Being Sued By Midland Funding In Georgia

[mmatt93]

Hello everyone, 

I am being sued by Midland Funding in Georgia and they are being represented by

Aldridge, Pite, Haan, llp. I would like to defend myself against this case and hopefully get it dismissed. I was served on August 11th and know I need to file an Answer within 30 days. Any help or advice people can offer is greatly appreciated.

 

1. Who is the named plaintiff in the suit? Midland Credit Management, Inc as assignee of CITIBANK, N.A

2. What is the name of the law firm handling the suit? ALDRIDGE,PITE, HAAN LLP 

3. How much are you being sued for? 4036

4. Who is the original creditor? CITIBANK, Costco citi visa cc.

5. How do you know you are being sued? (You were served, right?)  Served by local sheriffs office

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

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? One letter from mail maybe 6 months prior.

9. What state and county do you live in? Georgia

10. When is the last time you paid on this account? Approx 2.5 years

11. What is the SOL on the debt? 6 Years

12. What is the status of your case? Suit served? Motions filed?  Served by deputy sheriff, no action taken or contact with lawyer.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes last year

14. Did you request debt validation before the suit was filed? No

15. How long do you have to respond to the suit? 30 days. Served on the 8/11/2020

16. What evidence did they send with the summons?

A. Top page of a statement showing the amount owed with my name and address..

B. Bill of Sale And Assignment between citi and mom.

C. Costco Fresh Flow Transfer document showing SALE ID. a second page that lists my name, address and amount. Amount on page shows 4100, being sued for 4036?

[BV80]

@mmatt93

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/?ct=1597359956

 

[Clydesmom]

2 hours ago, BV80 said:

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/?ct=1597359956

Except CITI has a carve out for small claims court and Magistrate Court in GA IS small claims and goes up to $15k.

4 hours ago, mmatt93 said:

I would like to defend myself against this case and hopefully get it dismissed.

What is your legal basis for filing a motion to dismiss?

Is this case in Magistrate Court?  What county are you in?

[mmatt93]

My argument was to just deny that they own the debt and that the amount is incorrect. Based on what they sent me I dont really see how it proves much of anything. But im here asking for advice so you tell me?

They have to prove its my debt and that they actually own it. Isn't that how it works?

 

Yes magistrate court and Forsyth County.

[LaneBlane]

2 hours ago, mmatt93 said:

My argument was to just deny that they own the debt and that the amount is incorrect. Based on what they sent me I dont really see how it proves much of anything. But im here asking for advice so you tell me?

They have to prove its my debt and that they actually own it. Isn't that how it works?

A. Top page of a statement showing the amount owed with my name and address: Is this a CITI statement or a statement generated by someone else?

B. Bill of Sale And Assignment between citi and mom:  Do you mean a Bill of Sale and Assignment between CITI and Midland?  Does this document identify you or your account number at all?  Is there any mention of Costco Fresh Flow?

C. Costco Fresh Flow Transfer document showing SALE ID. a second page that lists my name, address and amount. Amount on page shows 4100, being sued for 4036?:  Does this transfer document also reference CITI?  More importantly, is your account number included anywhere on either page?

[Clydesmom]

2 hours ago, mmatt93 said:

Yes magistrate court and Forsyth County.

The good news is that Forsyth is one of the 3 largest counties and is run more by actual Judges than good ole boys who are elected.  The bad news is the law firm is well respected and experienced in debt cases and Magistrate Court does not allow discovery and is trial by ambush.

2 hours ago, mmatt93 said:

Based on what they sent me I dont really see how it proves much of anything.

The problem is Magistrate Court does not require they send you anything so they are already ahead of the game.  Georgia also amended their business records laws almost 10 years ago and with an affidavit all of what they sent you is admissible at trial.  Since discovery is not allowed you cannot send an RFP or demand documents.  You do need to watch for a letter from the law firm stating you can come examine their documents at a specified location because if you do not take advantage of that it is also waiving the right to object to them as evidence under the GA records laws.  While they may have sent you just a few pages to show you they own the debt that does not mean that is all they have or will have on the day of trial.

