FUjdb

Fighting Midland in Gwinnett County Magistrate

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My husband is being sued by Midland for ~$1,100. I’ve been creeping on these message boards for weeks trying to figure out the best course of action for fighting it but I still have a couple questions so I figured I should just ask. Will a MTC work in Magistrate? I’m not sure if it’s considered small claims and therefore covered in the exclusion of compelled arbitration, or if Magistrate is its own entity.
 

The law firm is Cooling & Winter, which I’ve seen from a couple posts, doesn’t bode well for being granted MTC anyway since they seem to be getting savvy to the whole idea. What does Midland need to show to the magistrate to prove standing? When my husband was served they included 2 statements, a copy of the terms of service from OC, a couple bills of sale, and a spreadsheet with his information and some basic facts on it. Honestly I’ve been digging through that whole packet trying to pick it apart from every angle but I can’t figure out what the magistrate would allow and what would be inadmissible to prove standing. For example, does the bill of sale have to list his account specifically, or is just the file name in which his account was allegedly included good enough for Magistrate? Also, the file name changes in one of the shuffles. Is that enough to question validity of the entire situation?

His trial is Thursday night, so thank you in advance for any and all advice given. This has gotten to be so overwhelming. 

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4 hours ago, FUjdb said:

Will a MTC work in Magistrate?

Yes a MTC CAN work.  There is no guarantee the Judge rules in your favor.

4 hours ago, FUjdb said:

I’m not sure if it’s considered small claims and therefore covered in the exclusion of compelled arbitration, or if Magistrate is its own entity.

Magistrate Court in GA is small claims. Who is the original creditor on the claim?

4 hours ago, FUjdb said:

The law firm is Cooling & Winter, which I’ve seen from a couple posts, doesn’t bode well for being granted MTC anyway since they seem to be getting savvy to the whole idea.

  1. Cooling & Winter is the successor to the notorious law firm of Frederick J. Hanna & Associates.
  2. Hanna is the same firm that in January 2016, was fined $3.1 million and then shut down by the Consumer Finance Protection Bureau. (CFPB)

That said:  C&W has lost several MTC and all other ilk aside they are prepared to argue vigorously against a MTC.  Your husband needs to be prepared to argue as vigorously as to why the Magistrate must approve the motion including relevant case law.

4 hours ago, FUjdb said:

When my husband was served they included 2 statements, a copy of the terms of service from OC, a couple bills of sale, and a spreadsheet with his information and some basic facts on it. Honestly I’ve been digging through that whole packet trying to pick it apart from every angle but I can’t figure out what the magistrate would allow and what would be inadmissible to prove standing.

That is enough to prove standing under the GA adoptive business records laws.

4 hours ago, FUjdb said:

For example, does the bill of sale have to list his account specifically, or is just the file name in which his account was allegedly included good enough for Magistrate?

His specific account does not have to be listed.  An affidavit attesting that his account was purchased in the pool is enough.

4 hours ago, FUjdb said:

Also, the file name changes in one of the shuffles. Is that enough to question validity of the entire situation?

If the MTC is denied and it goes to trial (which it will immediately) I would argue their records are flawed and not reliable based on that.

 

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29 minutes ago, Clydesmom said:

That said:  C&W has lost several MTC and all other ilk aside they are prepared to argue vigorously against a MTC. 

Just curious.  How do you know they are prepared to vigorously argue against a MTC?

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22 minutes ago, BV80 said:

Just curious.  How do you know they are prepared to vigorously argue against a MTC?

Several posters succeeded in getting an approved MTC then there were a few after that who did the same thing and came back and said their motion was denied because C&W came prepared to fight against it.  I think one even said the attorney muttered something about having seen the motions before.

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5 hours ago, Clydesmom said:
 

Several posters succeeded in getting an approved MTC then there were a few after that who did the same thing and came back and said their motion was denied because C&W came prepared to fight against it.  I think one even said the attorney muttered something about having seen the motions before.

Do you have the links to the relevant threads?

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5 hours ago, Clydesmom said:

then there were a few after that who did the same thing and came back and said their motion was denied because C&W came prepared to fight against it.

On this board? I couldn't find anything at all here that fits this description. 

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3 hours ago, Harry Seaward said:

On this board? I couldn't find anything at all here that fits this description. 

At least one was on another board and I know I got one as a PM because the OP was upset that the lawyer from the firm didn't cave in the hallway discussions and then they argued vigorously to the Magistrate and the motion was denied.

I get it that you don't think Defendants should be prepared for the possibility they have to defend the motion but I can't support that tactic.

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3 hours ago, BV80 said:

Do you have the links to the relevant threads?

I tried searching but it highlights too many things that aren't relevant.

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11 hours ago, Clydesmom said:

I get it that you don't think Defendants should be prepared for the possibility they have to defend the motion but I can't support that tactic.

I have no idea why you're trying to turn this back on me. Or what you're even talking about, for that matter. Please link to one post where i told anyone, or even implied, that it wasn't important to be prepared to argue a motion.  All i asked here is for some sort of evidence to support your incessant claim that C&W have become some sort of experts at arguing against a MTC arbitration. I looked through every C&W thread i could find and not a single one met your description, while there's a whole bunch where they lost their attempts to argue against a MTC.  Even if there was one that PM'd you, that's one. Not a "few".

