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Background

Moved out on my own about two years back. I had assumed all of my important mail was forwarded to my new address. To my shock, after a visit to my old residence, a member of my family hands me a packet of papers informing me that I'm being sued.

This totally sucks... I'm lost and unsure of what steps I need to take to ensure I can resolve this. I've never been sued before so this a bit daunting to me.

I have been reading a few forums on here and while it has been helpful I must say the information overload is very real and overwhelming.

If anyone one has any advice on how I can proceed with putting this behind me my ears and mind are open.

Additional Information

1. Who is the named plaintiff in the suit?

- Portfolio Recovery Associates, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

- Cooling & Winters, LLC / Cooling and Winters LLC

3. How much are you being sued for?

- $1,200

4. Who is the original creditor? (if not the Plaintiff)

- Synchrony Bank / Amazon.com

5. How do you know you are being sued? (You were served, right?)

- I received papers from a family member.

6. How were you served? (Mail, In person, Notice on door)

- A family member was served and I received the papers from them.

7. Was the service legal as required by your state?

- Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

- None, as far as I know, I had no idea who they were until I did a little bit of googling (more information below)

9. What state and county do you live in?

- Georgia, Habersham County

10. When is the last time you paid for this account? (looking to establish if you are outside of the statute of limitations)

-  2012-2014

11. When did you open the account (looking to establish what card agreement may be applicable)?

- 04/ 11 /2012

12. What is the SOL on the debt?

- 6 years

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

- I was unable to find my case online but it says Suit on Account on paper. I've attached scans of the papers I received below blanking out personal information.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

- No I have not disputed the debt with the credit bureaus both the original and current collectors.

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

- No I have not requested debt validation.

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

- I was given 30 days to respond. I’m unsure if it’s from the 21st of March or the 23rd. I will include a scanned copy of the paperwork that I received but I’m going to assume the 21st since to be on the safe side.  

Also, there is an affidavit dated much earlier on the 9th of March would that actually be the deadline? If so I’m totally screwed…

I am unsure if I received an interrogatory. What would that be?

The “Charges” are: The Plaintiff says the defendant is indebted to the plaintiff as follows: Default on Account.

That said claim is in the amount of: SEE ATTACHED COMPLAINT ( Complaint )

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

- The Evidence I was sent are as listed:

- An Affidavit

- A Statement of Claim

Exhibit 1 A Statement from 11/15/2012.

Exhibit 2 A Statement from 05/15/2012.

Exhibit 3 The Credit Card Agreement.

Exhibit 4 A Bill of Sale between Synchrony and PRA.

- And for Reference the first page out of all the others in the packet with the serving date being 03/21/2018 0r 03/23/2018, but I'm going to assume the 21st. ( Serving )

 

My Questions

1. What actions should I begin to take? I have not filed an answer in fear that I may end up doing something wrong that is irreversible.

2. Please, If you anyone can point me to other threads with a similar situation as mine that can give me some kind of guideline on how I should go about this I'd greatly appreciate.

3. Would it be best for me to just go ahead and pay this off if I currently have the money or would I be better off fighting the case?

4. Is this just a hopeless effort in a losing battle? I'm totally drained. I really am kinda lost right now. If anyone's got any actionable advice I'm all ears. 

Thank you for taking a look. 

If any more information is needed on my side to help in understanding my situation please let me know. I work the graveyard shift but will do my best to respond as promptly as possible. Once again thanks for taking a look.

 

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The credit card agreement is a gift to you, because it contains an arbitration clause with JAMS.  Arbitration is the best way to beat this.

Also, since the papers were sent to your old residence, and you are not living there, are they suing you in the correct court?    If they aren't, then I would file a motion to dismiss for lack of jurisdiction.  And also consult a consumer attorney regarding the FDCPA violation of suing you in the wrong court.

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They are suing in the correct court. I moved not too far away from home and live in the same county so unfortunately filing a motion to dismiss for lack of jurisdiction is not an option. 

Arbitration seems like the best route vs going ahead and just paying for the debt. What I'm unsure of is how long the process would take to get done otherwise.

