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Sued by LVNV Funding/Stenger and Stenger


Gehen
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Hello, hope today finds you well.

After researching a little bit on this JDB I think some of you are somewhat familiar with Stenger. As a JDB they purchased old debt from Credit One, and last week I was handed papers being sued by the plaintiff for about $1800. Now there's a lot of details regarding this whole affair and its definitely well over my simple head. However, after some initial browsing the best move for me is to seek arbitration.

According to the original creditor, Credit One, this is something I can do and the arbitrator is AAA. At this point, I have a basic idea of what I need to do, I just need some help along the way.

First and foremost I want to respond to this suit, I can do so in writing or in person. My first question is, if I can do so in writing, am I allowed to mail my response? Or, do I need to physically show up to the court (this is in GA by the way)?

From there, it seems like it's a matter of getting the whole arbitration affair going and seeing if I can either settle or get the plaintiff to dismiss or however that works.

Of course, I'm an absolute dunce, so if you need more details or whatever else, I'll provide as best as possible. Thanks in advance for your time/help.

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5 hours ago, Gehen said:

According to the original creditor, Credit One, this is something I can do

Except in cases that are in small claims court. Credit One has a carve out exempting all cases filed in small claims court from the arbitration provision.  Essentially their debt collection cases.  If you are being sued in Magistrate Court in GA then that is small claims and the carve out would apply.  That means you will have to defend the suit.

5 hours ago, Gehen said:

My first question is, if I can do so in writing, am I allowed to mail my response?

You would need to call the clerk and ask.  With the covidiocy it isn't possible to determine what their policies are now without contacting them.

5 hours ago, Gehen said:

Or, do I need to physically show up to the court (this is in GA by the way)?

The court in most counties has a pre-printed answer form that you can simply check off "deny" and hand it to the clerk.  They stamp it received and give you your copy and you are on your way.  They notify you by mail within 30 days of when the trial is set for.

5 hours ago, Gehen said:

From there, it seems like it's a matter of getting the whole arbitration affair going and seeing if I can either settle or get the plaintiff to dismiss or however that works.

Not exactly.  You need a copy of the card agreement from the year you defaulted.  You could try to argue a MTC (you do NOT file it in advance. Magistrate Court does not allow this) and hope they don't notice the carve out but you need to be prepared that they do notice and you have to defend the suit because it is trial by ambush and if the motion is denied they will proceed to hear the case immediately.

5 hours ago, Gehen said:

Of course, I'm an absolute dunce, so if you need more details or whatever else, I'll provide as best as possible.

What county is this suit in?

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Thanks for the response!

already good info, yeah so this is the magistrate of Bulloch County GA, so according to you that is small claims. In that case, I don't know if I still have an option for arbitration (I'm already a little confused by what 'carve out' implies). However, doesn't sound like it's possible.

If I can't arbitrate then it sounds like my options are to "defend" against the suit. And TBH while I'd be willing to try and deal with a JDB I don't think I'd have much luck trying to say to a court the debt isn't mine. I feel like settling for an amount would be better?

 
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Here is a copy of a Credit One Bank arb clause. it says: “This agreement to arbitrate provides that you or we can require controversies or disputes between us to be resolved by BINDING ARBITRATION. You have the right to REJECT this agreement to arbitrate by using the procedure explained below”... “If you do not reject this agreement to arbitrate, you GIVE UP YOUR RIGHT TO GO TO COURT and controversies or disputes between us will be resolved by a NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY”...

That being said, if this specific clause is in your agreement then they can't even sue you in small claims because if, you did not reject the arb clause then you waive the right to go to court. if it were me personally and this was the proper clause i would file a dismissal. 

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6 hours ago, Robby8900 said:

i would file a dismissal. 

You would lose.  GA Magistrate does not allow this and you REALLY need to stop giving advice given your lack of knowledge of that state/court and procedures. Magistrate Court has VERY specific rules and trying to go outside them is a rubber stamp to a judgment.

