Sued by Midland in Georgia

[annasten]

Has anyone won in the Magistrate Court in DeKalb County, Georgia recently? I'm trying to determine a strategy because my research shows that the judge in that court typically allows all of the debt buyer's attorney's paperwork through the sworn affidavit, making it harder to wage a winnable defense.

Thank you in advance for any advice or tips.

[fisthardcheese]

Yes. Lots of us have won.  But you are right that the Magistrate judge will accept very weak or even non-allowed evidence like a flimsy affidavit.  So what you want to do is remove the case from that court's hands by pushing for your right to private arbitration.  Hopefully your Original contract has that.  Was the OC a credit card? Which bank was it and when was the last year the account was in good standing?

[annasten]

The OC was a Barclays Bank Delaware credit card account. From the records, it appears the last year the account was in good standing was 2011.

I found a generic Credit Card Agreement for Barclays on the CFPB website which includes the language for private arbitration, but does that agreement apply to all Barclays credit card accounts? Also, are you aware of any cases being dismissed by the debt buyer's attorney because of private arbitration? Thanks.

[fisthardcheese]

38 minutes ago, annasten said:

The OC was a Barclays Bank Delaware credit card account. From the records, it appears the last year the account was in good standing was 2011.

I found a generic Credit Card Agreement for Barclays on the CFPB website which includes the language for private arbitration, but does that agreement apply to all Barclays credit card accounts? Also, are you aware of any cases being dismissed by the debt buyer's attorney because of private arbitration? Thanks.

Yes, many cases are dismissed but it will require you to show up on your court date and force the arbitration issue.    If this were me, I would use the generic agreement from the CFPB that you have.  The other Barclay's agreement that is available online is from 2007 and it has stronger language that precludes "small claims" cases from being pursued in arbitration. 

GA Magistrate Courts work like a cattle call.  On the say of your hearing, the attorney will meet with you before going in front of the judge.  This is where you should assert your right to arbitration.  I would have with me 3 copies of each: The Card Agreement and my Motion to Compel Arbitration.  I would let the attorney know that I intend to ask the judge to order this case to arbitration per the card agreement.  The attorney will argue many things, most of which will be lies.  They will be about how arbitration is very expensive (it is - for THEM), or how the Barclay's agreement doesn't apply to Midland (it does), or that you have the wrong agreement (okay, then ask them to produce the correct agreement.  They won't).

 

Your first step is to file an answer that denies all of their allegations.  Once you file that, the court will set a hearing date for approximately 30 days from then.

[annasten]

Thanks again for the tips!

[fisthardcheese]

One other item I forgot to include that I would bring with me on the court date (3 copies), is an affidavit that declares that the card agreement I am submitting to the court is a true and correct copy of the card agreement for the account in question.  I would have it notarized.  I would only use this if the attorney starts questioning the card agreement in any way (the wrong one, doesn't apply, etc).  Once you present the affidavit, their only way to refute the card agreement will be tp present another agreement along with testimony from the bank that it is the correct one.   Also, do NOT agree to any continuance.  Often, when you trap them in a corner, the attorney will ask for another 30 days to look into the issue.  I would read the Magistrate rules regarding continuances and object to anything not allowed in the rules. If I recall correctly, they must have a good reason to be granted a continuance and not being prepared when THEY sued YOU is not a valid reason.