If I chose to go with Arbitration should I go ahead a file a deny of all claims from the plaintiff? I want to make sure so that if I do go that route I don't make any irreversible mistakes.   

Thanks for taking the time to look and respond.

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The Statement of Claim says you have 30-days from the date of service to respond.  Do you know the particular date on which it was served?

I don't know what the rules are in Georgia.  You can do a Google search for Georgia Rules of Civil Procedure.

If it's allowed, you may want to answer the Complaint with a general denial and include Lack of Subject Matter Jurisdiction as an affirmative defense.  In doing so, you can argue an arbitration clause exists between the parties that does not give the court jurisdiction because the matter should be resolved in arbitration.

On the pages that follow the Bill of Sale, is the account number and the rest of the information correct?

I'm currently in arbitration and have found it to be a very long, drawn-out process.  If you can get the court to direct this matter to arbitration, this may be the leverage you need to settle with Portfolio Recovery.  A 50% offer of $600.00 should be enough if they don't want to follow you into arbitration.  They'd only be leaving $600.00 on the table.

Your JAMS filing fee will probably be $250.00, so settling for $600.00 may be worth it to put this all behind you.  If they've placed a collection on your credit reports, you may also be able to negotiate the removal of this information, too. 

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2 hours ago, LaneBlane said:

The Statement of Claim says you have 30-days from the date of service to respond.  Do you know the particular date on which it was served?

 

- I was not served in person a family member of mine was. I'm going to assume it was on the 21st just to be on the safe side but there are two dates listed on the first page of the packet that I've included in the post.

2 hours ago, LaneBlane said:

On the pages that follow the Bill of Sale, is the account number and the rest of the information correct?

 

- The pages following the Bill of Sale lists my name and address along with the amount owed and accrued interest.  Other than that, everything else I'm not 100% sure. 

The listed account number are all the same with the other exhibits,  but the thing is it only lists the last four digits of the account number and the first 6 or 7 numbers are blanked out similar to the other exhibits referring to the account number as ******* or just as a blank black box. 

Why not list the full account number? Are they withholding that information for when I fight back the case as proof that they did buy the debt? 

2 hours ago, LaneBlane said:

Your JAMS filing fee will probably be $250.00, so settling for $600.00 may be worth it to put this all behind you.  If they've placed a collection on your credit reports, you may also be able to negotiate the removal of this information, too. 

 

- So filing for JAMS and paying for half of the debt would be the best option?

Thank for taking the time to help.

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4 hours ago, ahauntingpast0323 said:

Why not list the full account number? Are they withholding that information for when I fight back the case as proof that they did buy the debt? 

No it is required to be redacted.  Nothing nefarious about it.

@LaneBlane is basing their answers to you off their case in another state and the terms of their agreement are VERY different. It does not apply to your case or to how things are done in GA.  Here is what you need to know about this suit:

You are being sued in Magistrate Court.  They have preprinted answer forms that you merely check of denied.  For a reason put down jurisdicition:  Defendant elects private arbitration in JAMS per the terms of the card agreement belong to the account listed in the complaint.  File that with the court.  They will contact you and the Plaintiff with a trial date that is typically within the next 4-6 weeks.

Search the forum for threads on arbitration and GA.  There are several examples of motion to compel arbitration.  Type on up using the facts listed in your complaint and make 2 copies.  DO NOT file it with the court in advance.  GA does not do separate hearings on motions.  EVERYTHING is done on your trial date..  Bring the copies with you to the trial.  The attorney will approach you prior or the judge will send you to the hallway to try and solve it.  You stand FIRM you want arbitration.  You need to know that several consumers have defeated this firm in Magistrate Courts in GA and the firm will be prepared to argue against .  Your fees are capped at $250 because you are in consumer arbitration.  (LaneBlane is not and therefore has to pay half.  you do NOT)  If the firm argues it is too expensive that is not your problem.  The card agreement gives you that option and they are bound by the terms in full if they really did buy the account and therefore have standing.  They cannot pick and choose.  More than likely you will have to argue your case to the Judge because Cooling has been down this road before.  Just be calm.  Keep any answers short, direct and to the point.  DO NOT elaborate.  You should get the motion approved.  To really make it solid I would go ahead and open the JAMS case 3 days before trial.  You do not have to pay the fee when you do that.  Bring the copy of the JAMS case with you to show the Judge this is your preference.  If the motion is denied you don't have to pay the fee and JAMS will close the case.

