womanonfire

Pre and post lawsuit strategies in GA and elsewhere

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Firstly, this board and the knowledge of the posters on this subject is AMAZING! Major Kudos! 

Two of the questions the board asks a poster looking for help after being served are: 

Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Did you request debt validation before the suit was filed?  

Based on the experience of members of this board, is it recommended that all debt be disputed and specifically how? Through the bureaus? When any dunning letter is received by inside or outside collections? Both? In addition, and I settled a TCPA lawsuit in the past based on this, verbally advising and writing to a collector and telling them that I revoke permission to call my cellphone and that I preferred all future communications in writing. This seems like a prudent way to possibly create a countersuit for any debtor. Opinions? 

The reason that I ask is that it looks like in GA at least, all lawsuits under $15,000 are filed in Magistrate court which limits debtors in many ways. Shouldn't the specific strategy here outside of a MTC be a motion to remand if one were to pursue counter claims of any violations such as FCRA (OC), FDCPA and TCPA? Because a magistrate court can't answer a federal question and the case must be remanded to District court. 

I'm also not sure of this but can you raise a failure to mitigate damages defense in Magistrate? It's a bit confusing to me that you simply fill out a form and check the "deny" box and then argue that the debt is yours but raise other defenses at the immediate trial. 

Thoughts? 

 

 

 

 

 

 

 

 

 

 

 

 

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First off, you said last year that you were saving for BK. Are you still doing that?

As for tactics, it really depends on the creditor. Based on your list in the other thread, I believe that Citi has a small claims exemption in their arbitration and Cap One does not have one at all. The stalling tactic for those 2 organizations would be different than for one that has a nice arbitration clause in it.

As for disputing the debt, that is done with the JDB who sent you the first dunning letter and only within 30 days. After that, they don;t have to answer. This is based on the FDCPA. Now there are both pros and cons in doing debt validation and the opinions run the gambit on this board. Realize that validation under the FDCPA is a very low bar which can easily be reached and most JDBs can reach that these days so they simply send the validation and then move on to suit.

You can also try to create a counterclaim by trying to get them to violate the FDCPA, TCPA, or FCRA but JDBs are getting wiser to those tactics. If you tell them not to contact you by cellphone for example and there is no way to contact you, they might just file suit rather than calling again which is a legal way to avoid violating federal law. Same for disputes. They might even remove the credit line from your report before suing you so that you cannot claim FCRA.

I would suggest looking at Harry Sewards post in your other thread and consider following that. Otherwise, save up for BK ASAP and get that started.

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38 minutes ago, WhoCares1000 said:

First off, you said last year that you were saving for BK. Are you still doing that?

As for tactics, it really depends on the creditor. Based on your list in the other thread, I believe that Citi has a small claims exemption in their arbitration and Cap One does not have one at all. The stalling tactic for those 2 organizations would be different than for one that has a nice arbitration clause in it.

As for disputing the debt, that is done with the JDB who sent you the first dunning letter and only within 30 days. After that, they don;t have to answer. This is based on the FDCPA. Now there are both pros and cons in doing debt validation and the opinions run the gambit on this board. Realize that validation under the FDCPA is a very low bar which can easily be reached and most JDBs can reach that these days so they simply send the validation and then move on to suit.

You can also try to create a counterclaim by trying to get them to violate the FDCPA, TCPA, or FCRA but JDBs are getting wiser to those tactics. If you tell them not to contact you by cellphone for example and there is no way to contact you, they might just file suit rather than calling again which is a legal way to avoid violating federal law. Same for disputes. They might even remove the credit line from your report before suing you so that you cannot claim FCRA.

I would suggest looking at Harry Sewards post in your other thread and consider following that. Otherwise, save up for BK ASAP and get that started.

@WhoCares1000Thanks but I didn’t ask advice on what to do about my personal situation, I brought up a different topic of discussion. 
 

