WomanofWonder

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Hey everyone. I wanted to thank you all for helping me "win" a recent suit filed against me by Portfolio Recovery. With the help of this forum (lurking, haha), I managed to get it dismissed. Without prejudice, mind you, but I'll take what I can get (it wasn't a large amount & I was opting for the arbitration route).

NOW I really need some advice for a lawsuit that's been pending since 2015. In fact, I had no idea it was still open until today (after going to the courthouse & checking on the dismissal of my current case).

Discover Bank either hired a lawyer (or sold the debt to a law firm collection agency, I'm unsure). This total balance is much higher, much more worrisome. This suit was filed in 2015. I filed an answer, & consulted with a debt defense lawyer who told me that my case was dismissed because she didn't see it on the docket. WELL SHE WAS WRONG.

It's been open, is still open, & the lawyer filed a Motion for Summary Judgement along with a Theory of Discovery. This was in December of 2015. There's been no movement since then.

I've gotten no sort of communication about any hearings, I've had the same address for 20+ years, so this is throwing me through a loop.

In addition to all of that, the lawyer who was suing me is no longer in business. He's sold his firm to another, & they don't even have the same phone number / address. They essentially dropped from the face of the planet (or are operating under a whole new name).

Do I file a Motion to Dismiss, or let sleeping dogs lie? I don't want a judgement to come back & bite me in the butt later. I feel that I haven't had any adequate communication from this lawyer, & that alone should be a basis for dismissal. Coupled with the fact that there's no feasible way to contact the original law office that decided to sue me. Your thoughts / suggestions would be much appreciated!

- - -

1. Who is the named plaintiff in the suit? Discover Bank.

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

3. How much are you being sued for? $3k+

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

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

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

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? I remember requesting validation & they sent me a packet of past statements. That's it.

9. What state and county do you live in? Georgia.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) April of 2014.

11. What is the SOL on the debt?  It's either 4 or 6 years--probably 6, but if I can argue 4, I will. 😕

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

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Yes.

15. 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 answered within the 30-day time frame.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. I have to dig through my papers to find this, ugh. 

- - -

Help please & thanks ! 

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48 minutes ago, WomanofWonder said:

Additional notes: There has been no activity in this case since December of 2015.

§ 9-2-60. Dismissal for want of prosecution; costs; recommencement within six months

(a)  For the purposes of this Code section, an order of continuance will be deemed an order and the word "proceedings" shall be held to include, but shall not be limited to, an appeal from an award of assessors or a special master in a condemnation proceeding.

(b)  Any action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.

(c)  When an action is dismissed under this Code section, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.

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20 minutes ago, BV80 said:

§ 9-2-60. Dismissal for want of prosecution; costs; recommencement within six months

(a)  For the purposes of this Code section, an order of continuance will be deemed an order and the word "proceedings" shall be held to include, but shall not be limited to, an appeal from an award of assessors or a special master in a condemnation proceeding.

(b)  Any action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.

(c)  When an action is dismissed under this Code section, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.

Thanks for the statute-- I was searching for something like that. Hoping someone can weigh in & help me decide which route to go, though. There's risk both ways, I know. If I wait for this particular code, it'll be another two years of hoping no one finds my case & pushes for judgement. On the other hand, I can go for a Motion to Dismiss & hope it's granted. Sticky either way.

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You are going to have to find the current lawyer who has the case so that you can serve them with your motion. Otherwise, you will be required to perform alternative service with the judges permission (which means paying for the motion to be printed in the newspaper). That might let the new law firm know that they missed something and could restart the lack of prosecution clock.

Honestly, you may just want to lay low for the next actually 3 years because they have 6 months after the case is dismissed to recommence the case. Who knows, the new law firm may go out of business and the court will not know where to send service to the plaintiff so they might not be tipped off at all if you wait. Plus, I am sure the SOL clock will run out if you wait unless Discover immediately sued you once you defaulted.

I am kinda shocked that Discover has allowed this to happen. Usually they are an OC who is on top of these things and aggressive when it comes to collections. Goes to show that things get lost in a computer once in a while.

I think the best thing to do is wait for the plaintiff to make a move. Keep a watch on the case so that you are immediately alerted if something is happening (you only need to check once/day Tuesday - Saturday and not the day after a holiday). I would also start to put together some money in case someone finally realizes that there is this case rotting and stinking the place up. That way, you can offer a settlement if things get started.

