Paydayjax Posted February 4, 2020 Report Share Posted February 4, 2020 I've been reading these forums in depth since I was served a summons by Cooling & Winter LLC on behalf of Portfolio Recovery Associates and it's been super helpful, though I do have a few questions and would feel more confident in these proceedings with some input from you all. The OC, Beall's Outlet - Comenity Bank has an arbitration clause that if I'm reading correctly - I can use as my course of action. Will I be asked by the judge if it is in fact my debt, am I meant to deny it or admit it and will my answer sway the ruling? I ask because while I did have an account that I stupidly neglected, I question the validity of some of the information they've provided. Not only does the amount not seem right but pretty much all the identifying info such as my phone number, SSN and account number has been redacted on the summons I received so I'm not even sure what's there...is that normal? Some of the wording in the Comenity arbitration clause is confusing and I want to make sure that arbitration is indeed the route I should be taking (I've attached it to this post). Also, I can only find a current cardholder agreement do I need to locate one for the last time the account was current? I've seen conflicting opinions about at what point to make my intention for arbitration known. Should I include intent to compel arbitration in my answer? Do I check counterclaim and that's where I would include the motion or do I wait for the court day and present the motion then? Last concern, I feel like with all my reading and researching I should know this but I'm still at a loss on what to put for the reason for denying on the answer form. Some days I feel like I have a plan and I'm ready to face this and others I feel completely lost. I appreciate any input you all have to offer and thanks for taking the time to read! 1. Who is the named plaintiff in the suit? Portfolio Recovery Associates, assignee of Comenity Bank/Beall's Outlet 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Cooling & Winter 3. How much are you being sued for? 2,472.76 + 95.00 court costs 4. Who is the original creditor? (if not the Plaintiff) Beall's Outlet/Comenity Bank 5. How do you know you are being sued? (You were served, right?) Served at home 6. How were you served? (Mail, In person, Notice on door) in person 7. Was the service legal as required by your state? Yes Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Georgia, Floyd county 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) this says 2/22/2018 though I honestly don't remember 11. When did you open the account (looking to establish what card agreement may be applicable)? 2/28/2015 12. What is the SOL on the debt? To find out: 6 years Statute of Limitations on Debts 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). Suit served 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 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 disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No 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? 30 days, I need to submit my answer sometime this week. Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. A statement showing use of card, finnal account statement and evidence of assignment 18. How did you find out about this site? Frantically googling about being sued by PRA 18. Read these two links: Using Arbitration To Defend A Debt Collection Lawsuit Sued by a Debt Collector - Learn How to Fight Debt Lawsuits ==================================================== Bealls_Outlet.pdf Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted February 4, 2020 Report Share Posted February 4, 2020 12 minutes ago, Paydayjax said: Will I be asked by the judge if it is in fact my debt, am I meant to deny it or admit it and will my answer sway the ruling? You can answer that you had a Beall's account, but aren't sure if this is the one. Regardless of that, PRA has alleged they own the debt, and if I were you, I would let the judge know that you deny that until they prove it, either at trial or arbitration. 15 minutes ago, Paydayjax said: I've seen conflicting opinions about at what point to make my intention for arbitration known. Should I include intent to compel arbitration in my answer? Do I check counterclaim and that's where I would include the motion or do I wait for the court day and present the motion then? The confusion comes from the fact that GA does things in an unusual way wherein you aren't allowed to file any motions before your initial court date. You show up and bring any motions you want heard that day, or you go right to trial. If the court denies your MTC, then you also go right to trial. There is some fear mongering here about Cooling and Winter with regard to their "skill" at defeating a MTC arbitration. I looked through several C&W threads here over the last 4 or 5 years and did not see any evidence that they are any more effective at defeating a MTC than any other lawfirm. So if I were you, I would prepare your MTC in accordance with the arbitration thread, and instead of filing it ahead of time, take it with you and let the court know you want that matter heard and decided first thing. If the judge denies it, it would very likely be reversible error on appeal, but that's a different topic of discussion that doesn't need to be had unless your motion is denied. Quote Link to comment Share on other sites More sharing options...
