HockeyFan

About to be sued by Portfolio Recovery - Fulton County, Ga

Recommended Posts

@HockeyFan

http://magistrate.cobbcountyga.gov/v6/smallclaims.htm

Can I bring letters or affidavits from witnesses to the court?

No. Live witnesses who have direct knowledge of the facts to which they testify must present all testimony. If the witness is not physically present in court, under oath, and subject to cross examination, their statements may not be presented to the Court. To do otherwise would violate the Georgia law against "hearsay" evidence.

 

There's also this you could use-

O.C.G.A. § 9-11-43

(a)  Evidence on trials. In all trials the testimony of witnesses shall be taken orally in open court unless otherwise provided by this chapter or by statute.

 That first statement is for Cobb County, this is in Fulton County. Would there be a difference?  If not, should this be in counterclaims?

Share this post


Link to post
Share on other sites

@HockeyFan I couldn't find the detail for Fulton County but I'd think this should be the same statewide. I don't know if you need to ask leave of court for Georgia Small Claims/Magistrate discovery but where the live witness would come in is you ask the Plaintiff if they intend to produce any more documents for trial or produce any witnesses at trial. If no witnesses, seems like dismissal time, since you can't put the swiss cheese affidavit and slop records attached to it on the stand.

 

For counterclaims, might have to ask Norm about that.

Share this post


Link to post
Share on other sites

@HockeyFan I couldn't find the detail for Fulton County but I'd think this should be the same statewide. I don't know if you need to ask leave of court for Georgia Small Claims/Magistrate discovery but where the live witness would come in is you ask the Plaintiff if they intend to produce any more documents for trial or produce any witnesses at trial. If no witnesses, seems like dismissal time, since you can't put the swiss cheese affidavit and slop records attached to it on the stand.

 

For counterclaims, might have to ask Norm about that.

 

After reading a bit it looks like it is statewide but not widely "advertised" as so.  

 

So basically,

  • I should file my answer with whatever counterclaims (if any - Norm help! When you get the chance of course.).
  • Get assigned court date.
  • Go to court.
  • Go to hallway with atty and tell her that her affidavit and "evidence" is all hearsay and not admissible since the witness is not present to testify.
  • After that I am guessing is when the atty intimidation happens. 
  • DENY DENY DENY DENY

 

Am I getting this right? I want to make sure I have everything when going. I would rather not be caught off guard by anything and sit there with a blank stare.

Share this post


Link to post
Share on other sites

@HockeyFan I'm looking at your attached docs posted #16. Look on General Instructions page-

See the line where it says Witnesses (should accompany you. Notarized statements CANNOT be accepted as evidence at trial).

you can also laugh at the documents themselves.

 

Tamara Bond is kind of lazy in a robo signer way, isn't she? She can't even print her name on those affidavits, instead using a stamp to fill in the blanks. LOL

Hand cramps when forced to do one of these every four seconds?

Share this post


Link to post
Share on other sites

@HockeyFan I'm looking at your attached docs posted #16. Look on General Instructions page-

See the line where it says Witnesses (should accompany you. Notarized statements CANNOT be accepted as evidence at trial).

you can also laugh at the documents themselves.

 

Tamara Bond is kind of lazy in a robo signer way, isn't she? She can't even print her name on those affidavits, instead using a stamp to fill in the blanks. LOL

Hand cramps when forced to do one of these every four seconds?

 

That's funny. I was thinking the same thing. Norm brought up a good point that that line you had in bold could just be for the defendant and not both, but I do not think that is the case. Also, what about the new rules of evidence GA adopted back in '13?  Will that cause a bump in the road?

Share this post


Link to post
Share on other sites

It's for both parties- note the following may help you prepare your claim or defense.

When I was going through this stuff earlier, I was looking at the post change evidence rules, so myself and others were able to tear their stuff apart with those. That was before we even ran across the live witness requirement.

