sprewell8

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

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4 hours ago, sprewell8 said:

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.

It is nothing more than fancy legalese designed to scare you but inform the court that this is the "relief" they are seeking from the court.  As long as you answer the summons and notify the court you will appear that is all that is necessary.  You do not have to copy that format in your answer.

 

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I would not settle in a Magistrate case with a JDB. 

The HSBC agreement has arbitration in it.  The 2009-2010 agreement listed AAA and JAMS and capped your fee at $50.  I would push for JAMS arbitration, as that will cost them over $5,000 to get to a hearing while your cost is capped at $50 per the agreement.  99% of the time, a JDB will never arbitrate due to the cost.  Force arbitration on them and they will usually drop the case against you.

I would use arbitration as my defense. I would show up to court and not allow the low-level attorney to intimidate me or lie to me about how expensive arb will be for me or that arb does not apply to them or that my card agreement is not the correct agreement.  I would stay firm in my wishes for arbitration.

http://www.scribd.com/doc/33688540/Hsbc-Best-Buy-2010

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@fisthardcheese Wow.  That sounds amazing... but it went over my head.  I need help with the terminology...

AAA?

JDB?

JAMS?

"use arbitration as my defense"?

SO, you're saying not to pay anything... respond to the summons, claiming no ownership of the debt (at all)... go to court... not settle with a JDB... push for JAMS arbitration... use arbitration as my defense... and wait for them to back-off?

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@sprewell8     Plese read this post.

 

 It has examples of an  Answers document and a Counterclaims document.    If the plaintiff does not have sufficient proof that they actually own a specific debt or account, then there would be no reason for you to settle.  

I would also not get distracted by advice that might apply to different states or different courts.  Focus on messages that specifically are talking about Georgia Magistrate court cases and procedures.

 

 

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2 hours ago, sprewell8 said:

@fisthardcheese Wow.  That sounds amazing... but it went over my head.  I need help with the terminology...

AAA?

JDB?

JAMS?

"use arbitration as my defense"?

SO, you're saying not to pay anything... respond to the summons, claiming no ownership of the debt (at all)... go to court... not settle with a JDB... push for JAMS arbitration... use arbitration as my defense... and wait for them to back-off?

Step #1 is to file an answer.  Your answer for Magistrate court does not have to be very fancy or particular.  All you need is to inform the court that you deny all of the allegations set forth by the JDB (Junk Debt Buyer - aka Capital Alliance or any other collector scum who is not the actual Original Creditor).  I don't recall off hand, but I think Fulton Co may have an answer form on their Court website that you can simply fill in and give to the court.

Once you file your answer, the Clerk will set a court date aprox 30 days away.  This gives you plenty of time to learn about arbitration or other possible strategies to use to beat these low life collectors.  We have been on a pretty big roll in GA with lots of people winning, so you have come to the right place.

JAMS and AAA are the two main arbitration firms that handle consumer arbitration cases.  If you look at your credit card agreement, you will usually see one of them listed in the arbitration section.  Once you file your answer and get that squared away, it would be good to actually read the arbitration section of the card agreement and get an understanding of exactly what it says.  This will help you when you show up to court and the collection attorney talks to you like you are a child and lies in order to confuse you or make you second guess yourself.  If you know what you are talking about and hold firm, 99% of the time they give up.

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@fisthardcheese is correct.   At only $1200 this sounds like a great case to use arbitration to force a settlement.    

So you would follow the steps he mentioned.  File your Answer document with the clerk and a few days later you will be given a trial date.   Don't worry about filing a counterclaim as I had mentioned doing previously.  Then you can pay the $50 to initiate arbitration and file a Motion to Compel Arbitration.

This thread below  has a good example of this procedure working and example documents.  You have to tailor them to your needs.

 

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12 hours ago, NormInGeorgia said:

@fisthardcheese is correct.   At only $1200 this sounds like a great case to use arbitration to force a settlement.    

So you would follow the steps he mentioned.  File your Answer document with the clerk and a few days later you will be given a trial date.   Don't worry about filing a counterclaim as I had mentioned doing previously.  Then you can pay the $50 to initiate arbitration and file a Motion to Compel Arbitration.

This thread below  has a good example of this procedure working and example documents.  You have to tailor them to your needs.

 

Personally, I would save the $50 and not file yet, however I would have the JAMS paperwork filled out and ready to file.  I would bring copies of them to court.  I will tell them I plan to file them the same day as soon as the judge grants my motion to compel arbitration.  Usually, that is when the attorney will pull out the dismissal form he carries with him.

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@NormInGeorgia & @fisthardcheese MUCH thanks!

I downloaded the "Answer" form from http://www.magistratefulton.org/smallclaims.php

I am struggling on whether to choose option 2 or 3 based on what I have read here.

(2) Defendant is not indebted to Plaintiff in any amount

(3) Defendant is not indebted to the Plaintiff in the amount claimed, but is indebted in the amount of $ ________

 

Option 3 is more correct... even though I don't remember the exact amount, but it was way less than $1200.  How do I remain as honest as possible?