Quote

I tried searching but it highlights too many things that aren't relevant.

There's only about 20 or 30 C&W threads here. 

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1 hour ago, Harry Seaward said:

I have no idea why you're trying to turn this back on me. Or what you're even talking about, for that matter. Please link to one post where i told anyone, or even implied, that it wasn't important to be prepared to argue a motion.  All i asked here is for some sort of evidence to support your incessant claim that C&W have become some sort of experts at arguing against a MTC arbitration. I looked through every C&W thread i could find and not a single one met your description, while there's a whole bunch where they lost their attempts to argue against a MTC.  Even if there was one that PM'd you, that's one. Not a "few".

There's only about 20 or 30 C&W threads here. 

Both the defendant and plaintiff, need to be prepared to argue filed motions. Common sense. 

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8 minutes ago, Robby8900 said:

Both the defendant and plaintiff, need to be prepared to argue filed motions. Common sense. 

Of course. That's why it's completely absurd that she's saying i tell people to go to court unprepared. 

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Thank you @Clydesmom for your answers. The original creditor is Credit One. 
I’m going to try my best to form an argument for arbitration my husband can use and stay behind. 

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33 minutes ago, FUjdb said:

Thank you @Clydesmom for your answers. The original creditor is Credit One. 
I’m going to try my best to form an argument for arbitration my husband can use and stay behind. 

You stated that he has trial coming up, did ya answer the complaint with affirmative defenses or have any pretrial hearings etc...

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27 minutes ago, FUjdb said:

The original creditor is Credit One.

NOW you have an even bigger problem.  Credit One has a carve out for small claims cases and Magistrate Court in GA is small claims.  He needs to be prepared to argue against that clause in the card agreement and why arbitration prevails.  

Here is how Magistrate Court works in GA:  On the evening of trial your case will be called and the Magistrate will send both of them to the hallway to see if they can work it out without the court getting involved.  This is where you bring up the MTC.  (3 copies are needed 1 for you, 1 for the court, 1 for them) Now knowing it is C&W (formerly the horrid Hanna firm) if/when they argue that arbitration is not allowed he needs to be ready with a counter argument. Hopefully he gets a newbie who knows nothing about the carve out or to fight a MTC period.  It will likely go back and forth between them if they are prepared to fight.  Where it stops I cannot predict nor can anyone else but it won't be more than a few minutes.  If you cannot reach an agreement between you (they will push for settlement with him paying) then it goes in front of the Magistrate who hears the case right then.  

Most attorneys argue that arbitration is too expensive for the CONSUMER to get the court to side with them for that reason playing on consumer sympathies.

I am a lot tougher skinned than most people who get sued and summoned to court.  In the hallway conference if it became clear that they were not going to fold I would simply shrug and say "no problem."  I am ready for a de novo appeal to the next level if necessary and make it clear that long before they collect one red cent I will see to it they lose 10X that amount in expense.  It may work it may piss them off.  I would do it but not everyone has the fortitude or acting skills to carry it out.

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Ok, wait. I just saw something strange in the bills of sale. Hopefully someone can explain it to me.

Attached as "exhibit 4" are 6 bills of sale. The first one is Credit One to MHC Receivables on 6/30/18. The next page is  duplicate copy which I will assume is just a mistake. The next bill of sale is MHC Receivables to FNBM on 7/19/18 then FNBM to Sherman Originator also on 7/19/18

Where it gets strange is the next bill of sale. This one says MHC sold the account to Sherman Originators on 7/19/18. But there's a bill of sale for MHC selling it to FNBM a few pages back. So who did they really sell it to? And does it matter since it ended up with Sherman Originators either way? Also, I'm assuming these are all umbrella companies of Midland. 

There is also no affidavit confirming legitimacy of anything, not that it would matter, I don't think, since they aren't admissible in Gwinnett's Magistrate anyway.

 

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14 minutes ago, Robby8900 said:

You stated that he has trial coming up, did ya answer the complaint with affirmative defenses or have any pretrial hearings etc...

Gwinnett county has a sheet you print out where you can just check off deny, and that's what he did. And Gwinnett has no pretrials or anything in Magistrate. It’s straight from answer the summons to get a court date. 

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5 minutes ago, Robby8900 said:

You stated that he has trial coming up, did ya answer the complaint with affirmative defenses or have any pretrial hearings etc...

NO NO NO NO NO. This is GEORGIA.  There are NO pretrial hearings in Magistrate Court.  There are no fancy answers.  Pre-printed forms that say deny or admit.  That is it.  

You are in over your head.  DO NOT distract this OP.  The law firm they are dealing with has a LONG BAD reptutation in GA.  Unless you are willing to pay the judgment your advice is straight up bad in this case.

2 hours ago, Harry Seaward said:

I have no idea why you're trying to turn this back on me. Or what you're even talking about, for that matter. Please link to one post where i told anyone, or even implied, that it wasn't important to be prepared to argue a motion.  

