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Mother being sued by debt buyer in Georgia, answer due 3/4

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Hello, all. New member here, and hope to find help with a matter that has arisen for mother, who is retired and has only SSI income now.

 

She has been served with a suit from a debt buyer, and the response is due in a couple of days. I have found lots of helpful info here and appreciate that, but want to post before crafting her pro se answer in case I am missing big things, or there is a possibility for a motion to dismiss, etc...

 

Suit is in Magistrate Court of Coweta County, GA

 

Thanks,

 

WH in GA

 

1.    Who is the named plaintiff in the suit? LVNV FUNDING LLC as assignee and purchaser of Springleaf Financial Services Inc.

2. What is the name of the law firm handling the suit? Emmett L Goodman, Jr. Macon, GA

3. How much are you being sued for? 2971.95


4. Who is the original creditor? Springleaf Financial Services Inc.

5. How do you know you are being sued? Served by process server

6. How were you served? 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 my mother is aware of


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

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

11. What is the SOL on the debt?  6 years

12. What is the status of your case? Not answered summons as of yet, cannot find legal status in county magistrate’s web site

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? no

15. How long do you have to respond to the suit? 3/4/2015

 

We need to know what the "charges" are. Please post what they are claiming:

1.    Defendant is indebted to Plaintiff in the amount of 2876.95, as referenced by Exhibit “A”.

2.    Pursuant to O.C.G.A 7-4-2, Plaintiff claims 7% prejudgment interest from June 2013 forward.

3.    Said amount is just, true, due and unpaid, and Plaintiff has made demand on defendant for payment, but the defendant has failed and refused to pay same and is in default.

 

 Did you receive an interrogatory (questionnaire) regarding the lawsuit?  Not yet

16. What evidence did they send with the summons? An affidavit of indebtedness and ownership of account with no supporting contract.

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Thanks, I was aware of this but have read quite a few horror stories regarding who's responsibility it is to not allow the garnishment.

I would rather defeat this if possible once and for all than fight it between the court and bank after the fact.

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There is no formal answer required for GA Magistrate Court.  All she needs to do is fill out the form that states she denies their claims and will defend and file it with the court. 

 

Magistrate Court also does not allow interrogatories or discovery so she does not need to worry about that.  Go to www.naca.net and get her a consumer attorney.  GA does not allow for pre-judgment interest and if it is not provided for in the contract with the lender once the account was charged off the JDB cannot add it on.  

 

 

Thanks, I was aware of this but have read quite a few horror stories regarding who's responsibility it is to not allow the garnishment.

 

Thanks to a federal law enacted a few years ago her bank is legally responsible to ensure that the funds in her account are not from an exempt source like SSI BEFORE they freeze the account.  Up to a total of 2 months benefits are exempt from garnishment.  Anything more than that a creditor can garnish from a bank account.  

 

I would rather defeat this if possible once and for all than fight it between the court and bank after the fact.

 

YOU cannot represent her in Magistrate Court.  It is practicing law without a license and the Magistrate will NOT allow it.  Use naca.net to hire her a lawyer.  It is possible they can send a letter to this moronic attorney letting them know they are wasting their time and money as she is collection proof.

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Apparently this was double posted and I replied on the one with no other replies on it.

 

Anyway, to add to what I already said in the other post .... It is important to try to get a copy of the loan agreement from Springfield.  As Clydesmom says, if the agreement does not specify pre-judgement interest, then the JDB can not add this.  That would be enough to file a counter claim against them. 

 

All you need is any type of resistance.  If you counter claim for any violation of FDCPA, and don't fold when you show up and the attorney wants to try to get you settle in the hallway before going in front of the judge, just stick to your guns and offer them a mutual dismissal with prejudice.  9 times out of 10, they accept this.

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Thanks, i read the other response too, not sure how i got 2 threads:)

 

We do not have a copy of the contract, which is unsettling. I would assume either they don't have it or we won't get it until the court time. I did research earlier to see if this could be used to dismiss due to a procedural violation, but looks like our state is friendly to JDBs this way....

 

I do have a few written records of calls to her and a relative over the last year(since the time LVNV says they took ownership) where there were FDCPA violations - 2 criminal threats, 2 after 9 PM, all 3 misrepresentations of identity/intent, 2 made after a verbal request to not call(although there was no written cease and desist). I asked her to ask for information(which of course beyond the SPringleaf part wasn't provided) and record thee times and dates of phone calls in case we reached this point.

 

The good thing is the magistrate has an online "file an answer" so we can do that. I was reading NorminGA's threads too, and appreciate all the input here. 

 

WIll we have 30 days to amend, or do I need to file the counterclaim with the answer? i have time to get it all together if it's better to send everything at once?

 

Thank you

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You don't have to amend, you simply go to court and file the counter claim any time before the trial date that they will set after you file your answer.

 

Did these calls happen to go to a cell phone, or were they a land line phone?  Can you pull the phone logs (most phone bills will break down each call showing the date/time and length of call)?  If you can produce a phone bill showing that their phone number called after 9pm, then you have a very nice solid FDCPA claim.  The other calls may be violations, but the evidence might be tough if it comes to it.

 

Honestly, though, I will tell you that I have not yet seen a JDB attorney fight hard in GA Magistrate court.  You can include those claims and likely get a dismissal.  Magistrate court is not a court like you will read about on this site from other states.  In GA Magistrate, any flimsy affidavit that LVNV will produce - even when it is clearly hearsay and even if it never actually mentions the OC's records - will be accepted as fact in these courts.  It usually goes like this, "Did you have a loan with Springleaf?  Yes? Judgement for Plaintiff."  This is why you want to put any type of resitance you can into the proceedure.