The goal is NOT to arbitrate.  If this works PRA knows how expensive it is to go through JAMS and simply drops it.  They ask what you want to settle:  dismissal WITH prejudice and deletion of their trade line. Each side pays their own costs meaning they eat the filing and attorney fees and you simply walk away.  

As a back up plan since Cooling has seen this before read the threads on how trial works in Magistrate Court in GEORGIA.  If the motion is denied the case will be heard immediately.

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I was under the impression they were looking for a fast resolution and didn't want this drawn out.  I also mentioned the $250 cap... something I only wish applied in my case.

If your MTC Arbitration is granted, I can't see PRA following you into JAMS on a $1,200 debt.

If PRA approaches you to reach a settlement, and you're currently able to pay off the entire debt, there's a good chance they'll accept a 50% offer of $600 for a dismissal with prejudice and removal from the trade line.  A 25% offer of $300 may get you the same result.  They can always counter.   Another option is to offer no money and see what happens.  They may just want to be done with you and move on.

As Clydesmom said, this is all done before you need to worry about paying a $250 filing fee to JAMS. 

JAMS Demand for Arbitration Form may be downloaded and printed here: https://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf    According to the instructions, when you send copies to JAMS you need to provide proof of service to the other party.  (This is what I did.)  Clydesmom may know if you can skirt the rules for the purpose of being able to show the court you've filed.

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3 hours ago, LaneBlane said:

I was under the impression they were looking for a fast resolution and didn't want this drawn out. 

In California this WOULD be drawn out.  In the bigger counties there it can take up to 3 years to conclude a small claims case.  Not in GA. Takes less than 2 months from being served.  

3 hours ago, LaneBlane said:

If PRA approaches you to reach a settlement, and you're currently able to pay off the entire debt, there's a good chance they'll accept a 50% offer of $600 for a dismissal with prejudice and removal from the trade line.  A 25% offer of $300 may get you the same result.  They can always counter.   Another option is to offer no money and see what happens.  They may just want to be done with you and move on.

Chances they will agree to deletion under this scenario are zero.  Chances they will agree once ordered to arbitrate at great expense almost 90%. You need leverage to get that stipulation and settling is not enough.  They have a hard line stance against deletion.  They will do it to avoid explaining to the court why they didn't comply with the order to arbitrate.

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12 minutes ago, Clydesmom said:

Chances they will agree to deletion under this scenario are zero.  Chances they will agree once ordered to arbitrate at great expense almost 90%. You need leverage to get that stipulation and settling is not enough.  They have a hard line stance against deletion.  They will do it to avoid explaining to the court why they didn't comply with the order to arbitrate.

Under this scenario, I can see why PRA would want to do what they could to simply walk away from this... with their tail between their legs.

 

 

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1.  Always file an answer denying all allegations when in Magistrate Court.

2.  PRA does not arbitrate.

3. There will be no need to file anything ahead of time, since GA Magistrate Courts work different than all other courts you will read about on this board.

4. Prepare an MTC to bring to court with you on your hearing date.  The attorney will ask to meet with you in the hall before going in front of the judge to attempt to settle with you.  This is the time I would present the MTC to them and let them know you will be asking for arbitration per the card agreement.

5. JAMS arbitration will cost you $0 thanks to the nice Synchrony Card Agreement.  Depending on how court goes you may need to file the case in JAMS, but PRA will never respond to it and eventually drop the court case.

The link in my signature has all of the arbitration info including a sample MTC.  You will also find several GA cases if you click on my name and browse my previous posts.

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Hey all,

- Been gone for a bit doing some reading on this site and trying to gain a bit more knowledge of the situation that I'm in.

- I filed my answers this past Monday (23rd of April) and am currently waiting on the mail that'll notify me of my hearing date.

