sprewell8

First Timer... Summoned by Stenger & Stenger... What now?

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Hey, I was summoned by Stenger & Stenger about 2 weeks ago.  I spoke with a rep on the phone, and they offered a 80% settlement. I asked her to send me paperwork to review.  What now?

1. Who is suing you?

  • Capital Alliance Financial LLC represented by Stenger & Stenger, P.C. in Grand Rapids, MI

2. For how much?

  • about $1200 + filing fees

3. Who is the original creditor?

  • HSBC - Best Buy

4. How do you know you are being sued?

  • Summons

5. How were you served?

  • Hand delivered to me on Feb 20, 2016.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

  • A few letters... but I never responded.  Last letter came on August 6, 2015

7. Where do you live?

  • Georgia

8. When is the last time you paid on this account?

  • Never

9. What is the status of your case (if anything has been opened)?

  • I don't know.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

  • No.

11. Did you request debt validation before the suit was filed?

  • No.

12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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.

  • Yes.
  • 1. Defendant named resides in Fulton County...
  • 2. Defendant is indebted to Plaintiff in the sums of $1,153.23....
  • 3.  Wherefore, Plaintiff respectfully requests judgment against Defendant...

13. What evidence did they send with the summons? An affidavit? A statement from the OC? Anything else they attached as exhibits?

  • Plaintiff's affidavit
  • Account statement
  • Recent bill
  • Assignment and bill of sale

14. What is the SOL on the debt?

  • ???

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@sprewell8   please confirm if the summons is from Magistrate court.

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20 hours ago, Happybluesky said:

The first thing to figure out is the last transaction on account.

Then compare to SOL.

SOL is your best defense if available.

I think the last payment was September 2009... but I'm having trouble locating this information.

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3 hours ago, NormInGeorgia said:

@sprewell8   please confirm if the summons is from Magistrate court.

Yes.  The summons is from Magistrate court.  I looked it up on Georgia's Fulton County Magistrate website.

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From above posts:

Last transaction was a payment from 2009.

Check date complaint was filed.

If difference is in excess of SOL, then you have a solid defense, and also a $1,000 payday coming from plaintiff for violating the FDCPA.

(Sometimes SOL is computed from default date, otherwise from last transaction.)

Maybe plaintiff will allege a later payment.

Fine, let them produce a record showing later payment.

Ideally, just say alleged statements produced by plaintiff reflect last transaction was outside of SOL.

That way, you never admit to the debt - you're just saying that on face of complaint and alleged statements produced by plaintiff action is time-barred.

 

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Thanks @Happybluesky

I'm digesting and deciphering all that information.

How do I find out the time for SOL?  I'm in the state of Georgia... if it's just a google search, forgive my ignorance.

The debt was first sold on August 2, 2011.

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The record shows date complaint filed.

That's the first date you need. (NOT date you were served!)

Look up SOL here:

http://law.justia.com/codes/georgia/2014/title-9/chapter-3/article-2/

My reading is:

Action for breach of written contract is 6 y from breach.

Action on account is 4 years from last transaction. //

For most SOL purposes date account sold is irrelevant.

 

 

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In Hill v. American Express (2008), the GA Court of Appeals ruled that a credit card account is a simple written contract subject to the 6-year SOL.

 

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1 hour ago, sprewell8 said:

How do I find out the time for SOL?  I'm in the state of Georgia... if it's just a google search, forgive my ignorance.

I have lived in GA and been in Magistrate Court on this type of case:  the SOL is 6 years from the date of DEFAULT which would be 30 days after your last payment or when the payment was due if you never paid on the account.

I would not recommend following HappyBlueSky's advice on this issue.  Magistrate Court in Fulton County is run like an actual court and not like the good ole boy network in some of the rural counties of GA.  They do not allow discovery so you do not need to worry about that.  File a simple answer denying their claim and start researching on whether you do have an SOL defense.  The important date is when they FILED the case.   As long as it is one day inside that SOL it will fly.  

 

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If you don't assert the SOL defense it may be waived.

Figure out whether the SOL defense is even maybe valid, and if so include it as an affirmative defense with your answer.

Between the answer and affirmative defenses you could also include an FDCPA  counterclaim for filing an action which is barred.

I never heard of filing a simple answer without affirmative defenses, except when there are no defenses.

 

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2 hours ago, BV80 said:

In Hill v. American Express (2008), the GA Court of Appeals ruled that a credit card account is a simple written contract subject to the 6-year SOL.

 

Not sure which state HSBC had as the law of choice in their cardmember agreement, but how is Georgia for following that if the SOL is shorter?

If last payment is Sept 2009, it doesn't matter though, the 6 years should be fine.

