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If you appeal ONLY the denied motion the appellate court can remand it back to Magistrate. If you go to trial and lose then appeal the entire case THAT is de novo in State Court.  What you appeal determines what happens next and in which court.

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5 hours ago, SkyStillSunny said:

I was just reading through some other posts, and was hoping @NormInGeorgia has any advice for Forsyth County in GA? I am referring to this below:

If I file for an appeal to State Court, and I win, does it get remanded down back to magistrate court? Why would I file a stay of the case in magistrate if the judgement has already been made? If GA is "de novo" as @fisthardcheese stated, then it sound like my magistrate case is closed and wiped and I get a new case in state. I'm just confused whether I would get remanded back to magistrate and my original case would stay in "limbo" while my state case is heard. Do I have to file for a stay before a judgement is made in magistrate? Because the judge I have is not going to allow me a stay.

Also, when I go back to court I plan to try to settle for a portion. Can I tell the attorneys that I plan to appeal and bring my motion to State to help persuade them to settle? Or should I keep that to myself?

The judge denied arbitration because of the small claims language.  Doing a stay and interlocutory appeal would likely end up with the same result since you are still in magistrate, so that would be a terrible way to go.  You must either conclude the Magistrate case, then appeal or attempt to file now to remove the case to State Court (which I doubt they will allow this far into a case).

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Ok, now I think I understand. I didn't realize you could appeal just a motion. I think my best bet then is to let the magistrate judge find for the plaintiff and grant their motion for default judgement for the full amount. Then at that point I can file for an appeal for the entire case to state court? When I do that, what happens to the judgement that was granted against me in magistrate? Does it still hold until I get an answer in state, or is the case dismissed in magistrate and reheard in state?

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3 hours ago, SkyStillSunny said:

I think my best bet then is to let the magistrate judge find for the plaintiff and grant their motion for default judgement for the full amount. Then at that point I can file for an appeal for the entire case to state court?

Yes, that is when you can appeal to State Court and it is a trial de novo.

3 hours ago, SkyStillSunny said:

When I do that, what happens to the judgement that was granted against me in magistrate?  Does it still hold until I get an answer in state, or is the case dismissed in magistrate and reheard in state?

The judgment is stayed until the appeal is heard, it will not be dismissed.  That is because you will be required to post a bond in the amount of the judgment in order to appeal.  That way if you lose they collect immediately.

 

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That is because you will be required to post a bond in the amount of the judgment in order to appeal.

Oh wow, ok. Hmm, so if I lose my appeal then they get their judgement all at once. I've never bought a bond before. Do you know if I will have to post the same time I file the appeal in GA?

Does anyone know my chances of winning this appeal? I think I'm still going to try to see if they will agree to settle for 50%, and if not then I will go the route of the appeal.

I appreciate everyone's information, thank you!

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15 hours ago, SkyStillSunny said:

Oh wow, ok. Hmm, so if I lose my appeal then they get their judgement all at once. I've never bought a bond before. Do you know if I will have to post the same time I file the appeal in GA?

Does anyone know my chances of winning this appeal? I think I'm still going to try to see if they will agree to settle for 50%, and if not then I will go the route of the appeal.

I appreciate everyone's information, thank you!

Don't take this bond stuff as gospel.  Ask the Magistrate Court's clerk if that is the case.  I have only seen it required with tenant cases dealing with rent and there is no mention of it on the Court's website (in any of the counties I have checked).   It is more likely you will just have to pay the filing fee for state court upon appeal.  You only have 30 days to file the appeal after judgement.

 

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@fisthardcheese If I file an appeal, I might just get a lawyer to help me in state court. I thought I saw you recommend a firm in GA (near Forsyth or Gwinnett county), but I can't find that post. Do you have a law firm you recommend?

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2 hours ago, SkyStillSunny said:

@fisthardcheese If I file an appeal, I might just get a lawyer to help me in state court. I thought I saw you recommend a firm in GA (near Forsyth or Gwinnett county), but I can't find that post. Do you have a law firm you recommend?