Paydayjax Posted February 4, 2020 Author Report Share Posted February 4, 2020 7 minutes ago, Harry Seaward said: You can answer that you had a Beall's account, but aren't sure if this is the one. Regardless of that, PRA has alleged they own the debt, and if I were you, I would let the judge know that you deny that until they prove it, either at trial or arbitration. The confusion comes from the fact that GA does things in an unusual way wherein you aren't allowed to file any motions before your initial court date. You show up and bring any motions you want heard that day, or you go right to trial. If the court denies your MTC, then you also go right to trial. There is some fear mongering here about Cooling and Winter with regard to their "skill" at defeating a MTC arbitration. I looked through several C&W threads here over the last 4 or 5 years and did not see any evidence that they are any more effective at defeating a MTC than any other lawfirm. So if I were you, I would prepare your MTC in accordance with the arbitration thread, and instead of filing it ahead of time, take it with you and let the court know you want that matter heard and decided first thing. If the judge denies it, it would very likely be reversible error on appeal, but that's a different topic of discussion that doesn't need to be had unless your motion is denied. I feel completely out of my comfort zone with this so I want to be prepared for any scenarios/questions. I was ready to file my answer today but got hung up on the motion to compel thing and questioned if I was doing everything properly and in the correct order, so thank you for clearing that up! Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted February 4, 2020 Report Share Posted February 4, 2020 Be sure to include in your answer an affirmative defense of "court lacks subject matter jurisdiction due to the dispute being subject to private contractual arbitration". I think that is covered in the arbitration thread, but I believe GA is one of the states that requires a party to assert their arbitration rights in their initial pleadings. I could be wrong, but it's of no consequence if I am, and could grenade your arbitration plan if I'm right. I read through your card agreement, and there's nothing in there that would be a problem for you. The "small claims" wording won't keep you from being able to use arbitration. Quote Link to comment Share on other sites More sharing options...
Paydayjax Posted February 4, 2020 Author Report Share Posted February 4, 2020 5 minutes ago, Harry Seaward said: Be sure to include in your answer an affirmative defense of "court lacks subject matter jurisdiction due to the dispute being subject to private contractual arbitration". I think that is covered in the arbitration thread, but I believe GA is one of the states that requires a party to assert their arbitration rights in their initial pleadings. I could be wrong, but it's of no consequence if I am, and could grenade your arbitration plan if I'm right. I read through your card agreement, and there's nothing in there that would be a problem for you. The "small claims" wording won't keep you from being able to use arbitration. The smalls claims wording is the exact part that threw me off. I was leaning towards including the jurisdiction issue in my answer of denial but was unsure how to word it. Thank you so much for taking the time to give me some advice it's been very helpful and I will read up on the arbitration thread some more! Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted February 4, 2020 Report Share Posted February 4, 2020 28 minutes ago, Harry Seaward said: Be sure to include in your answer an affirmative defense of "court lacks subject matter jurisdiction due to the dispute being subject to private contractual arbitration". Magistrate Court doesn't use formal answers. You have two options. Show up to Magistrate Court and wait and be heard verbally by the Magistrate that you are answering the suit or use the pre-printed answer form from the clerk's office. 29 minutes ago, Harry Seaward said: I believe GA is one of the states that requires a party to assert their arbitration rights in their initial pleadings. That is FL not GA. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted February 4, 2020 Report Share Posted February 4, 2020 6 minutes ago, Clydesmom said: Magistrate Court doesn't use formal answers. You have two options. Show up to Magistrate Court and wait and be heard verbally by the Magistrate that you are answering the suit or use the pre-printed answer form from the clerk's office. Is this information outdated then? "After the claim has been filed, the magistrate court will serve (notify) the defendant with a copy of the claim and a summons to appear in court. The defendant has 30 days, in most cases, to give the court a written or oral answer to the claim. If the defendant fails to answer within this time, the plaintiff can ask the judge for a default judgment." http://consumer.georgia.gov/consumer-topics/magistrate-court Edit: Or are you saying you just show up to the courthouse any time within that initial 30 day window? Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted February 4, 2020 Report Share Posted February 4, 2020 56 minutes ago, Harry Seaward said: Or are you saying you just show up to the courthouse any time within that initial 30 day window? Yes. Within 30 days of being served the Defendant can simply show up to Magistrate Court. They have "open hours" where the Magistrate hears walk in stuff like that. You simply tell the Magistrate you deny their claim and want a trial. They will then stamp your form and send you back to the clerk's office. Within 30 days the clerk will mail a notice to both parties of when the trial date is. There is no pre-trial. EVERYTHING is done on the one day. For the written answer in Magistrate it is a waste of time to use anything but the pre-printed form. The Magistrate will not see it or consider it in any way. The only thing an answer does in GA Magistrate Court is tell the court you are aware of the suit and have been properly served and want a trial if you elect denied. There are options that a defendant can choose to settle etc. That does not apply to what we are discussing. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted February 4, 2020 Report Share Posted February 4, 2020 12 hours ago, Clydesmom said: Within 30 days of being served the Defendant can simply show up to Magistrate Court. Got it. Thanks. The way that was worded on the website wasn't very clear. Quote Link to comment Share on other sites More sharing options...
mofotech Posted March 5, 2020 Report Share Posted March 5, 2020 What was your results ? Quote Link to comment Share on other sites More sharing options...
Paydayjax Posted March 5, 2020 Author Report Share Posted March 5, 2020 My court date is set for the 18th, I'm still pretty unsure about the wording in the arbitration agreement so Idk what my plan is. Quote Link to comment Share on other sites More sharing options...
Recommended Posts
Join the conversation
You can post now and register later. If you have an account, sign in now to post with your account.