23 hours ago, Gehen said:

this is the magistrate of Bulloch County GA, so according to you that is small claims.

Okay, so problem one is that is one of the rural "good ole boys" courts.  Chances of defeating it at trial are not good. The good news is you can settle at any point.  Here is what I would do:

First ignore @Robby8900 as he has NO legal knowledge of GA, Magistrate Court or the procedures. I doubt he could even find GA or Bulloch County on a map.

Next:  Get the pre-printed answer form and check "deny" and file it with the court clerk.  They will mail you a trial date that will be within 30-60 days.  Search the GA threads on this board specifically for arbitration and there are a few out there that have an example of a MTC for GA Magistrate Court.  Type one up following the same format but using the information specific to your case.  Have 3 copies ready for the day of trial.  DO NOT attempt to file them in advance.  Magistrate Court does not allow this.  It is all done on the day of trial.  

Presuming the trial is in person at the court (if the court clerk tells you they are done remotely due to covidiocy update this thread and we will develop an altered plan) The day of trial either the lawyer will approach you before trial in the hallway or the Magistrate will send both of you out to the hallway to attempt to settle it.  THIS is when you tell the lawyer you are prepared to file the MTC with the court and hand him/her one copy.  If you are lucky they won't look at the card agreement and won't object.  Then you both approach the Magistrate and say you both agree to it, the Magistrate signs it and you are done to move on with the rest of the arbitration model.  If they have encountered this before and fight back or ignore it and stick to the script of trying to get you to agree to a settlement you stand firm and refuse.  Then you both will return to the Magistrate and the case will be heard immediately.  You then would need to argue to the Magistrate why your MTC should be granted.  Have case law to back up any arguments. Case law must be from GA not another state as anything outside of GA is not binding.   If this is a good ole boy court the Magistrate will either listen patiently and find against you or will be a jerk and find against you.  If you do get hit with a judgment then you can appeal to State Court and it is a trial de novo which means you start over from step one.  You can do a MTC again at that level.  The only wrinkle is an appeal bond in the amount of the verdict might be required.  If you do get hit with a judgment (not one you agree to) let us know and we can tell you how to protect assets while you come up with a settlement plan.  

You also need to watch for a letter from the Plaintiff offering you the chance to go to their office to see their evidence.  Magistrate Court does not allow discovery and if you do not take advantage and go look at their documents you lose your right to object to their evidence.

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7 hours ago, Robby8900 said:
 

Here is a copy of a Credit One Bank arb clause. it says: “This agreement to arbitrate provides that you or we can require controversies or disputes between us to be resolved by BINDING ARBITRATION. You have the right to REJECT this agreement to arbitrate by using the procedure explained below”... “If you do not reject this agreement to arbitrate, you GIVE UP YOUR RIGHT TO GO TO COURT and controversies or disputes between us will be resolved by a NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY”...

That being said, if this specific clause is in your agreement then they can't even sue you in small claims because if, you did not reject the arb clause then you waive the right to go to court. if it were me personally and this was the proper clause i would file a dismissal. 

It says “we CAN require”.  It does not say “will require”.   

Then later in the agreement, “Claims Not Covered: Claims (whether brought initially or by counter or cross-claim) are not subject to arbitration if they are filed by you or us in a small claims court, so long as the case remains in such court and only individual claims for relief are advanced in the case.”

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3 hours ago, BV80 said:

It says “we CAN require”.  It does not say “will require”.   

Then later in the agreement, “Claims Not Covered: Claims (whether brought initially or by counter or cross-claim) are not subject to arbitration if they are filed by you or us in a small claims court, so long as the case remains in such court and only individual claims for relief are advanced in the case.”

“If you do not reject this agreement to arbitrate, you GIVE UP YOUR RIGHT TO GO TO COURT and controversies or disputes between us will be resolved by a NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY”...