If this were my case, once in state court I feel like it's all downhill from there as the hardest part was already completed.  Immediately filing an MTC and getting it granted in State Court should be fairly straight forward.

But if you want to use an attorney, I'd go with Skaar and Feagle.  They will charge you 50% of what you are being sued for.  Also if you are set on using an attorney after all of the work of an appeal, then you might as well call them right now before you actually lose in Magistrate and save yourself the $300 filing fee for State Court too.

Did you file a counterclaim yet?  This is also a very winning strategy in Magistrate.  When you hire an attorney, the first thing they will do is file a boiler plate counter claim and then contact the other side to negotiate a mutual dismissal.  You can just do that part yourself for free.

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@fisthardcheese I called the magistrate and it looks like it's a $217 filing fee, and not sure if they will require a bond. But I can submit my MTC once I get a state case number since I already have it done. Ok, well I wasn't sure how much the attorneys would cost, so if it's 50% then I might as well try the appeal on my own.

If I lose in state court, then is it just a default judgement for the full amount at that point? Do I have no room to negotiate a settlement in state court?

Is there a boiler plate counterclaim on this forum I can use? The only worry I have with this is that if I file a counterclaim, and we go to court on that, then this judge I have will seriously rip me to pieces. He will want me to show evidence, and documentation and expect me to explain it thoroughly and I am not prepared for that. I am pretty sure he'd dismiss my counterclaim on the spot. He was the same judge previously that told me "Well you sure knew how to write up this MTC, so I think you can figure it out," when I asked him something about arbitration before.

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7 minutes ago, SkyStillSunny said:

If I lose in state court,

I am very confident you wont.

7 minutes ago, SkyStillSunny said:

The only worry I have with this is that if I file a counterclaim, and we go to court on that, then this judge I have will seriously rip me to pieces. He will want me to show evidence, and documentation and expect me to explain it thoroughly and I am not prepared for that. I am pretty sure he'd dismiss my counterclaim on the spot. He was the same judge previously that told me "Well you sure knew how to write up this MTC, so I think you can figure it out," when I asked him something about arbitration before.

The idea is that once you file a counter claim it won't go to the judge.  When you go back to court, you will meet with the attorney before hand again and you will be amazed that the attorney will act as if this is your first appearance and will have no knowledge of your previous court date.  They will see your counter claim.  The ATTORNEY will probably grill you on evidence and do everything they can to scare you into paying them to go away.  If you stand your ground and show at least something to them, 90% of the time they will agree to a dismissal.

There is no boiler plate here because every case is different and we don't know what you have for potential counter claims.  But I can tell you that off the top of my head I would bet you that your credit report balance on this account does not match what the JDB sued you for.  That is one claim I use right there.  Any evidence I have that they called my cell phone is another evidence I could use for a counter claim.

If you don't have a counter claim, you will lose and are planning to appeal.  I don't see why it would matter if the judge "rips into you" and then you lose.  You still appeal de novo so none of it matters.

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Thank you @fisthardcheese that does make sense. I'd have nothing to lose then, so I might as well try. Can I bring my counterclaim to court on my hearing date (because of work I can't make it to the magistrate beforehand and it won't get there in time if I mail it now) or does it have to be filed before then? I may have lost out on that if it has to be filed before. I could probably go to the magistrate early and file it right before my hearing?

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File it right before the hearing and hand a copy to the attorney when he meets with you and say you filed it that day.  Although by doing it this way it will allow them to get another continuance and you may have to go to court yet again at a later date.

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UPDATE: First of all, can I say how much I love this board? It has been instrumental in helping me with so many of my cases. I really appreciate all the knowledge and advice that you guys so willingly share. Indebted (no pun intended)!

So I went to court, and filed my counterclaim with the clerk immediately. The attorney was there for me and 4 other cases. Guess how many showed up? Just me. We go to talk in the hall. He tells me that his client agreed to settle for 65% and I can make monthly payments over 2 years. At our last hearing I tried to settle with them and offered $1000 right then, or 50% w/ payments (bc my MTC was denied, and I didn't know what else to do), and he called the client and they said no to that, and said the best they could do was like 80%. I told them no and we could go to trial, well that's when he got the continuance so he could go back to his client and discuss a 50% settlement, and they would let me know.

