SkyStillSunny

Had something not expected happen in GA court!

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I've been reading through everything in this forum to help me prepare to defend a lawsuit brought on to me by Greene & Cooper (representing Midland Funding). The OC is Comenity Bank, and they sold it to Midland. The debt is $1600. I got served at the end of September, answered the suit denying all allegations, and was prepared to MTC arbitration in court.

Well, on my court date, there was a local counsel representing Midland and when we went to mediate I gave her my MTC arbitration, and she was completely confused. She looked at my document for 30 seconds, then looked at the credit card agreement for another minute. She told me to hold on, called someone and spoke to them for 20 minutes out in the hall, then came back and said that they were going to oppose the arbitration.

So we go before the judge (this is in Forsyth County, GA). I say that I would like to settle my dispute via arbitration, and here is my MTC, attached with the credit card agreement giving me the right to pursue this option. Then the judge asks the plaintiff, and she says that they oppose the arbitration because Greene & Cooper have no contractual obligations to me, and that if I wanted to arbitrate, that I'd have to take it up with the client - Midland Funding, who she also says has no agreement with me to arbitrate. Well the judge listened to her, then took my MTC and agreement and read it over.

He said that I was allowed to pursue arbitration if that was my wish, and that I had that right, but then goes on to say how expensive it's going to be and if I really wanted to do this. Directing it at me. I told him about the clause that said the bank would be responsible for the fees associated with it, and he stops and asks again if I wanted to pursue it because I was the one that brought the MTC. I said yes.

Then he said my MTC to compel arbitration was granted. The rep for Greene & Cooper didn't say anything. She just sat there, and said I would have to take it up with Midland and that they were just the attorneys representing them. The judge then says that I have to orally report the status of the arbitration scheduling to the court within 30 days. If I or the other party do not do this, then a status hearing will be scheduled.

I'm getting worried because I don't know what to do next. The judge said it was my responsibility to find an arbitrator and schedule the process for it. That's not really what I wanted to happen. I was hoping that Greene & Cooper would file a motion to dismiss after realizing I wanted to arbitrate. HELP!

Am I going to be responsible for arbitration fees? Do I need to schedule it? Do I need to send a copy of my MTC to Greene & Cooper or Midland? The rep there didn't take anything, and just left after the judge gave her a copy of the order. 

I'm so confused. Is there anyone that can help me to figure out what to do in this situation? I feel like the judge was annoyed that I presented an MTC arbitration, and was trying to make me think that I would have to do all the legwork and pay all the fees. 

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I've attached the arbitration portion of the credit card agreement. It starts at the bottom of the first column. This was the agreement that Greene & Cooper sent me in the first place, even though I defaulted later than this agreement in 2015. I think this agreement was from 2011, when the account was open.

arbitration.pdf

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2 hours ago, SkyStillSunny said:

Then the judge asks the plaintiff, and she says that they oppose the arbitration because Greene & Cooper have no contractual obligations to me, and that if I wanted to arbitrate, that I'd have to take it up with the client - Midland Funding, who she also says has no agreement with me to arbitrate.

Don't panic.  This is the new tactic the junk debt buyers and their lawyers are taking to combat consumers asking for arbitration.  You did just fine.  The reality is Midland stepped into the place of the original creditor with ALL rights and responsibilities which means they are subject to the contract as much as you are.  What Midland wants is the court to say  you are obligated to pay but they are not obligated to abide by the terms of the card agreement and the Judge in your case didn't fall for it.

2 hours ago, SkyStillSunny said:

Directing it at me. I told him about the clause that said the bank would be responsible for the fees associated with it, and he stops and asks again if I wanted to pursue it because I was the one that brought the MTC. I said yes.

He actually was correct in asking because in some arbitration clauses it does state that the party initiating pays.

2 hours ago, SkyStillSunny said:

I'm getting worried because I don't know what to do next. The judge said it was my responsibility to find an arbitrator and schedule the process for it.