I believe that  covers a judge in small claims court too.  All the more reason to MTD on the basis of not rejecting the arb clause. 

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5 minutes ago, Robby8900 said:

“If you do not reject this agreement to arbitrate, you GIVE UP YOUR RIGHT TO GO TO COURT and controversies or disputes between us will be resolved by a NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY”...

I believe that  covers a judge in small claims court too.  All the more reason to MTD on the basis of not rejecting the arb clause. 

You give up your right to go to court IF they choose to arbitrate.   Again, it states they CAN require you to arbitrate.  It does NOT say they WILL require you to arbitrate.  The word “can” means arbitration is optional unless one party chooses it. 

And, again, you are ignoring the small claims exception.   It clearly excludes small claims from arbitration.  That exclusion cannot be ignored.   

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5 hours ago, Clydesmom said:

Get the pre-printed answer form and check "deny" and file it with the court clerk.  They will mail you a trial date that will be within 30-60 days.  Search the GA threads on this board specifically for arbitration and there are a few out there that have an example of a MTC for GA Magistrate Court Type one up following the same format but using the information specific to your case.  Have 3 copies ready for the day of trial.  DO NOT attempt to file them in advance.  Magistrate Court does not allow this.  It is all done on the day of trial.  

Lots of information so gotta process it. Doesn't sound like the arbitration thing holds up.

Alright, so step 1 is to find the forms you're referring to here on this website, dabble with some info pertaining to my case, and give that to the clerk. The suit mentions I can file my response in writing so that works.

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49 minutes ago, Gehen said:

Alright, so step 1 is to find the forms you're referring to here on this website, dabble with some info pertaining to my case, and give that to the clerk.

No.  Go to the Magistrate Court and they have the forms to file your answer denying their claims.  You can read about it here:  Magistrate Court Bulloch County  You only have to check off "deny" no other information is required.

File the answer this week.  The good news is the court is closed until March 29th due to the pandemic.  You need to file a timely answer to they don't get a default judgment.  Then NOTHING will happen until next year.  You should get a letter from the court explaining this.

Your card agreement does not make arbitration possible per the terms.  HOWEVER, you could type up the MTC and hope that lawyers don't read the card agreement or object.  If that happens you get what you want.  If they do know about it and object you are no worse off than if you don't try it.

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5 hours ago, Clydesmom said:

File the answer this week.  The good news is the court is closed until March 29th due to the pandemic.  You need to file a timely answer to they don't get a default judgment.  Then NOTHING will happen until next year.  You should get a letter from the court explaining this.

Wow, the only "positive" thing about COVID in my case. Okay, I'll do that this week. And yeah I've got time, I was issued the suit on the 21st of October but wanted to make sure my response was accurate. I'll give your link a read (thanks!).

Obviously there's a lot of layers and steps and I feel like I could easily make a mistake, so, with your corrections it's:

1. Go to the magistrate court

2. Request or get the forms you mentioned regarding my case and tick off deny

3. With that situated I guess wait until March

I'll do that this week and then post an update here, appreciate the help so far.

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  • 2 months later...

Alright, so, my court date is indeed set for March like suggested before. While I've denied the claim, I don't know what kind of defense path I can really take. If I show up to court and assert the debt isn't mine, that'll be proven false pretty easily.

Unless there's some other ace in the hole, I feel like my best option is to settle for less than the amount.

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2 hours ago, Gehen said:

Alright, so, my court date is indeed set for March like suggested before. While I've denied the claim, I don't know what kind of defense path I can really take. If I show up to court and assert the debt isn't mine, that'll be proven false pretty easily.

Unless there's some other ace in the hole, I feel like my best option is to settle for less than the amount.

You can settle any time prior to trial.  The more of a lump sum you have the more likely they are to settle.  I would offer $600 to settle this in full right now and see if they jump.  

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3 hours ago, Clydesmom said:

You can settle any time prior to trial.  The more of a lump sum you have the more likely they are to settle.  I would offer $600 to settle this in full right now and see if they jump.  