You can still attempt a motion to compel arbitration and silently pray that they don't know or see that the card agreement has a small claims carve out. The worst that happens is they do and the MTC is denied.  Keep in mind that there is no delay they proceed right to trial.  What happens is they call your case and once they determine both parties are present you are sent to the hallway to see if you can "work it out" if you can't then the Magistrate hears the case when you return to the court room.  In the hallway is when you could attempt to argue for arbitration.  If the lawyer agrees you both tell the Magistrate and he/she signs your motion.  If they disagree then the Magistrate decides who prevails you or them.  You have to have a convincing argument why your motion should be granted and that exclusion clause does not apply under the law.  

3 hours ago, mmatt93 said:

They have to prove its my debt and that they actually own it. Isn't that how it works?

In general yes.  However, you can't just stand there and say they don't own the debt and the amount is wrong.  You have to have legal arguments as to why their evidence is not sufficient to prove they own the debt and the amount is wrong.  If they have statements that have your name on them and have your correct address how will you dispute that the debt isn't yours?  Under GA business records laws the standard is not that high to prove they own it and you owe it.  The pre-recession days of simply saying "not mine" and them not having any paperwork are long gone.  

[mmatt93]

33 minutes ago, Clydesmom said:

The good news is that Forsyth is one of the 3 largest counties and is run more by actual Judges than good ole boys who are elected.  The bad news is the law firm is well respected and experienced in debt cases and Magistrate Court does not allow discovery and is trial by ambush.

The problem is Magistrate Court does not require they send you anything so they are already ahead of the game.  Georgia also amended their business records laws almost 10 years ago and with an affidavit all of what they sent you is admissible at trial.  Since discovery is not allowed you cannot send an RFP or demand documents.  You do need to watch for a letter from the law firm stating you can come examine their documents at a specified location because if you do not take advantage of that it is also waiving the right to object to them as evidence under the GA records laws.  While they may have sent you just a few pages to show you they own the debt that does not mean that is all they have or will have on the day of trial.

You can still attempt a motion to compel arbitration and silently pray that they don't know or see that the card agreement has a small claims carve out. The worst that happens is they do and the MTC is denied.  Keep in mind that there is no delay they proceed right to trial.  What happens is they call your case and once they determine both parties are present you are sent to the hallway to see if you can "work it out" if you can't then the Magistrate hears the case when you return to the court room.  In the hallway is when you could attempt to argue for arbitration.  If the lawyer agrees you both tell the Magistrate and he/she signs your motion.  If they disagree then the Magistrate decides who prevails you or them.  You have to have a convincing argument why your motion should be granted and that exclusion clause does not apply under the law.  

In general yes.  However, you can't just stand there and say they don't own the debt and the amount is wrong.  You have to have legal arguments as to why their evidence is not sufficient to prove they own the debt and the amount is wrong.  If they have statements that have your name on them and have your correct address how will you dispute that the debt isn't yours?  Under GA business records laws the standard is not that high to prove they own it and you owe it.  The pre-recession days of simply saying "not mine" and them not having any paperwork are long gone.  

So there's basically not much I can do? If I can't get arbitration I just lose? Someone else said maybe if I lose i could file an appeal for a higher court and file MTC there? Would that be an option?

[mmatt93]

1 hour ago, LaneBlane said:

A. Top page of a statement showing the amount owed with my name and address: Is this a CITI statement or a statement generated by someone else?

B. Bill of Sale And Assignment between citi and mom:  Do you mean a Bill of Sale and Assignment between CITI and Midland?  Does this document identify you or your account number at all?  Is there any mention of Costco Fresh Flow?

C. Costco Fresh Flow Transfer document showing SALE ID. a second page that lists my name, address and amount. Amount on page shows 4100, being sued for 4036?:  Does this transfer document also reference CITI?  More importantly, is your account number included anywhere on either page?