 

Also, I have a lawyer friend who is willing to call the JDB and advocate for me.

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You can delete the affirmative defenses from that example if you want to.  Or just delete the one for SOL.  

I take three copies unsigned to the magistrate clerks office and sign them in front of the clerk. Clerk stamps all three.  Clerk gets one and you keep two.   One for you and one to keep in your back pocket for the judge just in case paperwork gets lost between the clerks office and the judge.  Beleive me, this actually happens.    If you do it this way, change "notary" to "court clerk" on the example document. 

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1 hour ago, sprewell8 said:

@NormInGeorgia & @fisthardcheese MUCH thanks!

I downloaded the "Answer" form from http://www.magistratefulton.org/smallclaims.php

I am struggling on whether to choose option 2 or 3 based on what I have read here.

(2) Defendant is not indebted to Plaintiff in any amount

(3) Defendant is not indebted to the Plaintiff in the amount claimed, but is indebted in the amount of $ ________

 

Option 3 is more correct... even though I don't remember the exact amount, but it was way less than $1200.  How do I remain as honest as possible?

 

Also, I have a lawyer friend who is willing to call the JDB and advocate for me.

I know @NormInGeorgia has a different approach, but to keep it simple, I would have no problem using that standard form they provide.  The answer to be is very easy.  #2 - I don't owe a single dime to Credit-whatever their name is.  They have never shown me that they even legally own this debt that I initially may have had with Best Buy (Cap1), so how can I say I owe them anything?  My answer is #2.

 

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On 3/10/2016 at 11:13 AM, sprewell8 said:

@NormInGeorgia & @fisthardcheese MUCH thanks!

I downloaded the "Answer" form from http://www.magistratefulton.org/smallclaims.php

I am struggling on whether to choose option 2 or 3 based on what I have read here.

(2) Defendant is not indebted to Plaintiff in any amount

(3) Defendant is not indebted to the Plaintiff in the amount claimed, but is indebted in the amount of $ ________

 

Option 3 is more correct... even though I don't remember the exact amount, but it was way less than $1200.  How do I remain as honest as possible?

 

Also, I have a lawyer friend who is willing to call the JDB and advocate for me.

I don't you know what you mean by having a "lawyer-friend call and advocate for me."  Just having any lawyer get on the phone and try to settle the case for you is not a good idea, in my opinion.  Now, if you have a good and experienced consumer lawyer like www.skaarandfeagle.com who was going to represent you and fight this case, that would be fine.  Otherwise, follow the advice given by @NormInGeorgia and @fisthardcheese  They have helped others like you on this board many times and have been very successful.

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Hey guys, just following up to close out this thread.

I denied association with the debt.  Stenger & Stenger showed proof and requested that we meet with a mediator.

After repeatedly denying the debt.  The legal representative from Stenger & Stenger played a recording from my initial phone interaction about the debt, where I acknowledged ownership.  So I was forced to settle for $800 on a $1200 debt... spread out over 4 payments.

Thanks for all your help.

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1 hour ago, sprewell8 said:

Hey guys, just following up to close out this thread.

I denied association with the debt.  Stenger & Stenger showed proof and requested that we meet with a mediator.

After repeatedly denying the debt.  The legal representative from Stenger & Stenger played a recording from my initial phone interaction about the debt, where I acknowledged ownership.  So I was forced to settle for $800 on a $1200 debt... spread out over 4 payments.

Thanks for all your help.

 

The phone interaction was with who?  The OC, JDB, or Stenger?    

Was this "mediation" during your court appearance?  Did Stenger show proof that the OC had sold your account to the JDB?   If so, who did they show it to?  The judge?    

Need more info about how all this went down because it sounds very odd.

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@sprewell8 Why did you even have a mediation when you were taking this to JAMS? The court allows you to request to be excluded from their ADR process. Whatever happened to your JAMS plan? Mediation isn't binding. The first you heard about this recording was seconds before it was put in front of you? There was no disclosure before the meeting? Even if you signed something you can still compel arbitration by your card agreement. They can try to throw a bunch of "evidence" in front of the Judge but the one thing to be decided is if there is an agreement to arbitrate and if you've waived your right to arb. Mediation is not litigation and does not affect your right to private contractual arbitration STRESSING the private contractual since the court also has its own arb program you don't want.

 

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

Any settlement offers discussed in mediation shall not be presented to the judge.  In addition, neither the mediator nor any court designee shall willingly testify for or against either party involved, should either party end the mediation process and litigate the matter in court. 

If a settlement agreement is not reached and the parties proceed to trial, evidence that has not first been viewed by the other party will not be considered by the judge.

http://godr.org/sites/default/files/Godr/supreme_court_adr_rules/CURRENT ADR RULES COMPLETE 5-28-2014.pdf

Parties cannot bargain effectively unless they have sufficient information. Informed consent to an agreement implies that parties not only knowingly agree to every term of the agreement but that they have had sufficient information to bargain effectively in reaching that agreement.
Self-determination of the parties in a mediation includes not only informed consent to any agreement reached but participation in crafting the agreement as well.
The mediator must guard against any coercion of parties in obtaining a settlement.
 
