  So, if you get the court to order arb, Midland will have no choice but to pay (they won't) or to dismiss.

Share this post


Link to post
Share on other sites

@fisthardcheese

 

By claiming that Midland doesn't own the account, that means they're not a party to the agreement.  If they're not a party to the agreement, how can one compel arbitration?  Only parties to an agreement can arbitrate.

Share this post


Link to post
Share on other sites

Midland has asserted that they are the party to the contract.  The contract they are suing on states that any dispute may be resolved in arbitration. Therefore, arbitration may be used to resolve the very fact that they are even a party to the contract.

 

I know you don't agree with this, @BV80 but in GA - especially given the county OP is in - I would very strongly advise doing what is nessecary to get this out of the rubber-stamp court system.

Share this post


Link to post
Share on other sites

@fisthardcheese

 

I'm not saying that the OP shouldn't request arbitration.  My contention is that claiming lack of standing while requesting arbitration doesn't make sense because it's contradictory.  There are instances in which nonsignatories can be forced to arbitrate, but in this instance, one is claiming that the JDB is not only a nonsignatory but it has no connection to the contract because it doesn't own the account. 

 

Notwithstanding this strong federal policy, "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986).

The FAA creates a separate federal cause of action for enforcement of agreements within its scope, even if the underlying dispute depends entirely on state law. It does not, however, mandate arbitration for all disputes simply when arbitration is demanded. Rather, it provides for the enforcement of agreements in which the parties have agreed to arbitration. Whiteside v. Teltech Corp., 940 F.2d 99, 101 (4th Cir.1991).

 

The only way a party can agree to arbitration is if it's a party to the agreement (except in those few circumstances for nonsignatories).   Claiming lack of standing while raising arbitration is like saying, "The JDB is not a party to the contract but it is a party to the contract."

Share this post


Link to post
Share on other sites

@BV80

What if an OC brings a lawsuit against you for a debt you know you never incurred, and you can prove that fact beyond any doubt. The OC produces an agreement with their summons and complaint and you decide in accordance with the agreement you see before you that you want to make your case to an arbitrator instead of a court of law. You initiate arbitration and at the hearing you plonk down your irrefutable proof you never opened our used the account. Do you think the arbitrator will say "sorry, you consented to arbitration and thereby admitted you were a party to the agreement, and the only way that can happen is if you opened the account. You owe the debt and I don't care what proof you have to the contrary."?

I understand the concept you're presenting here, but I think there are cases where initiating arbitration is not a concession that the other side is unequivocally a party to the contract but just a party to a legal action. Both sides are still agreeing to submit to arbitration of their own free will (in contrast to the cases you cited) - they're just not agreeing on the assertion that a debt is in fact owed to one of those parties.

Share this post


Link to post
Share on other sites

Sorry for joining the party late.   This looks pretty straightforward.  I don't see why arbitration would even be brought up.  I guess that is a strategy I have never seen before.  Anyway, I would attack it for what it is...  A JDB with no actual proof they have been assigned your specific debt from the original creditor.

 

I have no idea why they would file this in Superior Court.   There are three courts anyone can file in:  Superior, State, or Magistrate.  

 

The only thing different in Superior Court and State Court vs. Magistrate is that in Superior and State you and the plaintiff can do discovery.  Basically, it just means there is a lot more paperwork involved and the case will take longer to resolve.

 

But you still start off the same:  Submit your answer and your counterclaim.   See my other posts for a good counterclaim example.   When you do eventually get a trial date, make sure you show up and deny deny deny that debt.   If they try to submit any affidavit testimony, by law they have to give you notice in advance so you can ask to see it and challenge it.   The JDB has no actual evidence that this debt was assigned to them (as required by Georgia law) and therefore they have no standing to sue for it. 

Share this post


Link to post
Share on other sites

Doing some research of my own on Midland and have come across a couple for GA judgements even for CC debt that is listing the SOL at 6 years.

Is it me or am I missing something....  I thought the SOL for CC in GA was 4 years.    Help ?

 

SC

Share this post


Link to post
Share on other sites

Doing some research of my own on Midland and have come across a couple for GA judgements even for CC debt that is listing the SOL at 6 years.

Is it me or am I missing something....  I thought the SOL for CC in GA was 4 years.    Help ?

 

SC

 

The SOL for GA has always been 6 years for CC debt.  Not sure where you got 4 from.

Share this post


Link to post
Share on other sites

@clydesmom   I got the information from the Statue of Limitations link right here on the CIC website-  Please see attached.

 

SC

 

A LOT of what is on this site is plain wrong but they refuse to fix it.  An open account is typically one at a specific store that you can add to on a regular basis i.e. a furniture store.  

 

Credit card accounts are considered written agreements in all states.  Refer to this site for SOL questions.

 

http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html

Share this post


Link to post
Share on other sites

@sweetcheeks  In 2008 a Georgia court of appleals ruled in Hill v. American Express that a credit card was a written contract and fell under the 6 year SOL.  Prior to this, some courts ruled a credit card could be an open-ended account subject to 4 year SOL.

 

So it technically has always been 6 years .... some people got away with 4 years before 2008, but since 2008 it is a very definate 6 year SOL.

Share this post


Link to post
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.

Sign in to follow this