A. It appears to be a citi statement.

 

B. Yes a bill of sale and Assignment. The actual bill of sale and Assignment doesn't mention my name, account number, or costco fresh flow.

It refers the reader to an 'exhibit a'. On another page it shows 'exhibit a' which has the Costco fresh flow sale ID number.  This page also has no mention of my name or account number.

A third stand alone page that literally could've been typed up by anyone has all my account information and address on it and says 'exhibit b'.

[BV80]

7 hours ago, mmatt93 said:

So there's basically not much I can do? If I can't get arbitration I just lose? Someone else said maybe if I lose i could file an appeal for a higher court and file MTC there? Would that be an option?

No.  Once a case is lost in a lower court, the purpose of the appeals court is to review the trial court’s ruling.  It is not to try to get the case into arbitration when arbitration was not available in the first place.  

[BackFromTheDebt]

7 hours ago, mmatt93 said:

So there's basically not much I can do? If I can't get arbitration I just lose? Someone else said maybe if I lose i could file an appeal for a higher court and file MTC there? Would that be an option?

There is a TON of confusion on this board about this issue. 
 

In a nutshell, every state is different. Sometimes different counties in the same state can be different.  
 

My state, Wisconsin, has an automatic appeal from small claims to Circuit Court.  I happen to live in the most consumer friendly county in the state.  There was a recent case on this board I advised a poster from my county.  She lost her MTC in small claims court, used the automatic appeal, and won the MTC in Circuit Court.  
 

I don’t think that agreement had a small claims carve out, but I could be wrong.  
 

That was a particular case in  particular county in a particular state.  Not your case, not your county, not your state. 

[Clydesmom]

8 hours ago, mmatt93 said:

So there's basically not much I can do?

10 years ago it was a LOT easier to fight these cases based on lack of standing and wrong amounts.  That is because the JDBs only bought a spreadsheet of the debts NOT the supporting account documents to sustain a suit.  Then after losing a lot of cases based on sites like this one and attorneys who some defendants hired challenging their lack of evidence they stepped up their game.  Now in the digital era where everything is on line when they purchase a pool of bad debts they get the digital files to support the account and they only need to print those off for the 10% that actually answer a lawsuit and show up to defend it.  The majority are still default judgments.

8 hours ago, mmatt93 said:

If I can't get arbitration I just lose?

There is always a chance they don't show.  There is always a chance the Judge isn't impressed with their documents but you have to make the argument LEGALLY why their documents are not sufficient.  This not easy since GA reduced the stringency of their business records laws.  There is NO harm in defending yourself other than losing the suit.  Once they sued you faced the risk of losing under any circumstance.

1 hour ago, BV80 said:

No.  Once a case is lost in a lower court, the purpose of the appeals court is to review the trial court’s ruling.  It is not to try to get the case into arbitration when arbitration was not available in the first place.  

Not in GA.  In GA it is a trial de novo so the MTC would be possible.

8 hours ago, mmatt93 said:

Someone else said maybe if I lose i could file an appeal for a higher court and file MTC there? Would that be an option?

Yes,  In GA this is an option as an appeal of the Magistrate Court ruling is a trial de novo meaning it is started all over it does not just rule on the errors you allege the court made.  The appeal would be to state court which would allow a MTC.  The one problem with the trial de novo appeal is it is very possible they require you to post an appeal bond in the entire amount awarded in Magistrate Court so that if you lose again the Plaintiff gets paid.  This is supposed to eliminated frivolous appeals.

[mmatt93]

19 minutes ago, Clydesmom said:

There is always a chance the Judge isn't impressed with their documents but you have to make the argument LEGALLY why their documents are not sufficient.  This not easy since GA reduced the stringency of their business records laws.

I just want to get out of this the cheapest way possible for me. Ive considered calling the attorney and seeing if they will settle with me now. 