I’ve settled three lawsuits for FDCA and TCPA violations to the point where I got paid so I’m familiar with the law on those counts. I’m not familiar with magistrate court in GA however and specifically how to bring a failure to mitigate defense in that court. It’s out of curiosity at this point. ;) 
 

Tagging 

@Clydesmom

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4 hours ago, womanonfire said:

I'm also not sure of this but can you raise a failure to mitigate damages defense in Magistrate?

Have you been sued?  How would you use a failure to mitigate as a defense?

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6 minutes ago, womanonfire said:

It’s a hypothetical legal question. Should this be moved to another forum? 

No.  I was just wondering if you were using it as a defense to a credit card lawsuit.  

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9 minutes ago, BV80 said:

No.  I was just wondering if you were using it as a defense to a credit card lawsuit.  

I might in the future though. Reading the other threads here, looks like the chances are very good. And the way I look at it, knowledge is power, where or not it’s actually put to practice or not. 

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1 hour ago, womanonfire said:

I might in the future though. Reading the other threads here, looks like the chances are very good. And the way I look at it, knowledge is power, where or not it’s actually put to practice or not. 

A failure to mitigate damages is only a defense if you can prove a plaintiff failed to do what was necessary to avoid more damages.  It’s rarely a defense to a credit card debt.

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5 hours ago, womanonfire said:

I’m not familiar with magistrate court in GA however and specifically how to bring a failure to mitigate defense in that court.

Magistrate Court is trial by ambush.  Magistrate Court does not allow discovery.  Everything is conducted at the court in front of the magistrate on the day of trial.  Thanks to a change a couple of years ago in GA Business Records laws the Plaintiff only needs to send the Defendant a letter telling them when/where they can come and examine the evidence they intend to use in court.  If the Defendant does not take advantage of that opportunity they forfeit the right to object to the evidence at trial.

If MC is in a rural county it is a good ole boys network and a fast track to a judgment.  In the larger counties:  Fulton, Forsyth, Cobb and Gwinnett they are actual Judges with legal degrees who are relatively stable and more likely to listen to all the evidence before rendering a decision rather than ruling for their hunting buddy.

3 hours ago, womanonfire said:

Reading the other threads here, looks like the chances are very good.

Not in GA.  GA is very much a creditor friendly state.

2 hours ago, BV80 said:

A failure to mitigate damages is only a defense if you can prove a plaintiff failed to do what was necessary to avoid more damages.  It’s rarely a defense to a credit card debt.

The only legal situation I know of that requires an effort to mitigate damages is landlord tenant law.  If a landlord wishes to sue for the remainder of a lease when a tenant terminates early the landlord is required to mitigate their damages by re-renting as soon as possible at market rates.  They cannot "double dip" and collect rent for the remainder of the lease from first tenant and the rent from the new leasing tenant on the same time frame.  Failure to demonstrate to the court that the landlord advertised and showed the unit to at least a half dozen or more (depending on the amount of time involved) suitable qualified tenants and none rented will get a claim for rent tossed.

I know of no situation that requires an original creditor or JDB to mitigate their damages before suing a consumer.  In fact I would think they would counter with the Defendant is the one who defaulted and caused the damages and therefore should and could have been the one to mitigate the damage by not defaulting in the first place.  As @WhoCares1000said:  what do you think the bank should/could have done?  After all a consumer who has a credit card is using the account to purchase goods and services for their own benefit from other merchants not the bank.  The consumer reaped the benefits but the creditor gets the downfall of the default.  

Are you sure you are not confusing this with a laches defense?

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2 hours ago, Clydesmom said:

The only legal situation I know of that requires an effort to mitigate damages is landlord tenant law.  If a landlord wishes to sue for the remainder of a lease when a tenant terminates early the landlord is required to mitigate their damages by re-renting as soon as possible at market rates.  They cannot "double dip" and collect rent for the remainder of the lease from first tenant and the rent from the new leasing tenant on the same time frame.  Failure to demonstrate to the court that the landlord advertised and showed the unit to at least a half dozen or more (depending on the amount of time involved) suitable qualified tenants and none rented will get a claim for rent tossed.