On my answer, I denied all claims with the exception of the first one which listed my address and the county I'm eligible to be served in. 

I have a question about the answer that I filed.

By denying all claims other than the first one, does my option to Motion to Compel get thrown out due to denying the debt in the first place or is that path still a viable one for me to go down?

Since I denied ever owing to the debt does the card agreement become void? Which in return nulls the arbitration clause in the card agreement?

If so I'm screwed... 

 

- Also, having read fisthardcheese's post about arbitration I couldn't help but notice that it was advised to mention in the answer that I was going to go the route of arbitration by stating  

Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”.  under (Affirmative Defense)

But I did not do so, seeing as I did not want to misword anything and be left further in the rabbit's hole.

 

- At this point, I am still gathering more information and going to write my MTC in the event that that path is still viable. If not, then I guess I'm gonna have to face the cold hard feeling of paying out of pocket to these JDB's.

Will providing the original cardholder's agreement help in giving proof that this debt was owed to the Original creditor, not the new buyers?

I found the original agreement for 2012. Thing is, it's not listed as Synchrony Bank/Amazon but as GE Capital and both are similar especially in regards to the Arbitration clause. This is confusing. I have the copy of the card agreement listed below for reference:

-   2012 Q1 GE Capital Amazon

If you take a look at Exhibit 3 - The Credit Card Agreement that was attached to my first post, it clearly is an Amazon card but it's under Synchrony.

What gives? Does this work in my favor?

 

-When my MTC is done. My plan is to take 3 copies with me to the hearing and give one to the judge and one the JDB. 

I'll use my MTC as a means to take the case outside of the court due to the Arbitration clause in the original card agreement document.  Is this the correct way to do it?

What happens if my MTC gets denied?  Will I end up in further trouble?

One last note. Is it a motion to compel or motion to compel arbitration? Or are these two terms the same thing?

 

- Thanks for taking the time to look and any help or advice is greatly appreciated you've all been a great help and a pool of knowledge making this process less stressful (still stressful though hehe).

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4 hours ago, ahauntingpast0323 said:

Since I denied ever owing to the debt does the card agreement become void? Which in return nulls the arbitration clause in the card agreement?

No.  Denying all allegations is a proper response to a lawsuit.  Answers can always change through the court of a case as evidence is found and discovery is made.  Also, this is Magistrate, which does not operate like a real court anyway.

4 hours ago, ahauntingpast0323 said:

Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”.  under (Affirmative Defense)

But I did not do so, seeing as I did not want to misword anything and be left further in the rabbit's hole.

Luckily you are in GA Magistrate, where none of this matters.

4 hours ago, ahauntingpast0323 said:

Will providing the original cardholder's agreement help in giving proof that this debt was owed to the Original creditor, not the new buyers?

You MUST bring copies of the card agreement to court with you as evidence. Otherwise you have no arbitration agreement to enforce.  You need to have the instrument that allows for arbitration to give the court the authority to order the arbitration you are asking for.

4 hours ago, ahauntingpast0323 said:

I found the original agreement for 2012. Thing is, it's not listed as Synchrony Bank/Amazon but as GE Capital and both are similar especially in regards to the Arbitration clause.

Synchrony bought out GE accounts.  The arbitration clauses remained almost completely identical. The correct card agreement would be from the time-frame where you missed your first payment and the account went into default (also known as the same day you started the clock on the SOL).

 

4 hours ago, ahauntingpast0323 said:

I'll use my MTC as a means to take the case outside of the court due to the Arbitration clause in the original card agreement document.  Is this the correct way to do it?

What happens if my MTC gets denied?  Will I end up in further trouble?

One last note. Is it a motion to compel or motion to compel arbitration? Or are these two terms the same thing?

You need to try to find GA cases to read about here.  They work different than other courts.  I have written about them a lot in my previous posts.  The attorney for the JDB will meet with you in the Hall of Lies where they will attempt to intimidate and frighten you into settling or entering a payment agreement with them. This is the time you present a copy of the MTC to them and let them know you intend to ask the judge for arbitration per the card agreement.  The attorney will respond to this with lies and will probably up the intimidation tactics. They will say it will cost you a ton, or that you didn't do something right, or ask if you filed in JAMS yet.  None of that matters, only that the judge says you should start arbitration.  When you don't agree to settle in the hall, they will go back to the judge and you just repeat your request for arbitration and hand the judge a copy of your MTC.