 

One thing is if they try to pull a summary judgment to win without going to trial. They wouldn't need a live witness and would instead try to rely on their documents/affidavits but they wouldn't be able to get SJ with all the doubt you'd cast on the documents.

Share this post


Link to post
Share on other sites

@HockeyFan,

 

As I recall, NorminGeorgia didn't go to court with a formally crafted FDCPA complaint.  I think he just scribbled something on paper about a FDCPA counterclaim, which FirstHardCheese also said he did.  Basically, both of them just sort of waved their paper and threatened to file a counterclaim and that was enough to get the JDB to fold,

 

If you want to go that route, I suppose you could scribble something down about a violation of one or all of these sections:

 

 

Share this post


Link to post
Share on other sites

The whole point of asking the question about the affidavit testimony to the magistrate court clerk in the way that I phrased it is because they will absolutely not answer any question you have about your case or give you any legal advise.  But if you ask a general question about their specific form for their specific county they should be able to answer your question.  The reason for the question is specifically because of the 2013 changes in the hearsay rules.  Yes, Georgia was late in adopting the rules that are used by most states.  But those changes made it easier to use crappy affidavits in court.  However, magistrate court has always been different in that they never allowed affidavit testimony.  The "witness" had to be there in court in person.  

 

I asked this question directly to a judge in a written motion one time but never got a response from the judge so I thought you might have a better shot at getting a straight answer if you asked it at the court clerk's window.   Is the "no affidavit" rule still in effect for Magistrate courts even though the general law of Georgia says that affidavits are completely fine as testimony as long as the plaintiff gives you WRITTEN notice in advance that they are going to use an affidavit in lieu of personal testimony.

 

As for the counterclaim document, I posted an example.  I will find it and send the link to you.

 

I agree that if you laugh in the attorney's face about her "evidence" and tell her you are not going to put up with any more harassment, and deny deny deny, you will get what you want.  Dismissal with prejudice.

  • Like 2

Share this post


Link to post
Share on other sites

Here you go.

 

http://www.creditinfocenter.com/community/topic/324372-how-i-lost-against-midland-funding-in-georgia-and-then-won/

 

The example counterclaim is posted there.  I originally found it on these boards and it said that some law firm in Georgia had used something like it often.

 

 

As for motions for summary judgement (MSJ) brought by JDBs, I have not personally experienced that but from what I have read on the forums and in recent GA court of appeals decisions, they can be fought pretty easily.   Maybe it never came up in my cases because I answered the complaints quickly and filed counterclaims.  But I don't know that for a fact.  Maybe the lawyers were just too lazy to do an MSJ or they knew they were going to get their butts spanked anyway.

 

Basically, in your case, the evidence they have is useless and the attorney should back down pretty quickly when you make it clear you know her paperwork is garbage.  She will never admit it but if she agrees to dismissal with prejudice, you know you have won.   

 

Best of luck.  Remember, I have no idea what I am talking about and I am not an attorney.  Do what's right for you.  Buy honey only from a local beekeeper.

  • Like 1

Share this post


Link to post
Share on other sites

When you go to your magistrate court date you will see how the game works.

 

There are usually 3 to 6 JDB lawyers there from various firms.  They take turns going through their stack of folders calling names.  If the person is not there that is a "cha-ching!" instant default judgement for them.

 

For the few defendants that show up, you will see them talking to the attorney and most will get talked into admitting a debt and a payment plan before court even starts.   But then there is you, the one of a few people that actually knows what the game is about and knows to push back and stand up to them with the law on your side.

 

It's a numbers game.  JDB wins 95% of the time just because people do not show up for court.

  • Like 1

Share this post


Link to post
Share on other sites

Here are some more examples you might want to look at.

 

 

 

 

 

 

 

IN THE MAGISTRATE COURT FOR THE COUNTY OF GWINNETT

STATE OF GEORGIA

 

 

MIDLAND FUNDING LLC

ASSIGNEE OF

CHASE BANK(USA), N.A.