I know of no situation that requires an original creditor or JDB to mitigate their damages before suing a consumer.  In fact I would think they would counter with the Defendant is the one who defaulted and caused the damages and therefore should and could have been the one to mitigate the damage by not defaulting in the first place.  As @WhoCares1000said:  what do you think the bank should/could have done?  After all a consumer who has a credit card is using the account to purchase goods and services for their own benefit from other merchants not the bank.  The consumer reaped the benefits but the creditor gets the downfall of the default.  

I know it’s been used in employment law.  For instance, a former employee who claims he was wrongfully terminated and is suing for lost wages must actively look for another job.  He can’t do nothing for months and claim lost wages for those months.  I’m sure there are other types of contract actions where it would apply.

When it comes to credit card debt, that’s the purpose of TILA.  It requires creditors to charge off an account within 6 months of a consumer’s failure to bring an account back to a current status.  That way the creditor can’t keep adding late fees.  
 

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Many credit card companies offer hardship programs. One particular CC declined me entry into the program because I didn't make enough money. Approving me for the program would have mitigated some damages. Is it a perfect argument and am I likely to win it? Probably not but it is indeed better than have no argument or defense at all. 

I suppose there is not a lot of experience here with filing a motion to remand or transfer venue in GA magistrate ct. otherwise someone might have posted about their experience or tagged a post where this occurred. But it is the strategy I will use for one particular creditor if I get sued and one I thought might be a good topic for discussion. 

As for federal violations, one could indeed attempt to manufacture a lawsuit to buy time or stall because it is true that a magistrate court can't answer a federal question. Being that I was a plaintiff in a lawsuit with a defendant that filed bankruptcy, I have experienced first hand how a defendant call stall things by filing multiple extensions and answering with a motion to dismiss, strategies that I don't think will work in magistrate ct. 

 

 

 

 

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A creditor is not required to take an unreasonable deal to "Mitigate Damages". If all you can afford is $50/month and the contract interest is adding $250/month, that really does not help anyone. Just as a landlord can prove that the only tenants that applied for his apartment were ones that it would not make business sense to accept. It will be up to the judge to decide if the hardship program was reasonable enough that the plaintiff should have accepted it. I doubt that in a creditor friendly state such as Georgia, you are going to be able to make much hay with this but you can try if you wish.

You could appeal the magistrate court decision and get a new trial in state or superior court. You had better know the rules of civil procedure however if you do that.

Yes, you can delay things depending on the contract (such as moving the case to arbitration if allowed). However, the question is what is the end game? You are hoping to wear the creditor down? Are you hoping to get enough saved for BK?

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5 hours ago, womanonfire said:

Many credit card companies offer hardship programs. One particular CC declined me entry into the program because I didn't make enough money. Approving me for the program would have mitigated some damages. Is it a perfect argument and am I likely to win it? Probably not but it is indeed better than have no argument or defense at all. 

Back in 2008 my brother and I had leased a house through a real estate agent only to discover the owner had already lost it in foreclosure after we moved in.  We had to fight the bank on being forced out because we were defrauded.  (we reached a settlement with BoA that included 6 months free rent) While waiting for our case to be heard the Judge in Gwinnett County made a very accurate and realistic statement to those waiting for court to start.  "You are all here because you are likely facing bad times.  While job loss, medical issues, reduced hours, car trouble etc. are all very real reasons to get behind on rent or bills they are not a legal defense to paying your rent or what you owe.  If you have not paid and do not have a valid LEGAL defense I encourage you to settle this quickly because the law is clear I must find for the Plaintiff."  We were the only ones who won that day because we had set our rent money in escrow once we found out what the "owner" had done.  BoA agreed we could keep the money to be able to secure another home and gave us 6 months to do so.  Had we not had a lawyer and that escrow account we might not have won.  We saw a LOT of people who had very sad stories of why they could not pay but still lost their case because it isn't a legal defense to defaulting.

