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URGENT HELP NEEDED

 

My husband (who I have POA for) was served summons May 2016  for credit card suit Discover Bank c/o Brock & Scott PLLC

.  Details below: Answers & Affirmative actions filed within 30 days June 2016.  

 

He is pro se right now as no income

 

Meditation and/or trial Magistrate Court Ellijay, GA on July 20, 2016
 
Discover Bank c/o Dorian xxxxxxxxx  (his location is Conyers GA but states on complaint Brock & Scott PLLC in Winston Salem address) versus the hubby
 
Question:  On July 20 what motions can be filed?  
 
Debt amount stated $2,7xx.38 is not accurate as Discover card accepts payments April, May & June 2016 - less than min amount
 
This is first communication from Discover - no prior settlement offers or contacts from collections
 
Letter rec'd from Discover Feb 2016 offering lower interest rate and stated charge off date end of Feb 2016.  
 
Only attached to summons is an affidavit from Discover Bank Litigation Specialist,  Feb to Mar statement - not reflecting lower interest rate which we accepted or so thought we did via letter.
 
 
1.  Asked for verification to attorney when we received summons - not afforded to prior as we did not know it was in collections - asked second time with answer - NO REPLY
 
2.  No cardholder agreements or anything else.
 
Q:  I believe we can request Motion to Dismiss?  OR Motion to Comple Discovery?  OR Strike Affadavit of debt?  OR 
 
Motion to compel Arbitration?  (JAMS)
 
Should we present arbitration request at mediation followed by trial...Very confused!  HELP
 
We can not afford an attorney to assist us due to very low income and no resources to borrow money for attorney.
 
Please any help as he can't speak well for himself & I must help him
 
 

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The problem you're going to have is proving the lawyer didn't send you a dunning letter 30+ days prior to filing the lawsuit.

For this amount, arbitration is a viable option, but being that it's an OC, there's a much greater chance of Discover following you into arbitration and then you could be in a worse boat than if you'd stayed in court.

If you want arbitration you have to demand it with Discover  (via their lawyer) right away and file a motion with the court that you want the court to order the parties into private contractual arbitration per the CC agreement. 

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3 hours ago, Suzie said:

1.  Asked for verification to attorney when we received summons - not afforded to prior as we did not know it was in collections - asked second time with answer - NO REPLY

The attorney was not required to reply.   After one has already been sued, verification is obtained through the discovery process.

 

Quote

We can not afford an attorney to assist us due to very low income and no resources to borrow money for attorney.

Since you're low income, contact Legal Aid in your state. 

 

2 hours ago, Harry Seaward said:

The problem you're going to have is proving the lawyer didn't send you a dunning letter 30+ days prior to filing the lawsuit.

Unless state law requires it, the attorney didn't have to send a dunning letter before filing suit.

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1 hour ago, BV80 said:

Unless state law requires it, the attorney didn't have to send a dunning letter before filing suit.

Yeah, that wasn't very clear on my part. I should have said: "If you plan to claim he did send a dunning letter before filing suit, you're going to have a problem proving it wasn't sent 30+ days before suing you."

There's a very limited window of opportunity to have an FDCPA claim wherein attorney sends a dunning letter, then before 30 days is up he files the suit and still before the 30 days is up OP sent a DV. If all of that happened in more than 30 days, no violation. 

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23 hours ago, Suzie said:

This is first communication from Discover - no prior settlement offers or contacts from collections

GA does not required them to communicate with you at all prior to suing.  Many creditors have stopped communicating and just gone straight to litigation to avoid counter claims.

23 hours ago, Suzie said:
1.  Asked for verification to attorney when we received summons - not afforded to prior as we did not know it was in collections - asked second time with answer - NO REPLY
 
2.  No cardholder agreements or anything else.

GA Magistrate Court also does not require that they send anything with the complaint.  Adding to the defense burden you cannot do discovery unless you get special permission from the court and that is rarely granted.

23 hours ago, Suzie said:
Q:  I believe we can request Motion to Dismiss?  OR Motion to Comple Discovery?  OR Strike Affadavit of debt?  OR 
 
Motion to compel Arbitration?  (JAMS)
 

Here is how Magistrate Court works:  he files a generic denial/answer to the summons.  Most Magistrate Courts have a pre-printed form that can be used.  Once that is filed the court will set a trial date typically within 30 days.  On the day of trial they will send you and Discover's attorney in the hallway to settle.  If you cannot settle it goes to trial.  While you technically can file motions in advance, the court will not even look at them until the day of trial.  In order to be successful at a motion to dismiss he has to have  a valid legal reason and there doesn't appear to be one.  You could try to motion for discovery but chances are slim to none the court approves that.  As for striking the affidavit:  that works with a junk debt buyer who is suing.  He is being sued by the original creditor which can use the affidavit to attest to their own records under the GA Business Records Law(s) so it won't be stricken.

Your best bet is a motion to compel arbitration and then pray that Discover doesn't follow through.  Discover has been known to arbitrate though.  If they do go into JAMS he will lose.

23 hours ago, Suzie said:

We can not afford an attorney to assist us due to very low income and no resources to borrow money for attorney.

Then you have a major problem.  You cannot represent him in this matter not even as his spouse with a POA.  You need to get to Legal Aid ASAP.

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