 

Plaintiff

 

v.

 

______________

______________

______________

 

Defendant

 

)

)

)

)     CIVIL ACTION FILE NO:

)

)     _____________

)

)

)

)

)

 

 

ANSWER TO COMPLAINT ON CREDIT CARD ACCOUNT

 

I deny the claims of Plaintiff as follows:

 

With the exception of Claim #1 (which is my residence address), I DENY all other claims #2 - #9 as follows:

 

I have no such alleged credit card debt or alleged credit card account with Asset Acceptance or FIA Card Services.   Plaintiff has no legal standing to make such claims since they have provided no verification that they are the rightful owner or rightful assignee of any specific alleged credit card debt between myself and FIA Card Services.

 

In addition, as affirmative defense:

 

  1. Plaintiff fails to state a claim against Defendant upon which relief can be granted.
  2. Plaintiff is not the legal holder of the alleged debt and therefore is not the real party in interest and has no standing to make the complaint.
  3. Plaintiff has falsely represented the character, amount, and legal status of the alleged debt.

 

 

Therefore, I request the Court to immediately DISMISS the Plaintiff’s claims WITH PREJUDICE.

 

 

________________   being first duly sworn on oath says the facts set forth in the foregoing Answer are true and correct.

 

Sworn to and subscribed before me this ________ day of

________________.                                                                                  

                                                                                                            ___________________________________

                                                                                                            Defendant      

 

 

          _________________________________________

          Notary Public

 

 

 

 

 

IN THE MAGISTRATE COURT FOR THE COUNTY OF GWINNETT

STATE OF GEORGIA

 

 

MIDLAND FUNDING LLC

ASSIGNEE OF

CHASE BANK(USA), N.A.

 

Plaintiff

 

v.

 

_________________

_________________

_________________

 

Defendant

 

)

)

)

)     CIVIL ACTION FILE NO:

)

)     _________________

 

)

)

)

)

)

 

 

CERTIFICATE (PROOF) OF SERVICE TO OPPOSING PARTY

 

 

I hereby certify that I have mailed a copy of the following listed documents that I have filed with the clerk of court,

 

  • Defendant’s answer to claims.
  • Defendant’s counterclaims.

 

 

To: Plaintiff/Attorney   

FRED HANNA & ASSOC.

Address

1427 ROSWELL RD

City, State & Zip

MARIETTA, GA 30062

 

USPS Priority Mail with signature required.

Tracking no.  __________________

 

This _____ day of ________________.

 

                                                            _________________________________________

                                                            Defendant

 

                                                            Address:

                                                            Phone: 

  • Like 1

Share this post


Link to post
Share on other sites

@NormInGeorgia

 

I see you in fact, DID come to court with a well-crafted formal FDCPA complaint!  I guess I was confusing your experience with what FirstHardCheese had posted.  You have had some 50 downloads of that doc!  

Share this post


Link to post
Share on other sites

What I was referring to was this post by someone else:  http://www.creditinfocenter.com/community/topic/325069-edit-had-court-again-update-2-17-15-its-over/?p=1316343

 

Where a counter claim was never even filed, but she put "answer and counter claim" on her answer heading and it was enough to make the JDB run away from it.

 

In my own particular Magistrate cases, I always had an actual counter claim filed that I typed up in a formal manor conforming to federal court standards.  Even if my FDCPA counter claims were flimsy, I just made it look like I meant business.  :)

Share this post


Link to post
Share on other sites

What I was referring to was this post by someone else:  http://www.creditinfocenter.com/community/topic/325069-edit-had-court-again-update-2-17-15-its-over/?p=1316343

 

Where a counter claim was never even filed, but she put "answer and counter claim" on her answer heading and it was enough to make the JDB run away from it.