You are absolutely fine.  Go to the JAMS website and open a case.  You do not have to pay your $250 portion just yet to get the ball rolling.  What happens after that is once you open the case you send a letter CMRR to Midland and their attorney stating you have opened the case with JAMS as instructed by the court and per the terms of the card agreement they provided you are asking they advance the fees as required.   Midland won't do it.  This is way too expensive for them.  Your fee is capped at $250 regardless of what they tell you.  If you have to go back to court in 30 days you can honestly tell the Judge you opened the arbitration case and you are waiting for Midland to pay their fees.  Let Midland explain to the court why they didn't comply with his order.  LONG before that happens Midland will either ask you what it takes to dispose of this (removal of trade line and dismissal of arb/court with prejudice) or outright dismiss the court case and walk away.  Either way you win.

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16 minutes ago, SkyStillSunny said:

I've attached the arbitration portion of the credit card agreement. It starts at the bottom of the first column. This was the agreement that Greene & Cooper sent me in the first place, even though I defaulted later than this agreement in 2015. I think this agreement was from 2011, when the account was open.

arbitration.pdf

#5 Choosing the Administrator of the arb section allows a party to choose AAA or JAMS as the forum. #8 Location and Costs of Arbitration states..."We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys' and experts' fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to."

You can compare this clause to a later version of the same agreement to see if the arb section is more favorable to you. I am not a lawyer, but this 2011 arb section seems pretty favorable to you, in my opinion. @fisthardcheese has many posts here on CIC that explain how to file with AAA or JAMS. 

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First off, I am not shocked that Midland did not immediately dismiss. I wonder how many times they have heard the MTC arb only for the defendant to then not pursue arb and then Midland can go on. They want to see if you are serious first.

The only point is when the plaintiff argued that there was no agreement, I would have immediately stated that Midland stepped into the shoes of the original creditor when they purchased the account and Greene & Cooper was their attorney and thus must abide by the original agreement. In this case, the judge saw that too but for future people reading the thread, this is good to say and have on court record.

Even if you have to pay $250, that is the limit for you. They will have to spend $1000 just to get this started. As others have said, get the process started and report back to the judge in 30 days that you have started the arbitration process and that it is up to Midland to decide what they want to do at this point. The judge will push Midland to make a decision and chances are, this is the point where they will either contact you to find out what it will take to make this go away or they will walk away themselves.

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@SkyStillSunny  Congratulations !!!!   You did perfect!  That is exactly the outcome that you wanted and needed!    Ignore what the JDB lawyer and the judge told you that was all intended to intimidate and confuse you.  You ROCKED it because you knew what the arbitration agreement said and you knew your rights under the law.   Lawyers and judges tend to resent it when regular people know their rights.   

As @Clydesmom said "@fisthardcheese has many posts here on CIC that explain how to file with AAA or JAMS."    I think I posted at least one example for when I chose AAA.   I don't have experience with JAMS but I think @fisthardcheese recommends it.    It's really an easy process and you will be able to prove to the court that you did your part and followed the instructions to start the arbitration case.    But Midlands will probably call you before you even have to report the status back to the court.  If so, you will have the ability to settle and get a dismissal with prejudice because the court no longer has jurisdiction when you invoke contractually binding arbitration clauses.    

Great job!  You are almost at the goal line now, just a little more work to do.   

 

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I believe Midland is banned from AAA because they won't pay the membership fees.  JAMS is also another advantage because it costs more to Midland than AAA.  I would choose JAMS simply to push Midland to drop the entire think and walk away.  Too much risk with AAA that Midland decides it is affordable and does arbitrate if they are allowed to use it.

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You did a fantastic job in court!!!!  There is no need to worry.  These types of cases are rarely dismissed in court anymore because they just are hoping you get scared off or don't complete the next steps and they can show back up in court in 30 days and still get their default judgement.  All you have to do is file the case in JAMS.  There is a 99.9% chance this never gets to a hearing in arbitration.