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12 hours ago, WhoCares1000 said:

.

Eeeeek, okay--this makes a lot of sense. I'd rather not tip them off. I'm hoping that I am actually "lost" in all of the shuffle. The SOL will run out April of 2020. If I do make it that far, could I use that as an excuse to cease all action should they figure out that they've missed me? Or would it not count because technically the action was filed prior to the SOL running out?

Discover is hella aggressive. It's just dumb luck, I'm sure. I hope I have dumb luck for the next three years, though!

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I wouldn't make a sound on this. I'm almost positive this has fallen though through the cracks, and there's a very good chance this will go undetected. When the court dismisses for want of prosecution, they will send the notice to the attorney of record. The court isn't going to track down the current attorney, so it's unlikely Discover will ever find out. The trick then is waiting for the collection SOL to expire. In most jurisdictions, the SOL is tolled (paused) while a court action is pending,  so unless the court dismisses with prejudice, there's a very good chance the SOL will be extended for however long the case sat in court. You can ask the court to dismiss with prejudice, but then you may be ringing Discover's dinner bell if the court will dismiss only without prejudice. 

So I would just lay low. 

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The SOL for collection in GA is 4 years. Therefore, if the OP lays low and lets the 5 year prosecution clock run out and the case is dismissed, Discover will not be able to collect. True that the SOL is tolled but a dismissal sets the clock back to the original default date. That is another good reason to lay low.

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59 minutes ago, WhoCares1000 said:

The SOL for collection in GA is 4 years. Therefore, if the OP lays low and lets the 5 year prosecution clock run out and the case is dismissed, Discover will not be able to collect. True that the SOL is tolled but a dismissal sets the clock back to the original default date. That is another good reason to lay low.

We find that the result in this matter is governed by our recent decision in Hill v. American Express.  In Hill, we held that the six-year statute of limitation for contracts applied to an action to recover unpaid credit card charges, even when the defendant's acceptance of the contract consisted of use of the credit card rather than signing the contract.  Phoenix Recovery Group v. Mehta, 291 Ga. App. 874, 875, 663 S.E.2d 290 (2008).

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3 hours ago, WhoCares1000 said:

True that the SOL is tolled but a dismissal sets the clock back to the original default date.

I know this is the case on a dismissal with prejudice, but not always the case for without prejudice. It depends on how GA courts have ruled in the past. 

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5 hours ago, WhoCares1000 said:

True that the SOL is tolled but a dismissal sets the clock back to the original default date.

GA has a saving statute.  A voluntary dismissal allows a plaintiff to refile within 6 months of the dismissal even if the SOL has expired. 

§ 9-2-60. Dismissal for want of prosecution; costs; recommencement within six months

(a)  For the purposes of this Code section, an order of continuance will be deemed an order and the word "proceedings" shall be held to include, but shall not be limited to, an appeal from an award of assessors or a special master in a condemnation proceeding.

(b)  Any action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff.

(c)  When an action is dismissed under this Code section, if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.

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Wow, it really sucks to be in Georgia., that would be 3 years and 6 months. If the 6 year limit applies then the next question is if they sued immediately after default (which never happens) or waited a year or more before suing (which more likely happens). I honestly think that by mid-2021 at the latest, the SOL would run out if the OP simply leaves things alone.

Also, knowing how aggressive Discovery is, it seems real strange that without something happening, they would allow a case like this to sit for almost 3 years already. I really think that this one slipped through the cracks when the initial law firm went out of business. A question to the OP would be if the original law firm is still listed on the case as the attorney of record. If so, then I would really let sleeping dogs lie because the court will notify the attorney of record and that will come back as undeliverable. which at that point, no one other than the OP will know that the case was dismissed for lack of prosecution.

Regardless though, the OP should try to set aside $2000 - $2500 if they can just in case this comes back so that they can do a quick settlement. This way, they have all angles covered regardless of what happens.

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On 8/16/2018 at 7:01 PM, Debtguy393939 said:

Was it Frederick j Hannah? I know they basically are cooling and winter now. That’s my guess. 

It isn't, but Cooling & Winter are the ones who voluntarily dismissed my case (the one I thanked the forum about for valuable info). A tiny win for me, but the amount wasn't big enough for them to care, I think.