There is NO requirement they grant you access to a hardship program.  There isn't even a requirement they have one.  You have nothing to lose by trying that defense but at best it might only shave a few bucks off the debt owed because all a hardship program does is reduce interest for a specified time period.  It does not allow a consumer to simply stop paying a credit card bill while still using the card.  You could get lucky and get a Judge that buys in to that defense but I would not pin my hopes on it.

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5 hours ago, womanonfire said:

I suppose there is not a lot of experience here with filing a motion to remand or transfer venue in GA magistrate ct. otherwise someone might have posted about their experience or tagged a post where this occurred. But it is the strategy I will use for one particular creditor if I get sued and one I thought might be a good topic for discussion. 

As for federal violations, one could indeed attempt to manufacture a lawsuit to buy time or stall because it is true that a magistrate court can't answer a federal question. Being that I was a plaintiff in a lawsuit with a defendant that filed bankruptcy, I have experienced first hand how a defendant call stall things by filing multiple extensions and answering with a motion to dismiss, strategies that I don't think will work in magistrate ct. 

You could show up to the Magistrate Court trial with a motion to remand to State Court.  Whether the court will grant it or not is another matter.  The case being in Magistrate Court does not prevent a counter claim for FDCPA violations.  The Plaintiff can waive federal jurisdiction and agree to remain in the lower court.  What the problem becomes is most if not all Judges at that level are unfamiliar with federal law.

Many pro-se litigants who have attempted to sue a creditor for FDCPA violations on their own in a State or District Court assuming they will settle have found out the hard way that it doesn't always go to the end in there.  Many creditors simply file a motion to remand it to Federal Court which is always granted as it is based on Federal Law and the state judges don't want to deal with it.  Once they get it moved to the Federal level they know a pro-se is most likely over whelmed with the strict process and not financially prepared for the costs involved.  Another issue you are over looking is that if you deliberately manufacture a case like this and the court determines it is frivolous and without merit  you can be hit for all the expenses the opposing party incurred which is typically $50-60,000 per case not the usual $1500 or so for a debt case in a lower court.

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On 1/13/2021 at 12:33 PM, WhoCares1000 said:

A creditor is not required to take an unreasonable deal to "Mitigate Damages". If all you can afford is $50/month and the contract interest is adding $250/month, that really does not help anyone. Just as a landlord can prove that the only tenants that applied for his apartment were ones that it would not make business sense to accept. It will be up to the judge to decide if the hardship program was reasonable enough that the plaintiff should have accepted it. I doubt that in a creditor friendly state such as Georgia, you are going to be able to make much hay with this but you can try if you wish.

You could appeal the magistrate court decision and get a new trial in state or superior court. You had better know the rules of civil procedure however if you do that.

Yes, you can delay things depending on the contract (such as moving the case to arbitration if allowed). However, the question is what is the end game? You are hoping to wear the creditor down? Are you hoping to get enough saved for BK?

Apparently you aren't familiar with how these programs work so I will explain it to you. The card gets closed, interest and fees stop once enrolled in the program. So the programs DO help and if I had been approved by this one creditor, they would have indeed mitigated some of their damages in interest and fees. 

I agree with you that it would be up to the judge to decide. I know the FRCP. 

I believe I was clear on what the end game was, to get the case out of magistrate court. 

 

 

 

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On 1/13/2021 at 1:49 PM, Clydesmom said:

Back in 2008 my brother and I had leased a house through a real estate agent only to discover the owner had already lost it in foreclosure after we moved in.  We had to fight the bank on being forced out because we were defrauded.  (we reached a settlement with BoA that included 6 months free rent) While waiting for our case to be heard the Judge in Gwinnett County made a very accurate and realistic statement to those waiting for court to start.  "You are all here because you are likely facing bad times.  While job loss, medical issues, reduced hours, car trouble etc. are all very real reasons to get behind on rent or bills they are not a legal defense to paying your rent or what you owe.  If you have not paid and do not have a valid LEGAL defense I encourage you to settle this quickly because the law is clear I must find for the Plaintiff."  We were the only ones who won that day because we had set our rent money in escrow once we found out what the "owner" had done.  BoA agreed we could keep the money to be able to secure another home and gave us 6 months to do so.  Had we not had a lawyer and that escrow account we might not have won.  We saw a LOT of people who had very sad stories of why they could not pay but still lost their case because it isn't a legal defense to defaulting.