G&C are a special kind of attorneys who like to lie in court, as you see.  You can not file a JAMS case online.  This is what you need to do:

Download and fill out this form: https://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf

The instructions for filing are on that form.  If you have the name of the attorney that showed up to court, I would put her name as the representative for Midland on the form (naming her specifically is just more fun). If you don't have her name, just use Green & Cooper. 

You are the "Claimant" and they are the "Respondent".

If this were me, I would add Green and Cooper as a second Respondent due to all of the blatant lies that the attorney told both you and the judge in court.  I would add that as a counter claim to my arbitration.  The attorney will throw an even bigger tantrum when they see you are trying to drag them into this mess that they created.  Let them.  They can answer to JAMS about any problems they have with it. :)

  Do NOT check the "mediation" box and do NOT check the "expedited" box.

For "Nature of dispute" I would claim that Midland violated the FDCPA and ask for statutory damages of $1,000. Do NOT mention the alleged debt or that they sued you. Only mention YOUR claims against them.

As the instructions on the form state, you must send 2 copies of this demand form along with the card agreement to JAMS.  You also need to send a copy of each to G&C.  I would print a 4th copy to file with the court as well.  I would send everything CMRRR so you have proof for court that you sent a copy to both JAMS and G&C.  Do not send any money to JAMS.  Instead, I would send a cover letter that states that you are submitted a consumer arbitration case and that you have asked Midland to forward the filing fee per the included contract.  Often, I will highlight the section of the agreement that states they will pay your filing fee and JAMS costs on both the copies I send to JAMS.

The address to mail your JAMS paperwork is here: https://www.jamsadr.com/jams-atlanta

JAMS will contact both parties, but it may take more than the 30 days given by the court.  Just be prepared to let the court know that you filed and are waiting for JAMS to schedule a hearing.  If the court sets a new hearing date, don't worry and just prepare to show up to court again with copies of all your JAMS papers.  By that time, you should have a JAMS case number to give the judge.  JAMS will do everything by email once you mail the initial forms, but they do move slower than court.  Just keep doing what the court asks you to do and show everything you are doing in JAMS.  Eventually G&C will dismiss the case.  This is the interesting part.  They will claim they are not going to participate in JAMS and dismiss the court case.  At this point you have several options, but you can cross that bridge when you get there.  Just remember, now that the court ordered arbitration YOU have the upper hand.  Don't let them intimidate you like you are still some peon in their game.  You flipped this into YOUR game and they must now follow YOUR lead into arbitration.

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Thank you all so much, I feel much more relieved right now! This is all very informative information, and I will get started with filing a case with JAMS immediately and see what happens. I'll report back here with the results. Hope they come back with a dismissal. So then I should not send them a copy of the MTC arbitration? Just start with the arbitration process?

Also, a side note, I have to go to court for another $1100 debt next month and planned on doing the same thing, but I was served by the wrong county in which I reside. It was from Gwinnett, but I live in Forsyth. I still plan on going, but should I mention this or does it matter?

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1 hour ago, SkyStillSunny said:

Thank you all so much, I feel much more relieved right now! This is all very informative information, and I will get started with filing a case with JAMS immediately and see what happens. I'll report back here with the results. Hope they come back with a dismissal. So then I should not send them a copy of the MTC arbitration? Just start with the arbitration process?

Also, a side note, I have to go to court for another $1100 debt next month and planned on doing the same thing, but I was served by the wrong county in which I reside. It was from Gwinnett, but I live in Forsyth. I still plan on going, but should I mention this or does it matter?

Are you saying that a JDB filed suit against you in the wrong county of residence?   Did they have the wrong address for you or what?  Did you ever live in Gwinnett?   Did you already file your answer to that one and they gave you a court date in Gwinnett?  What was listed as your Answer?  Did you mention wrong jurisdiction in your Answer?  

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2 hours ago, SkyStillSunny said:

So then I should not send them a copy of the MTC arbitration? Just start with the arbitration process?

