Continuance Magistrate Court

[RoxyonSkyland]

Just found this forum today but haven’t found specific answer yet so bear with me. 

I resided in TX for 14 years and was married for 9 of those years. My husband was the sole breadwinner for the almost half of our marriage due to an extended illness. When we divorced, he absorbed all of our debt, which was significant.  The lawsuit names my married name not my current name.

I moved to GA in March 2017.

I have been sued in Magistrate Court in Dekalb County by Cavalry assignee of Citibank that was defaulted on in July 2013 according to their complaint.

The SOL has run in TX (4years). I answered with a general denial, and a demand that they produce written contract, bill of sale showing they own the debt, account history with charges, payments, interest, and fees. I asserted lack of standing on the basis that the (alleged) contract was executed and defaulted in TX. I appeared and the Plaintiff attorney told me my SoL argument won’t be accepted by judge. He said he hadn’t received my answer (I filed it the day of the hearing) so I gave him a copy. I asked for a continuance.

The setting is now Dec 5.

I am not sure what to do next. I am unemployed, almost 50k in debt to my family, struggling with temp jobs just to survive. Definitely judgment proof although I’m looking for work and don’t want a wage garnishment with a new employer. 

I have successfully removed some recent collections by asking for verification but it’s too late on this one. 

I am a terrible record keeper since the move so I don’t know if I ever contested this one or asked for verification. 

I can barely afford parking at the courthouse let alone any kind of settlement agreement which only worsens my credit. 

I have a pauper’s affidavit so I can file pleadings for free. 

They sent me a letter today saying they will introduce business records (by affidavit testimony if necessary). 

An attorney friend from TX sent me some case law from TX circuit court indicating Cavalry needs to prove I owe it to them, that I owe it at all, that it’s solely mine, that it’s not time-barred, and have to provide a full account history (not just a statement), a written contract (not just a boilerplate but the actual agreement they claim I entered into) and a bill of sale showing they purchased the debt from Citi, when, and for how much.

I told their lawyer I would appeal if necessary but they are still pursuing it. On the date of my first hearing, there must have been 30 people ahead of me and none asked for a trial—they all made a hallway deal to pay. I am not paying them anything. I can’t.

I also can’t afford an attorney but I didn’t mention my impoverished status to the Plaintiff attorney.  

What’s next ? 

Thank you.

 

[Harry Seaward]

20 minutes ago, RoxyonSkyland said:

I moved to GA in March 2017.

....defaulted on in July 2013.

The SOL has run in TX (4years).

Because you moved from Texas before the SOL had run there, you very likely subjected yourself to the 6-year GA SOL.

20 minutes ago, RoxyonSkyland said:

I answered with a general denial, and a demand that they produce written contract, bill of sale showing they own the debt, account history with charges, payments, interest, and fees.

They will produce the agreement, bill of sale and a few account statements.  That's all they need to win. 

20 minutes ago, RoxyonSkyland said:

on the basis that the (alleged) contract was executed and defaulted in TX. 

Irrelevant. Moving from one state to another doesn't absolve you of the debt. 

20 minutes ago, RoxyonSkyland said:

An attorney friend from TX sent me some case law from TX circuit court indicating Cavalry needs to prove I owe it to them, that I owe it at all, that it’s solely mine, that it’s not time-barred, and have to provide a full account history (not just a statement), a written contract (not just a boilerplate but the actual agreement they claim I entered into) and a bill of sale showing they purchased the debt from Citi, when, and for how much.

These things may be true in Texas, but you are now subject to GA law and procedure. 

20 minutes ago, RoxyonSkyland said:

I didn’t mention my impoverished status to the Plaintiff attorney

You can try to plead your case to them directly. Some JDBs have a policy of not pursuing debtors that are unable to pay, but it's usually for those that have no chance of ever securing gainful employment (retired, disability, etc).

If you can't pay, then you can't. I'd take a stab at arbitration. Just know that because this was originally a Citi debit the judge there could find the small claims exemption from the card agreement precludes your case from arbitration. Otherwise, roll the dice in court and try to attack their records. Just understand that the odds are strongly against you and a judgment in their favor is nearly certain. 

[Clydesmom]

1 hour ago, RoxyonSkyland said:

I answered with a general denial, and a demand that they produce written contract, bill of sale showing they own the debt, account history with charges, payments, interest, and fees.

The problem with this is Magistrate Court does not allow discovery.  They are not required to produce anything until the day of trial though you could get lucky and they do it anyway.  NO court is going to be looking for a written contract in a credit card case.  Under the GA Business Records laws they can use an affidavit regarding the sale of the account and their standing.  As for the account history:  irrelevant.  You only have 6 months to dispute charges and fraudulent or inaccurate.  If you do not do that after 6 months the charges are valid.  If they have the last 6 months of statements it will be more than enough to prevail.

2 hours ago, RoxyonSkyland said:

I asserted lack of standing on the basis that the (alleged) contract was executed and defaulted in TX. I appeared and the Plaintiff attorney told me my SoL argument won’t be accepted by judge.

He is correct.  Harry is correct, unfortunately you did extend that SOL to GA 6 year SOL when you moved while it was still alive in Texas.  

2 hours ago, RoxyonSkyland said:

They sent me a letter today saying they will introduce business records (by affidavit testimony if necessary).

Read that letter very carefully.  It should have something in there about when/where you can go inspect those records.  If you fail to do that you cannot object to their admission by affidavit.  One of the things that JDBs count on a defendant not knowing in GA.

2 hours ago, RoxyonSkyland said:

An attorney friend from TX sent me some case law from TX circuit court

NONE of which has any bearing in GA.  Texas is VERY debtor friendly.  GA is not. GA does not require a full accounting, written contract (which the attorney is wrong on for credit card cases) or written proof it isn't time barred.

2 hours ago, RoxyonSkyland said:

I told their lawyer I would appeal if necessary but they are still pursuing it.

Because he knows you cannot afford to appeal.  While appealing in GA is a trial de novo (a whole new trial from the beginning) you must also post an appeal bond in the amount of the judgment from the lower court case so that if you lose the appeal the other party gets their money.  You only have 30 days from the first verdict to post that bond and file the appeal.

I would attempt a MTC arbitration and see if if passes.  Which law firm is suing you?  This can make a difference as well.

[RoxyonSkyland]

Attached the letter. It says inspection will be available if Plaintiff chooses to use affidavit testimony. 

The firm is Roosen, Varchetti, & Oliver. 

I am grateful for all this info. I guess my next step is to read up on arbitration.

The plaintiff lawyer was visibly annoyed when I refused to negotiate with him. 

I didn’t know about the bond so that’s a 

I don’t have access to any bank records because my ex took care of everything (control freak) or in some cases, didn’t take such great care but that’s irrelevant.