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10 hours ago, sprewell8 said:

Hey guys, just following up to close out this thread.

I denied association with the debt.  Stenger & Stenger showed proof and requested that we meet with a mediator.

After repeatedly denying the debt.  The legal representative from Stenger & Stenger played a recording from my initial phone interaction about the debt, where I acknowledged ownership.  So I was forced to settle for $800 on a $1200 debt... spread out over 4 payments.

Thanks for all your help.

Thanks for at least letting us know how your case turned.  Some OPs never do that.

And if you can, please answer the questions from CCRP and NorminGeogia

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@CCRP626 My best answer to all your questions is that I am new to this.  And after to doing some research, reading stuff on this website and talking to a lawyer friend... I figured it would be cheaper and easier to settle for a lesser amount and just pay it off.

The debt was my debt.  And I couldn't use statue of limitation.

Next time (which is now) hopefully you can give me all the right answers.

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@NormInGeorgia

The phone interaction was with who?  The OC, JDB, or Stenger?    

-- Stenger

Was this "mediation" during your court appearance?  

-- No, not during a court appearance.  Stenger requested a mediation session. 

Did Stenger show proof that the OC had sold your account to the JDB?   If so, who did they show it to?  The judge?    

-- Yes.  They showed it to me and the mediator.

 

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@sprewell8 get the motion to compel private contractual arbitration going. Last time you posted was in March with no indication mediation was going on then you update after mediation is held. Much harder to help you fix things after they happen than before they can start but I think you can still get this on track. Where was this lawyer friend who was supposed to advocate for you? He could have been all over things like a recording

Whatever was shown yesterday at the mediation, how much time did you get to review it? When were you informed they had documents/recordings? Do you have those documents? If you want to attach them to a post someone here can review them (redact your personal detail).  It sounds like the whole idea for their request for mediation is to push you into something without any of the protections you could have called for in court where you have time to review evidence beforehand and object to it.

get the motion to compel private contractual arbitration going.

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On 8/18/2016 at 3:46 PM, CCRP626 said:
 

@sprewell8 get the motion to compel private contractual arbitration going. Last time you posted was in March with no indication mediation was going on then you update after mediation is held. Much harder to help you fix things after they happen than before they can start but I think you can still get this on track. Where was this lawyer friend who was supposed to advocate for you? He could have been all over things like a recording

Whatever was shown yesterday at the mediation, how much time did you get to review it? When were you informed they had documents/recordings? Do you have those documents? If you want to attach them to a post someone here can review them (redact your personal detail).  It sounds like the whole idea for their request for mediation is to push you into something without any of the protections you could have called for in court where you have time to review evidence beforehand and object to it.

get the motion to compel private contractual arbitration going.

The case is over.  He agreed to a settlement.

In GA Magistrate, no evidence has to be handed over ahead of time.  The court is purely designed to be by ambush.  Additionally, whether it is an official mediation or not, the JDB attorneys will confer with consumers before court time and attempt to intimidate and bully them.

However, if the OP had listened to all of the advice prior to his court date, he would have seen that I quite clearly told him that the JDB lawyers would do anything they could to try to scare him into a settlement or consent judgement and all he had to do was keep repeating that he wanted private arbitration and not agree to anything.  Who cares if they had a recording, that doesn't matter when the contract and the Supreme Court says I have a right to arbitration and Magistrate Court is not the proper jurisdiction to hear the case.  They are welcome to use the recording in the arbitration hearing after they pay JAMS the $5000.  Oh well..... Too late for that now. 

OP's other problem was listening to some "lawyer friend" who likely never deals with these types of things.  Just like @debtzapper told him, he should have listened to us instead and he would have settled for $0.

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I am posting this for the benefit of  GA defendants in debt collection lawsuits who might want to come here for advice.    @fisthardcheese and @NormInGeorgia are both GA residents and members  and their strategies have helped MANY GA defendants to win their cases.    You can read the threads.  But you have to put in the time and do the work, and most of all,  when you come here to seek the help and advice of others, you have to be BE IN IT TO WIN IT.

 

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2 hours ago, fisthardcheese said:

The case is over.  He agreed to a settlement.

The OP is gone I'm sure but I'd think the circumstances leading to the settlement offer would allow the court case to remain open and the MTC Arb to be filed. GODR has procedures if the mediation thing went off track like it sounds like it did here but that's like screwing up in trial court with the plan you'll unwind it during an appeal.

I'm also curious when the JDB requested mediation and how much time/notice between then and the mediation since the parties have the option to request removal from ADR.

ENFORCEABILITY OF AGREEMENTS.Written and executed agreements or memoranda of agreement reached as a result of a
court-connected ADR process are enforceable to the same extent as any other agreements. Oral agreements shall not be enforceable.
 

 

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