I would start the arbitration process and send them a letter CMRR indicating I had done so with the case number and a copy of the MTC.  Send copies of both to Cooper and Greene too.

2 hours ago, SkyStillSunny said:

I was served by the wrong county in which I reside.

HUGE FDCPA violation.  Who sued you?  Both creditor and law firm.

2 hours ago, SkyStillSunny said:

I still plan on going, but should I mention this or does it matter?

It very much matters.  I am surprised Gwinnett even took the case knowing you are not a resident.  They are pretty strict on that stuff.

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The county can be strict on checking for jurisdiction and still have a bad day and mess up.

On the case in Gwinnett County, I would immediately file a motion to dismiss without prejudice due to lack of jurisdiction. In the meantime, I would inform the attorney in that you opt for arbitration and would immediately file a JAMS case before they refile in Forsyth county. That was, if they do refile, you can immediately show the judge that you already started the arb process for the MTC arb.

Follow @fisthardcheese's advice. He knows the most on how to use arb to your advantage.

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The MTC is already granted by the court.  What I would send is a copy of the SIGNED and granted MTC with your JAMS filing.

As far as the Gwinette court, I'm guessing you have not been served yet?  Do NOT talk to them or answer that one yet.  The first thing I would do is call Skaar & Feagle and talk to them.  They are attorneys who work against collectors that do dumb and illegal things like suing you in the wrong county.  They can likely make this one go away for you for free (they get their fee from the money they collect from the JDB in settlement or a lawsuit against the collector).

Who is the collector and the OC for that new case?

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Just wanted to update you that I got a dismissal without prejudice from Midland last week. Yay! Would have preferred with prejudice, but I'll take it. Everything you said, is pretty much exactly what happened. THANK YOU GUYS!

As for the new case that they filed in the wrong county... yes, I was already served and responded. My court date for the new case (in the wrong county) is tomorrow. The collector is Portfolio Recovery Associates, and the OC is Citibank N.A./Home Depot. Should I file a motion to dismiss because it's in the wrong county? Couldn't they just file a motion to transfer to a new county and set a new court date? Can I do a MTC for arbitration with this OC? I'm not sure if I should look for the agreement for citibank or Home Depot? 

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Also, in my answer to the wrong county lawsuit I just did a general denial. I did not mention wrong jurisdiction. 

When I go to court, can I just file a motion to dismiss because of wrong jurisdiction? What about the FDCPA violation? 

I'm worried because the city I live in spans 3 counties. Forsyth, Fulton, and Gwinnett. It could just have been a mistake, because most of the city is in Gwinnett, but I live on the Forsyth side.

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15 minutes ago, SkyStillSunny said:

Just wanted to update you that I got a dismissal without prejudice from Midland last week. Yay! Would have preferred with prejudice, but I'll take it. Everything you said, is pretty much exactly what happened. THANK YOU GUYS!

As for the new case that they filed in the wrong county... yes, I was already served and responded. My court date for the new case (in the wrong county) is tomorrow. The collector is Portfolio Recovery Associates, and the OC is Citibank N.A./Home Depot. Should I file a motion to dismiss because it's in the wrong county? Couldn't they just file a motion to transfer to a new county and set a new court date? Can I do a MTC for arbitration with this OC? I'm not sure if I should look for the agreement for citibank or Home Depot? 

I think @fisthardcheese is from your state, so hopefully he'll respond. 

Did you raise "improper venue" as an affirmative defense in your response?

 

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1 hour ago, SkyStillSunny said:

Also, in my answer to the wrong county lawsuit I just did a general denial. I did not mention wrong jurisdiction. 

When I go to court, can I just file a motion to dismiss because of wrong jurisdiction? What about the FDCPA violation? 

I'm worried because the city I live in spans 3 counties. Forsyth, Fulton, and Gwinnett. It could just have been a mistake, because most of the city is in Gwinnett, but I live on the Forsyth side.

Okey dokey.  You answered my question.   By not raising the defense in your answer, you might have waived the right to challenge the venue.