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@sprewell8  If you can make a copy of the summons and "evidence" documents, redact ALL your personal info with a marker, scan the papers and post them here, it would be helpful in determining exactly what is going on.

If you can find out exactly when your last payment was made that would be good.  You might be able to figure out the default date from looking at your free credit reports online also.

The main things you want to do at this point are make sure you submit your Answer document to the court BEFORE  the 30 days is up.   You definitely need to file a Counterclaim document at the same time as your answer.    If you push back on them and stand up for your rights and file a counterclaim, it is very likely they will settle with you and if they really are outside the 6-year SOL, then you might actually get them to pay you some money in the settlement.     There are example Answers and Counterclaim documents in some of my old posts.   Just tailor them to your needs.   The folks on this board have been very helpful to me and I think we can all help you out also.   Listen specifically to people who are familiar with Georgia procedures.  Other states are different.

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11 hours ago, CCRP626 said:

Not sure which state HSBC had as the law of choice in their cardmember agreement, but how is Georgia for following that if the SOL is shorter?

Nope.  GA does not allow choice of law.  They will use the 6 year SOL.

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12 hours ago, Happybluesky said:

I never heard of filing a simple answer without affirmative defenses, except when there are no defenses.

Magistrate Court is VERY different.  You can actually file a personal appearance answer.  ALL that has to be said is you deny the allegations and want a trial.  That is it.  In fact many Magistrate Courts in GA have a preprinted form where you check off your answer i.e. deny, admit, paid etc.  and hand it to the clerk.  A formal answer with defenses is NOT needed.  

The problem with a LOT of your advice is it is based on what you have "heard" and not what the laws and rules of other states are.

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Thanks guys for all the advice.  It's awesome that there are still good people in the world.

@Happybluesky The last payment was made on Feb. 13, 2011.  So if my math is correct, the SOL argument is not valid because I am still within 6 years.

@BV80 Thanks for that bit of information. 

@Clydesmom Now that I have all this information, I think I just want to settle... what is the best way to negotiate the lowest payment? Are there any key words I should say?

Also, how should I respond to the magistrate court?  Should I admit that I own the debt?

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15 hours ago, Clydesmom said:

 

I would not recommend following HappyBlueSky's advice on this issue.  Magistrate Court in Fulton County is run like an actual court and not like the good ole boy network in some of the rural counties of GA.   

 

Evidently you meant Magistrate Court in Fulton County is NOT run like a regular court.

Else one would certainly include any affirmative defenses with answer. //

 

 

 

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1 hour ago, sprewell8 said:

Also, how should I respond to the magistrate court?  Should I admit that I own the debt?

GOOD GRIEF NO.  DO NOT admit you own the debt.  Deny it just in case they won't settle and you have to fight.

1 hour ago, sprewell8 said:

I think I want to settle... any suggestions on how to move forward?

You can send a settlement letter to the attorney/law firm and I would word it stating while you deny the debt in the interest of getting this off your radar you are offering a settlement of X amount, no 1099-c and any remaining amount remains in dispute and the debt is settled IN FULL.  Also, removal of the trade line from credit reports and they cannot sell the remaining balance as it is disputed.

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50 minutes ago, Happybluesky said:

Evidently you meant Magistrate Court in Fulton County is NOT run like a regular court.

Else one would certainly include any affirmative defenses with answer.

NO.  The Rules of Civil Procedure are very different for Magistrate Court in the entire STATE of Georgia.  Not just Fulton County.  It is run like a regular court.  It is their version of small claims and it has one of the highest small claims limits in the country:  $15,000.

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A few suggestions:

1. Make sure you make at least the minimum court appearance to avoid a default judgment while negotiating settlement.

If there is a choice between filling out a court answer form or making a physical first appearance, I would fill out the form.

2. I would offer $50 to $100 to start the negotiation.

     Attach copy of your answer form with court stamp - that shows that they will not get a default judgment.

     If they get paid back court costs plus a few bucks, and get to check off the "case closed" box, that isn't so bad for them.

3. Is the later payment something you discovered on your own, or is that just what is claimed by plaintiff? Unless it is reflected in documents already produced by plaintiff, or alleged in complaint, keep that to yourself!

    

     

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@Happybluesky @Clydesmom

 

1. Yes, I will do that ASAP.  I was served on Feb 20... and I know I have 30 days to respond, so I will respond ASAP.

I'm make sure not to claim the debt.  But how do I respond to this? "3. WHEREFORE, Plaintiff respectfully requests judgment against Defendant in the amounts alleged in paragraph 2 herein, plus costs of the court, plus interest on any judgment received, and for any further relief this court deems just and fair.

2. Cool.

3. I discovered it from searching my past emails.  Best Buy sent me emails confirming my payments, and that was the most recent one.

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No need to respond to "Wherefore" clause.

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