Well at all of y'alls suggestions, I said no to the 65% settlement and that I had just filed a counterclaim against his client for malicious prosecution and violation of the Fair Debt Collection Practices Act. And that the most I could do was $500 and payments over 4 months. Then I said if he didn't agree to that, then we could go to trial and that I knew I would lose since the judge already denied my MTC, and I was already aware of that. However, I said I planned to appeal his decision and take it up in State Court. Then he told me to hold on, and he texted someone for a couple of minutes and said "ok the client has agreed!" 

So he pulls up a consent order, and then I told him that there has to be language in it that states that the case would be dismissed with prejudice and that my credit file will show "paid in full" for this account. And at first he said no, he has to do dismiss without prejudice and not to worry that they wouldn't go after me again. I told him no deal if it doesn't say WITH PREJUDICE. So he gave in. 

I know that I could have probably taken this to state court and been granted my MTC, but the appeal was going to cost me at least $217, and I figure another $283 to just settle this now and not have to go back to court was worth the anxiety that going to court always brings me.

THANK YOU ALL SO MUCH! Another case with a successful outcome!

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2 hours ago, SkyStillSunny said:

UPDATE: First of all, can I say how much I love this board? It has been instrumental in helping me with so many of my cases. I really appreciate all the knowledge and advice that you guys so willingly share. Indebted (no pun intended)!

So I went to court, and filed my counterclaim with the clerk immediately. The attorney was there for me and 4 other cases. Guess how many showed up? Just me. We go to talk in the hall. He tells me that his client agreed to settle for 65% and I can make monthly payments over 2 years. At our last hearing I tried to settle with them and offered $1000 right then, or 50% w/ payments (bc my MTC was denied, and I didn't know what else to do), and he called the client and they said no to that, and said the best they could do was like 80%. I told them no and we could go to trial, well that's when he got the continuance so he could go back to his client and discuss a 50% settlement, and they would let me know.

Well at all of y'alls suggestions, I said no to the 65% settlement and that I had just filed a counterclaim against his client for malicious prosecution and violation of the Fair Debt Collection Practices Act. And that the most I could do was $500 and payments over 4 months. Then I said if he didn't agree to that, then we could go to trial and that I knew I would lose since the judge already denied my MTC, and I was already aware of that. However, I said I planned to appeal his decision and take it up in State Court. Then he told me to hold on, and he texted someone for a couple of minutes and said "ok the client has agreed!" 

So he pulls up a consent order, and then I told him that there has to be language in it that states that the case would be dismissed with prejudice and that my credit file will show "paid in full" for this account. And at first he said no, he has to do dismiss without prejudice and not to worry that they wouldn't go after me again. I told him no deal if it doesn't say WITH PREJUDICE. So he gave in. 

I know that I could have probably taken this to state court and been granted my MTC, but the appeal was going to cost me at least $217, and I figure another $283 to just settle this now and not have to go back to court was worth the anxiety that going to court always brings me.

THANK YOU ALL SO MUCH! Another case with a successful outcome!

If you are happy with the outcome, that is all that matters.  Given that he was giving in to EVERYTHING you asked for, I would have started with that $0 mutual dismissal, but again, if you are happy with it, then that's all that matters.

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I got so flustered that I didn't even give him time to react after I handed him my counterclaim, which in hindsight I should have waited for! I just did NOT want to face that judge again. He scares me and makes me super nervous and I felt like if he asked me a bunch of questions about my counterclaim, then I would probably look like an idiot. I really thought about it and didn't even make a decision until I met with the attorney and just decided that I wanted this settled. I am happy with the results. You guys rock!

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54 minutes ago, SkyStillSunny said:

I am happy with the results. You guys rock!

:cheerleader::cheerleader::cheerleader:

Congrats on holding firm and negotiating a settlement you're happy with! You can put this behind you and not have to battle on to an appeal. Well done. 

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