The MTC should not be denied based on well established GA law and Supreme Court rulings.  However, should that happen, you will just need to appeal your case up to the "real court".

A Motion to Compel is just a motion asking the court to order one or both parties in a case to take an action.  In your case, you are asking the court to compel the parties to go to arbitration.  Other MTC's could ask the court to force a party to answer a question or provide certain evidence to the other side, etc. I like using the full title "Motion to Compel Arbitration" so it is clear what I am asking right off the top of the page, although just "Motion to Compel" is what you will see on most filings in other cases.

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- You all have been of tremendous help.

Thank you all so much seriously!

 

- I'm still waiting for my hearing date but until then I have a draft of my Motion to Compel to Arbitration and would like for anyone and all to review it. 

I'm open to constructive criticism on the draft and willing to make changes if it makes an improvement. 

 

 - Considering my Original Cardholder's Agreement. The first time I missed a payment and the card went into default was of 2012 and the agreement is still under GE Capital. So why have the JDE used a Exhibit 3 (Synchrony Cardholders Agreement) as an example?

Will this confuse the judge and mess up the case?

Will the JDE say that I'm providing false information in conjunction with what was exhibited in their claims forms?

 

Thanks for taking the time to look. Really appreciate everyone who as contributed.

 

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Even better if the JDB has provided a card agreement as part of their lawsuit.  Use that card agreement.  This usually doesn't happen, so that is why it's automatic for us to say find the proper card agreement.  In your case, THEY are already saying this is the correct agreement, so I would just go with it and save all arguments over it.  Since you are using their submitted agreement, I would change the following paragraph in your MTC:

2. The Defendant moves this court to compel binding Private Contractual Arbitration based on the terms and conditions of the original Credit Card Agreement  (see Exhibit A Plaintiff's Exhibit 3).

I would eliminate subsection c in paragraph #3 as cost is completely irrelevant and not an issue for the court. That is between the JDB and JAMS.

I would eliminate #6 and change it to a proper prayer for relief. "WHEREFORE, Defendant prays this honorable court grant this Motion to Compel and order the parties to arbitration this matter according to the governing contract and to dismiss, or in the alternative, stay this proceeding".

Paragraph 7 is not part of an MTC.  That would be for an affidavit, which is a seperate document, but it is one I would consider not necessary since there is no dispute that they submitted a card agreement as evidence which contains a valid arbitration agreement.

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17 minutes ago, fisthardcheese said:

Even better if the JDB has provided a card agreement as part of their lawsuit.  Use that card agreement.  This usually doesn't happen, so that is why it's automatic for us to say find the proper card agreement.  In your case, THEY are already saying this is the correct agreement, so I would just go with it and save all arguments over it.  Since you are using their submitted agreement, I would change the following paragraph in your MTC:

 

- So even If I denied all claims the Cardholder Agreement that the JDB is still valid to use?

17 minutes ago, fisthardcheese said:

Paragraph 7 is not part of an MTC.  That would be for an affidavit, which is a seperate document, but it is one I would consider not necessary since there is no dispute that they submitted a card agreement as evidence which contains a valid arbitration agreement.

1

- So just to make sure. I'm not going to need an affidavit because I've omitted my Cardholder's Agreement and will be using the JDE's as my evidence?

Thanks for the quick reply @fisthardcheese

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1 hour ago, ahauntingpast0323 said:

So even If I denied all claims the Cardholder Agreement that the JDB is still valid to use?

You said:

2 hours ago, ahauntingpast0323 said:

Considering my Original Cardholder's Agreement. The first time I missed a payment and the card went into default was of 2012 and the agreement is still under GE Capital. So why have the JDE used a Exhibit 3 (Synchrony Cardholders Agreement) as an example?