Oh cool, that's definitely doable (good number too, I was initially thinking of offering half).

For settlement offers, I wager it's best to have it in writing, and if I make an offer should I send it to the court or the one's suing me?

Thanks for the help so far.

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  • 3 weeks later...

As an update, I mailed a settlement letter to Stenger, and tried to be "fair" but keep the terms appropriate. Basically it's a flat $600 offer for immediate pay but only if they agree - in writing - that they accept the deal and inform the courts (or however that goes). We'll see where it goes.

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Hang on, this might be critical, I never noticed it:

The plaintiff is listed as LVNV Funding "as successor to the interest of credit," and underneath is Stenger and Stenger. Does that mean I should be dealing with LVNV instead?

Also, isn't Stenger and Stenger based in Michigan? I don't know much about law but don't you need to be in the same state to file a civil case of that state? 

Edit: Yeah, double checking Credit One sold the debt off to three collectors, none of which mention Stenger and Stenger (but apparently S and S file together with LVNV?) Just seems weird that a Michigan based entity could do this. What am I missing?

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2 hours ago, Gehen said:

Hang on, this might be critical, I never noticed it:

The plaintiff is listed as LVNV Funding "as successor to the interest of credit," and underneath is Stenger and Stenger. Does that mean I should be dealing with LVNV instead?

Also, isn't Stenger and Stenger based in Michigan? I don't know much about law but don't you need to be in the same state to file a civil case of that state? 

Edit: Yeah, double checking Credit One sold the debt off to three collectors, none of which mention Stenger and Stenger (but apparently S and S file together with LVNV?) Just seems weird that a Michigan based entity could do this. What am I missing?

LVNV is the plaintiff and party that is suing you.  Stenger & Stenger is the law firm hired by LVNV to represent LVNV in court.  If you wanted to sue someone, you could hire an attorney to represent you.  You would be named as the plaintiff, but your attorney would do all the work (prepare the complaint, discovery, motions, filing, etc.) and stand up for you in court.

You do not contact LVNV.  When a party is represented by an attorney, you contact that attorney.

It doesn’t matter that S&S is based in Michigan.  They may have an office in Georgia, or they can hire a Georgia attorney to appear in their place.  If you check the law firm’s website, it has has an attorney licensed in Georgia.

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I had a similar situation with LVNV. Except they used a different law firm and filed in Texas. I filed a motion to compel, they received it and sent me an email saying they don't have to arbitrate. Back and forth emails for a day or two, then they dismissed it themselves. Have you got any counter claims you could use against them? If so, dismissal should be fairly easy to get.

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5 hours ago, alwayswinning36 said:

Have you got any counter claims you could use against them? If so, dismissal should be fairly easy to get.

NOT in GA Magistrate Court.  It is VERY VERY different than Texas.  Magistrate Court does not allow discovery or motions to be filed in advance.  It is trial by ambush and all your advice will do is fast track the OP to a summary judgment.  

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Okay, thanks for the clarification. I wanted to know just in case I missed something and also if I made my settlement offer it had gone to the right entity (mine I originally mailed to Stanger and Stenger as listed on the papers). 

14 hours ago, BV80 said:

LVNV is the plaintiff and party that is suing you.  Stenger & Stenger is the law firm hired by LVNV to represent LVNV in court.  If you wanted to sue someone, you could hire an attorney to represent you.  You would be named as the plaintiff, but your attorney would do all the work (prepare the complaint, discovery, motions, filing, etc.) and stand up for you in court.

You do not contact LVNV.  When a party is represented by an attorney, you contact that attorney.

It doesn’t matter that S&S is based in Michigan.  They may have an office in Georgia, or they can hire a Georgia attorney to appear in their place.  If you check the law firm’s website, it has has an attorney licensed in Georgia.