 

I'm really have no idea what I'm doing, do you have anything I can read that explains their new business law and what is considered sufficient evidence? Im trying to find a weakness in my case. Maybe you know a lawyer in the area that does a free consultation to look at my case just to tell me my options?

I appreciate the help but I really dont want to just fold to these kinds of peoples.

[LaneBlane]

9 hours ago, mmatt93 said:

A. It appears to be a citi statement.

 

B. Yes a bill of sale and Assignment. The actual bill of sale and Assignment doesn't mention my name, account number, or costco fresh flow.

It refers the reader to an 'exhibit a'. On another page it shows 'exhibit a' which has the Costco fresh flow sale ID number.  This page also has no mention of my name or account number.

A third stand alone page that literally could've been typed up by anyone has all my account information and address on it and says 'exhibit b'.

My own case had the same type of "Exhibit B" document.  It included an account number that didn't even match mine.  If the information on your document is accurate, the documents seem as though they'd be more than sufficient to prove ownership of the account with an affidavit.  As Clydesmom pointed out earlier, they may have even more information on the trial date.

Before you attempt to reach a settlement you should determine how much you're willing and able to afford before you pick up the phone.

 

[mmatt93]

11 minutes ago, LaneBlane said:

My own case had the same type of "Exhibit B" document.  It included an account number that didn't even match mine.  If the information on your document is accurate, the documents seem as though they'd be more than sufficient to prove ownership of the account with an affidavit.  As Clydesmom pointed out earlier, they may have even more information on the trial date.

Before you attempt to reach a settlement you should determine how much you're willing and able to afford before you pick up the phone.

 

I dont have a lump sum for them unfortunately. I could make payments but thats about it.

[mmatt93]

If I try to compel arbitration and they catch the small claims cutout. Could I argue that the clause was only intended for citi? Perhaps based on another judges ruling like this?

https://www.law.com/njlawjournal/2020/02/28/debt-collector-cant-piggyback-on-citibanks-arbitration-agreement-judge-rules/?slreturn=20200714115139

1 hour ago, Clydesmom said:

LEGALLY

 

[BV80]

2 hours ago, Clydesmom said:

Not in GA.  In GA it is a trial de novo so the MTC would be possible.

No, it would not be possible.  While the merits of the case would be heard de novo, the fact is that the original claim was in magistrate court in which arbitration was not possible.  An appeal does not change that fact.  It does not change the type of court in which the claim was originally filed.  

If one could compel arbitration simply by appealing a small claims court ruling, the small claims exception would be useless.  

For instance, appealing from magistrate court to a higher court would not change the rules that applied to the lawsuit.  The rules that applied would be the magistrate court rules.  If a party appealed because certain documentation was not attached to the complaint that he thought should be attached, the superior court would refer to the magistrate court rules to determine what should be attached to the complaint.  That appeal to superior court would not change the fact that the lawsuit was originally filed in magistrate court.  

[BV80]

51 minutes ago, mmatt93 said:

If I try to compel arbitration and they catch the small claims cutout. Could I argue that the clause was only intended for citi? Perhaps based on another judges ruling like this?

https://www.law.com/njlawjournal/2020/02/28/debt-collector-cant-piggyback-on-citibanks-arbitration-agreement-judge-rules/?slreturn=20200714115139

 

No.  That case was based on the ability of an assignee to compel arbitration.   The court said this:

”The arbitration provision of the Cardholder Agreement is unequivocal: it expressly permits only Citibank or Plaintiff to compel arbitration, but permits either of those parties to have other claims included in arbitration.” 

The court ruled the agreement did not specify that an assignee could compel arbitration.

The clause to which you are referring in your agreement states that cases filed in small claims are not subject to arbitration.  That means neither party, not you or the other party, can compel arbitration.  

[Clydesmom]

2 hours ago, mmatt93 said:

Maybe you know a lawyer in the area that does a free consultation to look at my case just to tell me my options?

Skaar and Feagle do great work and will do a first consult free.  CALL do not email.  You can probably speak to someone today.