jmay

Sued by Unifund in Georgia, AGAIN

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Hi everyone,

I am being sued by Unifund but have not been officially served by them.  (I live in North Georgia)  The amount is about $13,000 and most recently the sheriff's office sent someone out but my husband did not want to take the papers understood and left with them.  The suit was opened last fall and they have recently asked to reserve me since we moved.  I am almost positive this debt is barred by SOL but apparently that does not matter to Unifund.  My husband went to the courthouse and saw that it says "Projected date of default" on my lawsuit with a date of early this year.  Please, can anyone tell me what that means?  I know it must not mean about being served and not answering because below that is the request to reserve at amended address at our house.  I do not want to hire an attorney and would like to fight these vultures myself.  How long do they have to attempt to serve me?  The last lawsuit with Unifund they dismissed it after one year of not being able to serve us because again we had moved/renting a house in north Georgia.  So, two questions:

1. What does projected date of default mean on my lawsuit paperwork if I have not been served and I would have last used this card in 2009 most likely if this is even my debt?

2. How long are they allowed to try to serve me before the case gets dismissed? 

Any advice on how to successfully fight this lawsuit is much appreciated.  Thanks very much.

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Have you pulled your credit reports to see when the dates are for the original creditor entry?

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Thanks for the reply.  :)  I have been checking my credit report and it is not even on there???  which confuses me even further.  My credit is improving rapidly with hard work and I hate to have it ruined by this.

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4 minutes ago, jmay said:

Thanks for the reply.  :)  I have been checking my credit report and it is not even on there???  which confuses me even further.  My credit is improving rapidly with hard work and I hate to have it ruined by this.

Might be barred, might not be; depends on the nature of the underlying debt and also whether plaintiff can convince court that you've been moving around or otherwise attempting to avoid service (which could work to toll the statute). You seem unsure whether this is yours or not ("if this is even my debt"), so, for starters, to properly defend, you need to make that determination first.

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Who is the OC.

What is the last date you made a payment to the OC?

What is the date the lawsuit was filed by unifund?

Is this is Magistrate or Superior Court?

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Thanks.  I never thought about that with them trying to prove moving around.  We definitely were not trying to move to avoid service, we just rented two different places while building a house which took longer than we thought it would and one place we were renting was put up for sale.   I definitely need to find out if it is my debt and will try to do that.   I know when I lost my job in 2007 things got bad and as much as I tried to keep up my three cards I was only able in the end to keep one in good standing and the other two closed.  So it could be mine but would like proof.

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Hi First Hard Cheese  (love that name)--this is definitely Magistrate court.  My husband determined that yesterday.  Also, curiously, before I was able to follow the status of the case online but this time the only way my husband could pull up the case was by going to the courthouse in person.  Even after getting the case number yesterday we couldn't pull it up online which is strange.  My husband just called to ask about the projected date of default and wrote this to me in his email.  It really makes me nervous that the court has me as "projected defaulting".

 

You don’t have a judgement against you, as it would have said so in the proceedings.  I asked her about the date and she said, if the defendant hasn’t been served, then she doesn’t know why it would be in there.  Note it is “projected default date” and not “default date”.  

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I think by OC you mean the original creditor?  That would be Citibank.  I would have likely made my last payment in 2009.   I don't have records on how to see this and since I have not officially been served I don't have their paperwork but only what the courthouse listing says.  The case was filed with the court in early October, 2015.  Hope this helps?!  Thanks so much.

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@jmay

The SOL in GA is 6 years.   If possible, get copies of your bank records from 2009  (and early 2010) to see if you made payments to Citi after Oct., 2009.    If you can show the debt is time-barred, you have an FDCPA counterclaim.

If you can't get copies of your bank records, then just raise the SOL as an affirmative defense.   Read the Magistrate Court rules regarding discovery.

I thought Magistrate Court is small claims?

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Ok, thanks.  Very good advice there.  I will try to get the records from my credit union in 2009 and see when my last payment was.  I'm not sure I follow on Citibank having a small claims exemption for arbitration but that is because I know so little about all of this so I clearly need to read up on what all these terms mean to be able to understand how to move forward.  I am surprised they have not tried to serve me at my work since they clearly have missed me by doing so during the day.  I guess I can go downtown and ask for the papers myself but then the clock starts ticking and I wanted to learn how to fight this first and am SO VERY THANKFUL to each of you for advice. 

