anonynonymous

Sued by JDB of Private Student Loan in GA County Magistrate Court - Next Steps?

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1. Who is the named plaintiff in the suit?

Jefferson Capital Systems, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Roosen, Varchetti & Olivier

3. How much are you being sued for?

Les than $5,000 including original claim and pre-suit interest. According to attached promissory note, original loan amount is less than half of what they're suing for. 

4. Who is the original creditor? (if not the Plaintiff)

Sallie Mae

5. How do you know you are being sued? (You were served, right?)

Yes 

6. How were you served? (Mail, In person, Notice on door)

In-Person at place of residence

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?

Some mailed letters to me over the years probably. I never established contact with them. 

9. What state and county do you live in?

Dekalb County, Georgia

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Unsure. Sometime in 2012 most likely. Maybe 2013. 

11. When did you open the account (looking to establish what card agreement may be applicable)?

Unsure. Promissory Note they included has digital signature and date of Fall 2010. 

12. What is the SOL on the debt? To find out:

6 years for written, 4 years for oral, 4-6 years for open-ended accounts. I think it's very possible they filed the claim right when the statute of limitations expired, but I don't know that I have any way of proving that. 

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

The date filed on the claim is Spring 2019 apparently. Was served this month and have some time to file an answer but need to do it soon. 

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-day timeframe

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

*Copy of Application and Promissory Note of Signature Student Loan signed & dated in 2010. Promissory note includes details of a Jury Trial Waiver and Arbitration Agreement. 

*1-page copy of Business Records Affidavit signed in 2019 in a different state by a custodian of record for Jefferson Capital Systems. This affidavit references the last four numbers of the alleged account, but I can't find anything in my records with these four numbers? Is this the account number assigned by Jefferson Capital or the original creditor Sallie Mae? Is there any way to prove they put down a random account number? 

*signed and dated Bill of Sale and Assignment. It references a charged-off account portfolio dated Summer 2013. No name or account number or other identifying information other than the date of the alleged charged-off portfolio. 

18.  How did you find out about this site?

Online

***

I would appreciate any input on the best way to proceed. My goal is to have the suit dismissed with prejudice, if possible. If this is an unreasonable expectation, please let me know. So far based on my research on this forum, I have gathered there are a couple of options available to me. I could: 

1) request arbitration to make their lives more difficult. I'm basing this on the jury trial waiver and arbitration agreement found in the promissory note papers they included as evidence (although those pages are copyrighted up to 2009, and the promissory note was signed and dated in 2010, if that makes any difference)

2) file my civil answer with the following affirmative defenses: 1. statute of limitations 2. lack of standing 3. failure to state a claim upon which relief may be granted 4. failure of consideration etc.

and/or 3) file a motion to strike the affidavit based on hearsay. 

Some questions I have are: 

Is it reasonable for me to try to have this suit dismissed instead of settling? What are my chances with the Dekalb County Magistrate Court system in this era of covid-19? Is SOL still a gray area with private student loans? How do I prove the SOL had already expired when the JDB filed suit, assuming very poor record-keeping on my end? Would it be better to file a motion to compel arbitration vs. filing a civil answer with affirmative defenses? Is there something I can read on the correct order of steps to take e.g. do I file the motion to strike the affidavit at the same time as my civil answer? If I request arbitration based on the promissory note, are there loopholes that allow the JDB to get out of the clause? What are the chances they actually agree to arbitration and drag me through it? Should I file my answer electronically vs dropping it off in person? 

Some other background info that may be pertinent to this complaint: This same JDB won a default judgment against me last year because I never showed up to the court date (by the time I got around to checking my mailbox, the court date on the notice had passed and it was too late). It was for a private student loan of a similar amount. Same county and state and handled by the same law firm that filed this claim. 

And thank you in advance for taking the time to look over my post. There is no way I can afford a lawyer right now or borrow the money for one--the timing of this suit couldn't be worse--but I'm trying to remain calm and proactive. (If safe to do so I can upload scans of the arbitration agreement that's in the promissory note they provided me). Thanks again! 

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Hello, OP here. I plan on filing my Answer this week and was hoping someone could chime in with their thoughts on whether I'm on the right track with regards to its content. My answer will include a denial of all claims and the following affirmative defenses: 1) lack of subject matter jurisdiction (my intent here is to file a Motion to Compel Arbitration on the day of the hearing in accordance with the arbitration clause found in the contract papers plaintiff included with their complaint) 2) lack of standing and 3) defendant reserves the right to amend and/or add additional answers, defenses, and or/counterclaims at a later date. 

Anything I should add or remove? I've spent so much time researching over the past few weeks my brain feels dizzy with information overload. I really hope I've got this right, but if for some reason I don't, please let me know if you're so inclined. Thank you! 

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I would do a fast consult with Skaar and Feagle.  CALL do not email.  They will most likely talk to you same day.  The SOL part needs to be investigate first because if it is beyond SOL then you have a gold plated defense and don't have to waste time with a MTC.

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