Not directly.  Your stance has always been the only possible way things can turn out in court is the way you are telling them it will.  The court HAS to approve a MTC or HAS to dismiss.  It almost smells reminiscent of coltfan attitude.  You consistently argue with me about my knowledge of the GA Magistrate Court when you are on the other side of the country and have never set foot in the GA courts.  

Here is what you need to know about C&W regardless of whether your agree with my assessment or not:

They used to be Fred J Hanna.  Hanna was sued by the CFPB and settled for millions.  3 weeks before the CFPB shut him down for good ALL the same attorneys simply opened C&W and continued their unethical and illegal practices.  They have been sued countless times for FDCPA violations and it is why there is another poster on here who has hired a local NACA firm who simply giggled and stated they enjoyed taking them on.  Call it experience dealing with a MTC.  Call it history of low life methods.  I don't care what you call it but understand that this law firm is one by a decades long reputation of being the WORST in the state regardless of what name they put on the building.  Recommending that any Defendant go up against them and assume they will just fold is really bad advice.  You never underestimate how low Freddie Hanna and his ilk will go to wring money out of someone.  NEVER.

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7 minutes ago, FUjdb said:

Ok, wait. I just saw something strange in the bills of sale. Hopefully someone can explain it to me.

Attached as "exhibit 4" are 6 bills of sale. The first one is Credit One to MHC Receivables on 6/30/18. The next page is  duplicate copy which I will assume is just a mistake. The next bill of sale is MHC Receivables to FNBM on 7/19/18 then FNBM to Sherman Originator also on 7/19/18

Where it gets strange is the next bill of sale. This one says MHC sold the account to Sherman Originators on 7/19/18. But there's a bill of sale for MHC selling it to FNBM a few pages back. So who did they really sell it to? And does it matter since it ended up with Sherman Originators either way? Also, I'm assuming these are all umbrella companies of Midland. 

There is also no affidavit confirming legitimacy of anything, not that it would matter, I don't think, since they aren't admissible in Gwinnett's Magistrate anyway.

Get him a consult with a NACA Attorney NOW!  One of the best (and enjoys dealing with C&W) is Skaar and Feagle.  CALL do not email.  The first consult is typically free.  They have reasonable flat rate fees and will be very up front about what they are.  

What you posted above may be a great foundation for fighting them and they may have made a BIG mistake.  I cannot say for sure but an attorney familiar with those documents and can see them will be sure.  If needed they can get a continuance for him to have time to talk to them.

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4 minutes ago, Clydesmom said:

Not directly.  Your stance has always been the only possible way things can turn out in court is the way you are telling them it will. 

Yeah, not directly.  Not ever in any form.  This is just factually incorrect, and there's no point in responding to anything else you had to say because it's based on something you just made up.  The proof of this is the fact that you couldn't bring up one single post I have ever made in the 10+ years I've been a participating member of this message board that supports your fantasies.  Stop lying about people.

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4 minutes ago, Clydesmom said:

Get him a consult with a NACA Attorney NOW!  One of the best (and enjoys dealing with C&W) is Skaar and Feagle.  CALL do not email.  The first consult is typically free.  They have reasonable flat rate fees and will be very up front about what they are.  

What you posted above may be a great foundation for fighting them and they may have made a BIG mistake.  I cannot say for sure but an attorney familiar with those documents and can see them will be sure.  If needed they can get a continuance for him to have time to talk to them.

Thank you for your advice, not just in this thread but in all the previous ones from over the years that I’ve read in the past weeks. It’s helped me get a better understand what is happening and helped me not feel so overwhelmed by everything. I’ll have him call today and hopefully this can be a slam dunk case for an experienced attorney. 

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1 hour ago, Brotherskeeper said:

@FUjdb This thread is is old but is filled with excellent advice that the poster failed to heed. 

 

No one has bothered to notice who the law firm was in this thread that defeated the MTC:  Cooling and Winter.  Well there is 1 thread Harry and that is from 4 years ago.

Here is a direct quote that supports my point(s):

"I thought the mere fact I had filed arb, and showed up in court was going to make them give up. it didn't . Looking back at older posts, Clydesmom was absolutely right, she had mentioned immediate Trial, I just didn't remember that fact. And, I didn't think it was likely, since I thought since I filed arb, and had shown up, it was highly unlikely they would put up a fight at this point, for a small case like mine, I was wrong. Again, my fault, sure...people did tell me though that I was very likely to win, just fighting in the first place...."

I didn't tell this OP that they were likely to win just fighting in the first place but several others sure did.  My stance has always been and always will be you need to be prepared for as many possible circumstances as reasonable.  First you get what you want easy peasy.  Second short fight.  Third long hard fight.  Assuming it will be easy and done is the fastest way to a loss.

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Oh my god, I just saw more paperwork issues. Those two bills of sale that I thought were duplicates, actually are not. One says the account was sold BEFORE charge-off, the other says the account was sold AFTER charge-off. Both on the same day, both with the same data file name. Yea, I'm really excited to get this in front of a lawyer.

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30 minutes ago, Clydesmom said:

Well there is 1 thread Harry and that is from 4 years ago.

Ok, and my name appears where in that thread? 

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