Read your rules to see if you're allowed to amend your answer and, if so, the time allotted for amending.

In regard to the FDCPA, do you have any relationship to the county in which the complaint was filed?  Did you ever live in that county?

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Oh no. :( I did live in that county over 14 years ago though, and not in the same city as I do now. I probably can't amend since I go to court tomorrow. I'm looking right now to see if citibank/home depot has any arbitration clause in their cc agreement.

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4 minutes ago, SkyStillSunny said:

Oh no. :( I did live in that county over 14 years ago though, and not in the same city as I do now. I probably can't amend since I go to court tomorrow. I'm looking right now to see if citibank/home depot has any arbitration clause in their cc agreement.

Did you open the account in that county?   If not, you have an FDCPA claim.

Yes, go to the CFPB credit card agreement database.  Citibank will list all their agreements which should include Home Depot.  Depending upon the date of default, your agreement might be in the archives.

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Doesn't matter if you lived there.  How did they serve you if this is in a different county?  I'm guessing it was a private process server?

Did you never call the attorney I suggested to get this taken care of long ago?  I would have had a check in hand by now from them.

Regardless, I would call the attorney NOW and ask their advice.  They may still take the case for you.   Otherwise you have to show up to court and tell the judge in person that you do not reside in this county.  Yes, he may allow them to transfer the case easily.  However, the FDCPA violation still stands for suing in the wrong county.  I would go with arbitration and then file the FDCPA violation against them in the arbitration case and use that as leverage for a better settlement (i.e. not just a simple dismissal).

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I wasn't served by a sheriff. It was a private server, because he was in plain clothes and a plain car.

Also I think I did live in Gwinnett when the account was open. I'm being sued for $1800.

Attached is the home depot CC agreement, and it looks like there is a clause in there for arbitration. So should I file a MTC arbitration for this one, AND also mention that I do not reside in this county and mention the FDCPA violation. Or just do the MTC, and file the JAMS and mention the FDCPA in the arbitration case?

I sent a message to the attorney you suggested. I'll see what they say. 

11_2017_The Home Depot Consumer Credit Card Agreement.pdf

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IF your court date is tomorrow, you need to CALL the attorney.  They need all the info immediately (like yesterday) to decide if they can help.

If you end up in court without an attorney, then you need to bring an MTC with you, but before you mention it, tell the attorney you are objecting to venue because you don't live in this county and they filed in the wrong court.  It doesn't matter at all where you lived when you opened the account.  If your driver's licenses shows your current address and that address is in another county, then you have proof that they filed in the wrong county. 

If somehow, the attorney refuses to accept the wrong county and wants to argue to the judge, then you need to bring it up to the judge at your first chance to speak to him.  They JDB attorney will likely start talking about the case and how much you owe, but just wait and then when the judge moves to you, just say that before you get into the case you must object to the venue because you do not reside in this county and the Plaintiff filed this in the wrong court and their private process server wrongly served you in another county.  If the wheels fall off on that and you get some crazy judge that forces the case to continue, then I would present the MTC and request that the case be moved to arbitration.

I would not bring up the FDCPA violations until you either get to arbitration or to the proper county court.

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Thank you!! I did call, and they said to fax over the court docs and although they won't be able to come to court to help today, that I can try to ask for a continuance while they look over my case. If the judge doesn't grant that, then I will just have to do as you suggested.

If I do object and say that this is a wrong venue, then is that just going to delay the lawsuit, and I'll have to go back to my county and start over? Would it be bad just to MTC arbitration and just try to get it dismissed just to get it over with, even if filed in the wrong county?

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Follow the order @fisthardcheese mentioned. First, try to get a continuance for the attorney to review the case. Barring that, you want to get the case moved to your county because that would be the same thing as a continuance. If you cannot get the case continued or moved, then MTC arbitration. The attorney they send will probably not know too much about your case and will not be able to argue much beyond the continuance. However, if the attorney gets a wiff that this is going to cost them money, they might eventually dismiss on their own.

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