 

In my own particular Magistrate cases, I always had an actual counter claim filed that I typed up in a formal manor conforming to federal court standards.  Even if my FDCPA counter claims were flimsy, I just made it look like I meant business.  :-)

I see.    In any case, it  seems that in GA Magistrate Court, FDCPA  counterclaims (or just the threat of them) scare the hell out of JDBs

Share this post


Link to post
Share on other sites

@NormInGeorgia I used the counterclaims that were in your form and made some adjustments to fit my particular case. I have attached it to get some criticism on it.  If it looks good to you guys I will head on down to the courthouse Tuesday and file it. 

 

What I was referring to was this post by someone else:  http://www.creditinfocenter.com/community/topic/325069-edit-had-court-again-update-2-17-15-its-over/?p=1316343

 

Where a counter claim was never even filed, but she put "answer and counter claim" on her answer heading and it was enough to make the JDB run away from it.

 

In my own particular Magistrate cases, I always had an actual counter claim filed that I typed up in a formal manor conforming to federal court standards.  Even if my FDCPA counter claims were flimsy, I just made it look like I meant business.  :-)

 

I gotta say, I read through that entire thread and was dying inside over the grammatical and spelling errors....but good info from what I was able to translate, thank you!

ANSWER2_Redacted.pdf

Share this post


Link to post
Share on other sites

@HockeyFan

http://magistrate.cobbcountyga.gov/v6/smallclaims.htm

Can I bring letters or affidavits from witnesses to the court?

No. Live witnesses who have direct knowledge of the facts to which they testify must present all testimony. If the witness is not physically present in court, under oath, and subject to cross examination, their statements may not be presented to the Court. To do otherwise would violate the Georgia law against "hearsay" evidence.

 

There's also this you could use-

O.C.G.A. § 9-11-43

(a)  Evidence on trials. In all trials the testimony of witnesses shall be taken orally in open court unless otherwise provided by this chapter or by statute.

 

@HockeyFan @CCRP626

 

This is not actually true.

 

O.C.G.A. § 9-11-43  is from the Georgia Civil Practice Act.

 

The Georgia Uniform Magistrate Court Rules states in Rule 38: "Parties and attorneys are reminded that the Georgia Civil Practice Act does not govern proceedings in Magistrate Court."

 

Essentially, Magistrate judges are free to accept or decline any type of evidence for any reason.  Their only requirement is to act "in the best interest of justice".

 

Affidavits are routinely accepted as testemony on behalf of creditors suing in Magistrate.

 

Here are the Magistrate Uniform Rules.  http://www.georgiacourts.gov/files/UNIFORM%20MAGISTRATE%20COURT%20RULES%20-%2001_25_13_.pdf

 

Those are the ONLY rules that matter in GA Magistrate Court.

Share this post


Link to post
Share on other sites

@fisthardcheese at least they have Rule 41- no summary judgments allowed. It's kind of weird the Magistrate court form posted earlier and their links have the affidavit warning. Maybe it's a "unless defendant protests, defendant has no objection" situation?

 

I do see Rule 38 considers all requests for relief in Magistrate Court to allow Civil Practice Act to be followed under Howe v. Roberts.

http://scholar.google.com/scholar_case?case=14486860911795629771&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Rather, the language of OCGA § 15-10-42, that magistrate courts are not subject to the Civil Practice Act, must be read to permit, rather than require, magistrate courts to follow the provisions of the Civil Practice Act, or any other appropriate rules and regulations relating to pleading, practice, and procedure, where to do so would "administer justice" under OCGA § 15-10-44. Certainly such language should not be construed to preclude the magistrate's use of the Civil Practice Act where such use is consistent with OCGA § 15-10-44.

 

 

Plus, there's always The losing party in magistrate court is entitled to a de novo appeal to state or superior court where, of course, the Civil Practice Act applies. OCGA §§ 15-10-41 (b; 5-3-29.