Here's one way to think about this: When you submitted your answer, you believed the subject account is a GE Capital. PRA claims it's Synchrony. I am not a lawyer, but this dispute falls into the "any dispute or claim" category. If one or both agreements contain an arbitration section, you're entitled to invoke your right under it to arb. You are not required to argue the merits of the dispute to the judge in order to demand the dispute be arbitrated under the terms of the agreement.  The JDB providing a copy of the agreement is a lucky break for you as PRA has saved you from extra work and a potential argument. Now you can assert if needed:, "the agreement provided by Plaintiff establishes conclusively that it relies on a contract that subjects the claims asserted in this lawsuit to mandatory arbitration, upon election of either party." 

"• What claims are subject to arbitration

1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account, except as noted below."

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2 hours ago, ahauntingpast0323 said:

- So even If I denied all claims the Cardholder Agreement that the JDB is still valid to use?

Denying all claims is just a formality to get a hearing. At the hearing, and after being presented evidence, you are free to change your answer.  In this case, you are agreeing that the card agreement they presented is a valid agreement that you may have been a party to at some point. This makes the arbitration clause therein valid and enforceable.  It in no way means that you owe any money or that PRA proved they hold the rights to collect any alleged debt.

 

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Hi

Just got back from my hearing and have some grim news. 

The judge ruled in favor of the Plaintiff and now I have to pay in full along with " future interest at the rate allowed by law, and future cost along with court cost"

I followed the advice given her by everyone who posted and am thankful that I was at least able to put up a semblance of a fight.

I'll go through step by step as followed:

- I met with the JDB and told her that I'm going to go with arbitration and handed her my MTC.

- We go through roll call and I present my case to the judge. I give him my MTC and state I have no clue who PRA is and that I would like to exercise my right through the card agreement's arbitration clause.

- The Plaintiff reiterates her case that the debt is valid and all of the rights have been transferred to PRA .

- The judge allows for us to settle once more outside of the court this time through a mediator. 

- I stick to my guns and say I would like to go the route of arbitration.

- We head back into the courtroom and the Judge tells me that he has denied my  MTC in favor of the Plaintiff.

- I'm at a lost for words. 

- He asks if I have anymore words and I reply " I still do not believe that I have been provided sufficient evidence that I owe any debt to PRA and would kindly ask for you to take another look at my MTC".

- He replies "Well, I've denied your MTC" and goes on to ask me if I was aware of how debt gets bought. I reply that I was not aware that debt could be transferred. He then asks if I knew what arbitration was and I replied "yes".

- After a few minutes, he finalizes the case and dismisses us.

 

Now I have to pay up and I believe that my wages will now be garnished upwards of 25% along with the court fees.

This really sucks...

If anyone can learn from this or have questions to see where I may have gone wrong please feel free to ask me. I don't want anyone to go through what I went through today and hope that maybe these posts can help anyone who is going to be going through this hellhole of a process.

Once again thanks to everyone who provided advice. Even though it did not end up the way I wanted. 

 

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If this were me, I would file an appeal right away.  I forget how long you have, but it is not that long (maybe 15 days but don't quote me).  The judge was absolutely incorrect to deny your MTC and he ruled against what many other superior GA courts and the Supreme Court of the USA have said.    In addition, you need no actual reason (although you have a very good reason) to appeal from Magistrate Court - as even the state recognizes that Magistrate Court is a dog and pony show at best.

When you appeal, the case is moved up to State Court. Once I have a  case number for the State Court case, I would file my MTC in state court and send a copy to the attorney again.

@NormInGeorgia I think may have done an appeal before and might have more details on the process.

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2 hours ago, ahauntingpast0323 said:

If anyone can learn from this or have questions to see where I may have gone wrong please feel free to ask me.

I'm so sorry for you. Listen to the sound advice of @fisthardcheese for an appeal. Did the attorney present any argument against the arbitration? 

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@ahauntingpast0323

You have 30 days to file your appeal. You are appealing to the STATE COURT.  The case will start over in the State court as if it had never happened at all in Magistrate court.