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3 hours ago, WhoCares1000 said:

Wow, it really sucks to be in Georgia., that would be 3 years and 6 months. If the 6 year limit applies then the next question is if they sued immediately after default (which never happens) or waited a year or more before suing (which more likely happens). I honestly think that by mid-2021 at the latest, the SOL would run out if the OP simply leaves things alone.

Also, knowing how aggressive Discovery is, it seems real strange that without something happening, they would allow a case like this to sit for almost 3 years already. I really think that this one slipped through the cracks when the initial law firm went out of business. A question to the OP would be if the original law firm is still listed on the case as the attorney of record. If so, then I would really let sleeping dogs lie because the court will notify the attorney of record and that will come back as undeliverable. which at that point, no one other than the OP will know that the case was dismissed for lack of prosecution.

Regardless though, the OP should try to set aside $2000 - $2500 if they can just in case this comes back so that they can do a quick settlement. This way, they have all angles covered regardless of what happens.

Georgia sucks a lot. In so many ways. 

I swear, if I knew I would go through this much annoyance I would have never taken out credit in college. Granted, I could have been more responsible--but I feel like I've really shown my current creditors that I'm so different now. When it seems like I get ahead a bit this "ghost" debt comes back to haunt me. But anyhoos.

I'm spooked someone's gonna catch it, but as of right now, the defunct attorney is still assigned to my case. A search of his name lists him as having "emeritus" status...so he's retired now, probably?

I'm def laying low. lol. No need to stir up any trouble if I don't have to. I can barely scrape up money for basic needs, so I'll just have to deal with it if it does happen to revive itself.

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Y'all, I just found this definition on the GA Bar website. I think I'm okay as long as they don't give the case a new attorney. omg.

Emeritus Member 
Member who is not practicing law, is age 70 or greater, has practiced 25 years or more, has same privileges as an inactive member***, however, annual fee is waived. (This status does not permit the member to practice law in Georgia.)

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If you cannot currently put funds together, then you cannot do it. I would however look for a way to do so as soon as possible. The problem is that you still have about 3 years to go with all the end periods for someone to find the file and realize that this is happening. That is a pretty long time and anything can happen in that time period. If you have something set aside when they do come up, you might be able to make them go away rather than continue to fight and possible have to explain to the judge why the long delay. It looks like right now that the case has gotten lost in the shuffle of change to a new law firm/attorney. That can happen but in the age of computers, it is very rare. In fact, Discover may even start looking into things and find out what happened and put a bug into the new law firm.

So, don't poke the hornets nest but know that the hornets may find out you are there and start to attack so be ready for it.

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I appreciate all of the input given! I'm not too worried, but if push comes to shove I'll fight it as much as I can. If anything, the case can't possibly proceed without someone telling me why I never got notice of a hearing if there was one. I'll brainstorm some possible ways to fight if need be, & update this thread if the case is brought back to life.

Thanks again, y'all.

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You have a very serious situation. I think you need a very experienced and qualified lawyer to solve the problem. It is very difficult to find a really good lawyer who can sort out the problem and turn the situation in your favor. My friend and I recently looked for such a lawyer. My friend's father got mesothelioma at work due to non-compliance with protection rules. We found the contacts of a good mesothelioma lawyers and are now filing a lawsuit against the employer. I think he should answer for his negligence. Usually in such cases, there is every chance to win the court and get compensation for this. I will fight until the end next to my friend

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Hey y'all, I'm back!

Some updates on this case (maybe not so good, lol).

So about 5 months ago the attorneys who bought the old firm checked my credit report. This worried me, but I didn't do anything.

Then, Discover themselves checked my credit report about a week ago. I panicked, not gonna lie.

So instead of waiting to hear anything, I disputed Discover's entry on my report. Transunion erased it straight away. Still, checking the dockets & the case is still open but dormant. There is no new attorney assigned to the case yet. I've been getting some recent collection calls from a totally different company (was the debt sold again?). Anyway, my questions are:

  • Should I be worried? lol too late, already am. Imagine getting this close & getting hit with a judgment.
  • Should I submit a motion to dismiss? It's wellllll beyond the time period allowed to, I know--but if I can get it dismissed on the simple matter that this attorney is no longer practicing, that gives me a little but to work with...right? Also gonna claim improper service because I never was officially served with further documentation of any filings/motions.
  • Statute of limitations is most definitely up. Do I have a leg up in this case? Even with the dormant suit?

Thanks for any help!

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