Share this post


Link to post
Share on other sites

@fisthardcheese @CCRP626 Out of curiosity why would they put this line into the general instructions? "Witnesses (Should accompany you. Notarized statements CANNOT be accepted as evidence at a trial.)"  Regardless of if it is or isn't accepted the affidavit, like @NormInGeorgia said, the affidavit "has more holes than swiss cheese."  The "business records" mentioned are not attached in the complaint nor is there proof of assignment of a specific debt.  Now, I've never done this before and you guys are the experts, but I think that is enough to get it dismissed if it does go to trial. 

Share this post


Link to post
Share on other sites

@CCRP626

 

Yes, the De Novo appeal is really the only saving grace of the Wild West Magistrate system.  Unfortunately, the appeal cost can be too costly for many people, so I would not go in banking on the appeal.

 

My goal is always to avoid having a Magistrate judge rule on anything.  My goal in GA Magistrate is just to frustrate the other side enough that they will give up - because when it comes down to it, they really don't want the Magistrate Judge ruling on anything either.  After all, the lack of rules is a wild card they have to deal with also (sometimes).

 

Since defendants are required to meet with the creditor attorneys before their hearings, this is where you can use a counter claim or arbitration motion to rattle their cage.  All they ever count on is to intimidate and bully scared pro-se defendants into signing a consent judgement with a payment plan.  If you refuse and stick to your counter, 99% of the time they give up.  I would much rather put all of my focus on this issue than have all of the best case law and Civil Court rules on my side and try to face a Magistrate Judge who doesn't know or care about the rules or laws himself anyway.

  • Like 1

Share this post


Link to post
Share on other sites

@fisthardcheese @CCRP626 Out of curiosity why would they put this line into the general instructions? "Witnesses (Should accompany you. Notarized statements CANNOT be accepted as evidence at a trial.)"  Regardless of if it is or isn't accepted the affidavit, like @NormInGeorgia said, the affidavit "has more holes than swiss cheese."  The "business records" mentioned are not attached in the complaint nor is there proof of assignment of a specific debt.  Now, I've never done this before and you guys are the experts, but I think that is enough to get it dismissed if it does go to trial. 

 

I was typing at the same time as you.  See my reply above as to why you don't want to go to trial in Magistrate.

 

The rule on affidavit was written with the consumer being the Plantiff in mind.  For instance, if you sued your neighbor, or you sued a car mechanic.  You must bring your witnesses in person.  However, in the case of a credit card company using an affidavit from an employee, they will consider this a "business record exemption" and will accept the affidavit.  It may not be techincally correct, but I have seen them do it, and the Magistrate Uniform Rules allow them to essentially do anything they wish.  It says it right in the rules.

  • Like 1

Share this post


Link to post
Share on other sites

I filed my counter claims.  I sent a court-stamped copy to their attorney and I kept a court-stamped copy for myself.

 

When I showed up in court, since they already had a copy of my counter claim, they came prepared with a mutual dismissal with prejudice order typed up already.  First, they tried to badger me to get me to admit the debt or agree to payments, but when I wouldn't budge they asked if I would agree to a mutual dimissal.  I said yes, they pulled out the order already typed up and we signed it and they gave it to the judge.

  • Like 1

Share this post


Link to post
Share on other sites

@CCRP626  Well, I will see if I can dig up one of my counters.  They are pretty bad and I would not advise anyone today to use what I used.  I claimed FDCPA violations that were so flimsy and poorly thought out because it was at a time when I knew nothing about the consumer laws and was just trying to learn what I could after I was served a suit. 

 

In fact, my first suit I countered with an FDCPA violation for not providing the name and address of the OC within 5 days of initial contact.  I claimed the summons was inital contact, since I recieved no dunning letters prior to suit.  However, after spending the subsequent 3 years learning and studying case laws, I now know that this was a horrible claim that never would have stood up in most courts.  Luckily, they dismissed and I didn't have to try.

  • Like 1

Share this post


Link to post
Share on other sites

You can have a look at the ones that I attached in post #40

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.