 

8 hours ago, Clydesmom said:

NOT in GA Magistrate Court.  It is VERY VERY different than Texas.  Magistrate Court does not allow discovery or motions to be filed in advance.  It is trial by ambush and all your advice will do is fast track the OP to a summary judgment.  

Yeah it's definitely very predatory in nature, or feels like. Am I wrong? I even looked up garnishment laws and Kemp unsurprisingly changed them to benefit JDBs and the like.

Also, I'm considering resending the first settlement letter because haven't heard back, but this time with priority tracked mail so 1 I know they got and 2 I can track it.

Another question, in the event they ignore the offer and I show up to court date they have a process to settle before the trial begins. If I make the settlement offer there and reject it, what do you think I'd expect? That they'd win a judgment for the full amount? My only defense in that situation is that I'm pretty poor most of the time (something I'm easily able to prove). Given the parasitic nature of the whole thing I doubt they'd sympathize but it's the only thing I've got in my corner.

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45 minutes ago, Gehen said:

Yeah it's definitely very predatory in nature, or feels like. Am I wrong?

You are not wrong.

46 minutes ago, Gehen said:

Also, I'm considering resending the first settlement letter because haven't heard back, but this time with priority tracked mail so 1 I know they got and 2 I can track it.

Just call.  All you need to say is that in the interest of moving on you are offering $X amount to settle in full right now.  If they agree you can send a settlement document or they can draft one (make sure ALL terms are included such as the remaining amount is disputed, they agree not to sell any disputed balance, and will delete their trade line) make sure to pay with a money order.  DO NOT give bank account access.  You can always mail it to the lawyer with tracking since your date isn't until March.  Which ever you are comfortable with.

48 minutes ago, Gehen said:

Another question, in the event they ignore the offer and I show up to court date they have a process to settle before the trial begins.

First thing that happens is both of you will be sent to discuss the case and see if you can settle it on your own even if you didn't want to settle.  Standard MC procedure.  If you reach an agreement you both tell the court:  case dismissed or stayed until you complete the settlement process.  If you do not reach an agreement then your one way to fight is to dispute their evidence.   Under GA business records law they are supposed to send you a letter giving you the opportunity to examine any documents they intend to use as evidence at trial.  If they didn't do that I would object to all their "evidence" as hearsay based upon not complying with that law and Magistrate Court not allowing discovery.  I haven't tried that but the worst that happens is the Judge says no.  In the good ole boys network they may just slam the gavel for LVNV and then the Magistrate and the lawyer go to lunch or go fishing together.  The good news is Georgia allows for a trial de novo on appeal from Magistrate Court.  It will take them a bit of time to get a wage garnishment order.  Make sure you are "unbanked" meaning you don't keep any money in an account they could levy.  The appeal trial de novo means it is a complete do over.  I would file an appeal and make them want to settle because with the trial de novo in State Court you could then file the MTC arbitration.  

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23 minutes ago, Clydesmom said:

You are not wrong.

Just call.  All you need to say is that in the interest of moving on you are offering $X amount to settle in full right now.  If they agree you can send a settlement document or they can draft one (make sure ALL terms are included such as the remaining amount is disputed, they agree not to sell any disputed balance, and will delete their trade line) make sure to pay with a money order.  DO NOT give bank account access.  You can always mail it to the lawyer with tracking since your date isn't until March.  Which ever you are comfortable with.

First thing that happens is both of you will be sent to discuss the case and see if you can settle it on your own even if you didn't want to settle.  Standard MC procedure.  If you reach an agreement you both tell the court:  case dismissed or stayed until you complete the settlement process.  If you do not reach an agreement then your one way to fight is to dispute their evidence.   Under GA business records law they are supposed to send you a letter giving you the opportunity to examine any documents they intend to use as evidence at trial.  If they didn't do that I would object to all their "evidence" as hearsay based upon not complying with that law and Magistrate Court not allowing discovery.  I haven't tried that but the worst that happens is the Judge says no.  In the good ole boys network they may just slam the gavel for LVNV and then the Magistrate and the lawyer go to lunch or go fishing together.  The good news is Georgia allows for a trial de novo on appeal from Magistrate Court.  It will take them a bit of time to get a wage garnishment order.  Make sure you are "unbanked" meaning you don't keep any money in an account they could levy.  The appeal trial de novo means it is a complete do over.  I would file an appeal and make them want to settle because with the trial de novo in State Court you could then file the MTC arbitration.  

