NYpeach Posted October 31, 2018 Report Share Posted October 31, 2018 Hello, I ran into some health problems and was unable to work for a while and unfortunately I got in over my head. I have been reading over older posts and have learned a lot of great information, but I still have a few questions. Here is the background info: 1. Who is the plaintiff in the suit? Midland Funding LLC 2. What is the name of the law firm handling the suit? Green and Cooper LLP 3. How much are you being sued for? ~$6,900 4. Who is the original creditor? CitiBank, NA (My Best Buy Visa) 5. How do you know you are being sued? Served in person 6. How were you served? By marshal at my home 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? No correspondence 9. What state and county do you live in? Georgia - Fulton County 10. When is the last time you paid on this account? 08/2016 11. When did you open the account? 03/2014 12. What is the SOL on the debt? 6 years 13. What is the status of your case? Court ordered mediation scheduled for 11/1/18. 14. Have you disputed the debt with the credit bureaus. No 15. Did you request debt validation before the suit was filed? No 16. How long do you have to respond to the suit? I responded (denied/didn't have sufficient information to respond) and received a letter that "The Court...finds that this case is suitable for mediation..." Medication is scheduled for tomorrow (Nov 1) 17. What evidence did they send with the summons? Exhibit A: Statement 3/2017 Exhibit B: Statement 9/2016 Exhibit "C": Bill of Sale and Assignment from OC, Exhibit 1 - Asset Schedule, Affidavit of Sale from OC, Certificate of Conformity Exhibit "D" Electronic Field Data Exhibit E: Affidavit from Midland's Legal Specialist Questions 1. I haven't seen very much information about court ordered mediation in Fulton county in other threads. What should I expect? 2. My CC agreement has an arbitration clause, but with the small claims court exception. How can I force the case into arbitration (or otherwise) with the goal of having the case dismissed? 3. Would it make sense for me to go to court prior to mediation to see the lawyer representing Midland in my case in action (he is on calendar for this afternoon)? Thank you so much for any assistance you can offer, I greatly appreciate it. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted October 31, 2018 Report Share Posted October 31, 2018 2 hours ago, NYpeach said: 1. I haven't seen very much information about court ordered mediation in Fulton county in other threads. What should I expect? 2. My CC agreement has an arbitration clause, but with the small claims court exception. How can I force the case into arbitration (or otherwise) with the goal of having the case dismissed? 3. Would it make sense for me to go to court prior to mediation to see the lawyer representing Midland in my case in action (he is on calendar for this afternoon)? 1. The court ordered mediation is new for GA. I would expect the mediator to be the advocate for the Plaintiff and force you to settle. 2. You cannot force it to arbitration other than with a motion to compel signed by the court. There is no way to know how the court will rule on the "small claims" exemption in regards to Magistrate Court. You need to be prepared that the attorney will argue it is and have a counter argument with GA case law to back it up. 3. NO. 1 Quote Link to comment Share on other sites More sharing options...
NYpeach Posted October 31, 2018 Author Report Share Posted October 31, 2018 Thanks @Clydesmom. Not what I really what I wanted to hear, of course, but it is what it is. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted October 31, 2018 Report Share Posted October 31, 2018 34 minutes ago, NYpeach said: Not what I really what I wanted to hear, of course, but it is what it is. Many cases in Magistrate Court are fairly easy to solve. The point of court ordered mediation is hoping that having a neutral party as a go between will aid the parties to settle the matter without having to use the court system. If they can't resolve the matter then there will be a trial in court. Outside of "redneck divorces" I have not heard of any court mandated mediation program being favorable to a consumer/debtor being sued by a creditor. As for the small claims carve out in CITI contracts there are 2 arguments. I am in the camp that it doesn't have to specifically say "SMALL CLAIMS" over the court room door for it to be a small claims court. The other opinion is that unless the court is called small claims it isn't one. The Judge has a ironic funny way of deciding the interpretation based on his/her legal opinion. If the Plaintiff opposes your motion to compel on that argument the burden shifts to you to prove the clause does not apply to your case. If the Magistrate denies the MTC you go to trial right then there is no delay. If you lose the case then your only option is to appeal to State Court. The appeal would be a trial de novo (brand new from the start) however GA requires you post an appeal bond in the amount the Plaintiff was awarded at verdict. Another issue you are facing is this particular law firm: Greene and Cooper is a spin off of attorneys from the defunct Fred Hanna law firm. Hanna was essentially shut down by the CFPB by his illegal and disgusting collection practices. They simply opened up shop under a new name. Same bottom feeding ilk and methods new name. I would go to the mediation and demand PRIVATE contractual arbitration per the terms of the card agreement. You have a chance that G&C does not argue the small claims exemption. They may just give up and go away. If they don't then you ask for a continuance and get ready to fight. 1 Quote Link to comment Share on other sites More sharing options...
NYpeach Posted November 1, 2018 Author Report Share Posted November 1, 2018 @Clydesmom Thank you so much for the additional information! So it looks like my plan is to go to mediation and basically only say that I am going to file a MTC and that the account and the amount is entirely in dispute. I took a closer look at the cardholder agreement when the account was opened and it looks like the arbitration clause is actually more favorable to the consumer then I first thought. I attached a copy, arbitration info starts on page 4. Am I missing something? I know that in Magistrate Court the judge can basically do whatever he wants, but it looks like it is pretty clear that I can have this moved to arbitrations. It also had a survival provision and states the governing law is Federal law and the law of South Dakota. Thanks again! Best Buy agreement 08.13.pdf Quote Link to comment Share on other sites More sharing options...
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