 

On my trial date, the judge did a roll call so they can see how few people have turned up for their court date and which ones they can just sign off as a default judgement.   Then, one by one, the attorneys called the people out into a hall or a conference room to try to settle.  When it was my turn, the attorney asked if I ever opened the account, if I ever made a payment on X date, if I remember the account at all.  I just kept telling him I don't recal the particular account he was talking about. Then he asks, "So, what would you like to do here?".  I paused for a minute because I was not expeting this as it was my first time dealing with things like this, and before I could answer he says, "we can do a mutual dismissal if you would like".  I said, yes I will agree to that. Then he asks if I know the difference between with and without prejudice.  I said, I do, and I would want it to be with prejudice.  He agreed and then .... now this is the part you need to really know .... he pulls out an order already typed up that had our names, case number and that both parties agree to a mutual dismissal with prejudice.  Since then, of other people I have spoken with who deal with JDBs in Magistrate Court, they all say the dismissal order was typed up and ready to go. The attorney just had to pull it out of their brief case.  So know that when you show up and have a counter claim against them, they already have a dismissal typed up.  You just have to tell them that is what you are willing to accept and get them to pull it out of their briefcase.

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Magistrate court is not a court like you will read about on this site from other states.  In GA Magistrate, any flimsy affidavit that LVNV will produce - even when it is clearly hearsay and even if it never actually mentions the OC's records - will be accepted as fact in these courts.  It usually goes like this, "Did you have a loan with Springleaf?  Yes? Judgement for Plaintiff."  This is why you want to put any type of resitance you can into the proceedure.

 

In most counties it does go like that. I can state that in Cobb, Gwinnett, and sometimes Fulton it goes the other way.  Several of the Magistrates there are tired of these JDBs coming in with flimsy or no evidence and expecting a quick buck.  With Freddie Hanna being sued by the CFPB they are being more vigilant about what they are accepting as evidence if the defendant challenges it.  

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Thanks all for the very valuable assistance here!

 

Clydesmom - I have no intent to represent my mom, just to offer her assistance and guidance on answering the claim and when/where/how she needs to be:) Thank you also for the info on the laws requiring banks to validate garnishable income - I had no idea but have seen horror stories in my research about this sort of thing....

 

FHC - the calls were not recorded(other than time date) but 2 of them were actually to her cell phone, which I have access to.

 

I think it's worth filing the counter knowing the claims might be difficult to prove, but that we may never need to prove them. It seems our best chance(since all of this defies logic and common sense anyway) is to create the most resistance possible to discourage the opposition from pursuing this. it's only 3k, I mean really....

 

I've learned a lot in the last few weeks, this stuff amazes me, and the fact that it's this easy for jdb's to go after people and get judgements is unbelievable....

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Pull those cell phone bills showing the 2 calls to her cell phone.  Bring them to court in your folder full of evidence - just in case you need them.  And add to your counter claim, 2 counts of TCPA violations for calling a cell phone with an auto-dialer. I would claim that the calls were willfull and that the trebbled $1500 should be awarded per call.  That right there is a total of $3k on your counter claim for those 2 phone calls.  I would add the FDCPA violations you have, which in all would total another $1k.  I would then file my counter claim asking to be awarded $4,000 in statutory damages.  I would file this about 1-2 weeks prior to the hearing date to give time for a CMRRR copy to be mailed to the Goodman law firm and for the signed green card to come back as proof you served it on them. 

 

Don't forget to bring copies of your counter claim, all the evidence involved and the signed green card and certified mail reciept showing you served them both a copy of your answer and a copy of your counter claim.  Have all of this with you and ready in court - just in case.

 

When you file your answer and your counter claim, I like to have the court stamp 3 copies.  One goes intot he court's file, the other gets sent to the law firm, and the 3rd I keep for my copy as proof that I did file the document, should it ever be questioned.

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Check out this recent post by someone dealing with another JDB in GA Magistrate:

 

http://www.creditinfocenter.com/community/topic/325069-edit-had-court-again-update-2-17-15-its-over/?p=1316343

 

She got her mutual dismissal with prejudice by pure accident and luck.  She never filed a counter claim, but when she filed her answer she accidentally titled it "Answer and counter claim".  That was enough to get the JDB to want nothing to do with it any more.

 

Now, I'm not saying it is always this easy.  And you definately want to make sure you have all of your evidence and know what your arguments should be if you need to present it to the judge.  But ..... you never know.

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Definitely submit the counterclaim at the same time as your answer if you have time.  You can find an example of a nice big violations counterclaim document in my other posts.  Since you have specific examples of violations by the JDB it will be even better!!!    

 

On top of that, when you see the attorney with your mom on the court date, just deny the account, tell them they don't have any actual evidence, and say even if it was her account she is judgement proof.  By the way, JDB's in GA now have to give you notice in advance if they intend to introduce any affidavit testimony in lieu of actual witnesses.   If they don't give you advanced written notice then you need to mention that at court also. 

 

My dad is in the same situation as your mom.  His only income is Soc Sec and he has zero assets.  I know there is at least one default judgement against him from a few years ago but to my knowledge no one has ever attempted to garnish his bank account.

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Thanks NorminGA!

 

I actually tried using some of your verbiage in the web portal response, but the site had character count limits. I filed the denial of their 3 claims and used the headers for counter claims of FDCPA and FBPA in the web page.

 

I plan on filing and sending the long form versions via printed out.

 

I am still amazed by the way this process works, and that someone who is judgement proof like my mom or your dad still is responsible to fend off this crap that could be completely fictitious.... 

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