Gotcha - I think my reluctance to call was always being wary of debt collectors and how they collect info but this has moved beyond that. I'll definitely just call then. Also yeah, I asked if it was predatory because I thought about detailing my typical financial hardship in the sense maybe they'd be reasonable, but there's this inherent sense of malice to the whole thing (even the clerk I talked to sounded like she wanted me to just admit the debt was mine right there and then a few months back). So, going to court and trying to say "I'd like to resolve this but it would be difficult" doesn't sound like it would yield anything useful for me.

The funny thing is I don't MIND resolving debt, I'd like to be fiscally responsible, but these guys just sound like unsympathetic trash and the law isn't really on my side here, just a tool to hurt me.

Garnishment is definitely what I'd prefer to avoid as it creates even more complications and that would require me moving money out of an account, and the way I get paid with everything is electronic. 

In that call, would you recommend I offer on the phone the first amount ($600 aka 30 percent) or just say "I'd like to settle to move forward for an amount that is reasonable."

600 seems good but my gut it is telling me they'll want to aim for half.

Oh, one last thing - when/if I settle, does that give them the tools to garnish wages or anything? Or, is it just our agreement I pay the x amount and if they wanted to use legal tools against me they'd have to go to court all over again?

Thanks for your help so far and answering my questions. Researching this has been pretty hard and I know they rely on that to prey on people.

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17 hours ago, Gehen said:

So, going to court and trying to say "I'd like to resolve this but it would be difficult" doesn't sound like it would yield anything useful for me.

Settlement discussions are not admissible in court so you have nothing to lose.  MANY litigants in all kinds of cases simply settle because it is easier and less expensive and has no bearing on the merit of the claim.  When a Defendant settles such as a business after a frivolous case has been filed against them it doesn't mean they are admitting to what htey were sued for.  It is called "go away" money.  It is cheaper to throw some money at the Plaintiff and get them to go away than to fight the case even though they should.

17 hours ago, Gehen said:

I'd like to be fiscally responsible, but these guys just sound like unsympathetic trash and the law isn't really on my side here, just a tool to hurt me.

It isn't a tool to hurt you personally.  The reality is unless you have a legal defense to not paying then the law is clear and ties the Judge's hands.  While there are tons of sad circumstances that occur even without covidiocy the simple fact is if you didn't pay it doesn't matter how desperate your situation is the law is based on fact not emotion.

17 hours ago, Gehen said:

In that call, would you recommend I offer on the phone the first amount ($600 aka 30 percent) or just say "I'd like to settle to move forward for an amount that is reasonable."

Offer $600.  If they counter with something unreasonable decline and hang up and try again in a day or two.  Hold firm that this is what you can afford and if this can't be settled then there are other options available to consumers and hang up.  If they agree to 40% I would take it but you decide.

17 hours ago, Gehen said:

Oh, one last thing - when/if I settle, does that give them the tools to garnish wages or anything? Or, is it just our agreement I pay the x amount and if they wanted to use legal tools against me they'd have to go to court all over again?

NO.  If you settle you make sure the terms are that the lump sum you pay is the FULL and final settlement and any remaining amount is in dispute and not subject to collection.

15 hours ago, Gehen said:

I'm going to see if I can make the settlement offer this week and see if they'll budge. Is it possible they'll refuse and just try to go to court for the full amount?

ANYTHING is possible.  However, in these times my guess is that some money is better than no money.  

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