CALL the Magistrate clerk immediately and tell them you need to appeal a Magistrate judgement.  Ask them specifically how much is the appeal filing FEE and if you need to bring the appeal fee with you when you bring the appeal form or when the State Court creates the new case number.  

I think a NEW case in State Court costs $215 in my county but I have no idea if the same fee applies for appeals or how much the fee is in Habersham since it's a smaller county.  Their website contains no information at all about it as far as I can see.  Please let us know the cost.

 

Attached is the generic form for filing the appeal of your case to your county's State Court.

Fill in the blanks with "Habersham County" and all the other details from your original Magistrate case.

You can hand-write all the fill-in the blanks.

Do not fill in the DATE FILED, let the clerk do that or let the clerk tell you to. 

Fill in the Magistrate case number and the full name, address, and phone number for both the Plaintiff and Defendant sections.
Check the boxes that say DEFENDANT is appealing to the STATE COURT.
Check the box for CIVIL CASES and put in the date of the judgement.
IGNORE THE ENTIRE PARAGRAPH ABOUT DISPOSESSORY CASES.

Do not date and sign the document until you are standing in front of the Magistrate clerk.
You will date/sign the bottom of the form twice.  The second time is the CERTIFICATE OF SERVICE section.


Have 3 copies of the form with you and take them to the Magistrate Court clerk.  Sign and date all copies in front of the clerk.  Give them to the clerk to be stamped.  The clerk will keep one and you keep two.  After it is stamped you MUST mail one of the copies to Cooling and Winters the same day, so have an envelepe addressed and stamped and ready to go. 

When you are there with the clerk, ask the clerk what happens next and how long it will take.  I assume that the Magistrate Clerk notifies the State Court clerk and that the State Court creates a case number for it.  I have never personally done a Magistrate Court to State Court appeal so I do not know the timing but the clerks at the Magistrate or the State court will be able to tell you what to expect next.  

After the State Court case number has been created, you should immediately file your Motion to Compel Arbitration with the State Court clerk.   I would suggest posting a redacted version here again just to have some other eyes check it one more time before you file it with State Court.


The State Court judge should grant your motion.  If the plaintiff presented a card agreement with an Arbitration clause and you presented a valid MTC then the Magistrate judge had no legal basis for denying your motion.  Private Arbitration Agreements are legally binding and are outside the jurisdiction of the court.  


When the State Court judge grants your motion, you need to immediately speak up and specifically ask the judge to refund the cost of filing the appeal.  I don't know if there is a legal precedent for it but it's the right thing for the judge to do. 
 

 

mag-12-01-notice-of-appealR.pdf

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14 hours ago, NormInGeorgia said:

When the State Court judge grants your motion, you need to immediately speak up and specifically ask the judge to refund the cost of filing the appeal.  I don't know if there is a legal precedent for it but it's the right thing for the judge to do. 

I would believe the proper time to address costs is only during a settlement or at the conclusion of a court case (i.e. dismissal).  I don't think a judge would grant costs just for granting a motion, especially if they are staying the case. If this were me, I would just add the costs of filing an appeal to my settlement negotiations after my MTC is granted.  We know PRA doesn't want to arbitrate, so when they ask to settle, instead of just a walk away, my agreement to drop the arbitration issue just went up to whatever dollar amount I spent on appeal plus dismissal with prejudice.

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2 hours ago, fisthardcheese said:

I would believe the proper time to address costs is only during a settlement or at the conclusion of a court case (i.e. dismissal).  I don't think a judge would grant costs just for granting a motion, especially if they are staying the case. If this were me, I would just add the costs of filing an appeal to my settlement negotiations after my MTC is granted.  We know PRA doesn't want to arbitrate, so when they ask to settle, instead of just a walk away, my agreement to drop the arbitration issue just went up to whatever dollar amount I spent on appeal plus dismissal with prejudice.

That sounds like a good plan to me.

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3 hours ago, wolfshaker said:

How the heck did the judge deny the motion, that is crazy!

Because Georgia Magistrate judges have the power to do practically anything they wish for any reason they wish.  Appeal of a Magistrate judgement is heard "de novo" in a higher court as if the original case never existed. 

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