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14 minutes ago, BV80 said:

@jmay

The SOL in GA is 6 years.   If possible, get copies of your bank records from 2009  (and early 2010) to see if you made payments to Citi after Oct., 2009.    If you can show the debt is time-barred, you have an FDCPA counterclaim.

If you can't get copies of your bank records, then just raise the SOL as an affirmative defense.   Read the Magistrate Court rules regarding discovery.

I thought Magistrate Court is small claims?

GA Magistrate does not have discovery.  It is court by ambush.

They also do not have to provide anything with the complaint, so it is likely there is nothing more than you already know. I doubt you get anything else when you are served except maybe a joke an of affidavit from someone from Unifund stating that unifund's records are accurate.

I would likely go with arbitration for this one unless you can find out for sure that this is SOL.  Since they filed in October, my guess is that your last payment was likely just after october 2009.  They usually file suit right before SOL, but mistakes can happen so it's good to check.

Arbitration with Citibank agreements have worked previously in GA Magistrate.  Check my post history to find lots of information and wins in GA Magistrate using arbitration.

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Whoa, court by ambush is intimidating, lol.  But I am not surprised.  I am off to read up on your post history to try to learn from you First Hard Cheese as it becomes increasingly clear how little I know about this.  Is arbitration where we negotiate a settlement?   Thanks again.

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Citi for 2008/9 has one of those ambiguously worded "all claims" then small claims card agreements but it seems to get out of small claims grasp you set your counterclaim/arb amount above $15,000 if that's what Georgia's limit is?

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Just now, CCRP626 said:

Citi for 2008/9 has one of those ambiguously worded "all claims" then small claims card agreements but it seems to get out of small claims grasp you set your counterclaim/arb amount above $15,000 if that's what Georgia's limit is?

SIGH. That won't work in GA.  You cannot file a counter claim for more than the limit of Magistrate Court.  If Cit has an exemption that states actions in small claims are not eligible for arbitration and Unifund already filed there you cannot force it to arb by filing another case at a higher liimit.  GA has one of the highest small claims limits in the country. 

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Oh no, not a SIGH! What is Georgia's rules on ambiguous one-sided contracts if it says it's under the FAA and South Dakota law applies?

Citi's agreement also states past/present/future claims among other blanket terms? Why would a current small claims case prevent someone from starting a completely separate arbitration under the cardmember agreement?

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2 minutes ago, Clydesmom said:

SIGH. That won't work in GA.  You cannot file a counter claim for more than the limit of Magistrate Court.  If Cit has an exemption that states actions in small claims are not eligible for arbitration and Unifund already filed there you cannot force it to arb by filing another case at a higher liimit.  GA has one of the highest small claims limits in the country. 

Oy.....I feel like I am in calculus class, lol.  My husband is reading up on what you have each recommended as well so hopefully between the two of us we will get better versed on things pertaining to JDB lawsuits.  Dang, I sure wish that would work for us to do the counterclaim.  I have worked so hard to get my credit back to where it is today after so much loss when the market tanked in 2008 and I lost my job so I would like to avoid bankruptcy if at all possible also but at the same time we do not have the money for them if we lose.

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LOL,

3 minutes ago, CCRP626 said:

Oh no, not a SIGH! What is Georgia's rules on ambiguous one-sided contracts if it says it's under the FAA and South Dakota law applies?

Lol, I needed this laugh today so thanks for that.  :D  I would like to know the answer to your question as well.  I remember seeing posts from Clydesmom when I first started reading up on this also so I know I'm in good company here. 

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@BV80  @jmay

I ignore any "small claims exceptions" in the agreements.  They are all ambiguous plus this is magistrate with rent-a-lawyers on the other side who don't read the agreements anyway.  Here are recent GA Magistrate cases with a Citi agreement where pushing arb resulted in a win:

 

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52 minutes ago, jmay said:

Whoa, court by ambush is intimidating

Just remember that it works both ways.  That's why filing either a counter claim or arbitration motion against a JDB in Magistrate courts have been working very well on these boards recently.  The other side is just as afraid to mess with a claim against them in the "anything-goes" magistrate court too.

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@fisthardcheese SIGH! or do they also say contra proferentem in Georgia?

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