There is NO requirement they grant you access to a hardship program.  There isn't even a requirement they have one.  You have nothing to lose by trying that defense but at best it might only shave a few bucks off the debt owed because all a hardship program does is reduce interest for a specified time period.  It does not allow a consumer to simply stop paying a credit card bill while still using the card.  You could get lucky and get a Judge that buys in to that defense but I would not pin my hopes on it.

Thanks for sharing your story about your brother. 

Of course there is no requirement that a creditor grant access to any hardship program. The fact is that if they would have in this case, they would have mitigated their damages. 

I don't pin my hopes on anything but I do use the law to the best of my abilities. At the end of the day, that is the best that anyone can do, attorneys  included. And attorneys screw up too. ;) 

 

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6 hours ago, womanonfire said:

Apparently you aren't familiar with how these programs work so I will explain it to you. The card gets closed, interest and fees stop once enrolled in the program. So the programs DO help and if I had been approved by this one creditor, they would have indeed mitigated some of their damages in interest and fees. 

I agree with you that it would be up to the judge to decide. I know the FRCP. 

I believe I was clear on what the end game was, to get the case out of magistrate court. 

 

 

 

OK, to take this a point further, if a creditor really wanted to mitigate damages, they would have taken you to court the day after you defaulted. Certainly the courts will not entertain that because they would become so clogged that no one will get their case heard.

Also, to counter your point, all they would have to show the judge is that putting you into such a hardship program would cause more damage than simply following the current path. Remember that they have Mathematicians and Computer Programmers on staff who can probably put in the parameters of your case and see what the best outcome would be. Would not be surprised if they did that when you applied for the hardship program and simply show the evidence to the judge. Especially in a creditor friendly state such as Georgia.

And you can take it out of Magistrates Court in the end anyways. It is called appeal to either the State or Supreme Court where you get a Trial De Novo which means new trial.

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10 hours ago, WhoCares1000 said:

OK, to take this a point further, if a creditor really wanted to mitigate damages, they would have taken you to court the day after you defaulted. Certainly the courts will not entertain that because they would become so clogged that no one will get their case heard.

Also, to counter your point, all they would have to show the judge is that putting you into such a hardship program would cause more damage than simply following the current path. Remember that they have Mathematicians and Computer Programmers on staff who can probably put in the parameters of your case and see what the best outcome would be. Would not be surprised if they did that when you applied for the hardship program and simply show the evidence to the judge. Especially in a creditor friendly state such as Georgia.

And you can take it out of Magistrates Court in the end anyways. It is called appeal to either the State or Supreme Court where you get a Trial De Novo which means new trial.

Again, you don't know the details of the hardship program and how it works while I do. I've done the math here, you have not and it seems that you want to argue to no end. 

Let me remind you that even a bad defense is better than none and if one is smart, can use it to delay and frustrate. It's a strategy, hence the name of the post. 

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Your right, you are going to do what you want to do and no one can talk you out of it so my response at this point is good luck.

I do have to ask a favor however, win or lose, please do come back and tell us the results.

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6 hours ago, womanonfire said:

Again, you don't know the details of the hardship program and how it works while I do. I've done the math here, you have not and it seems that you want to argue to no end. 

Let me remind you that even a bad defense is better than none and if one is smart, can use it to delay and frustrate. It's a strategy, hence the name of the post. 

I understand your your reason for raising a failure to mitigate damages, but here’s a few notes.

Georgia courts have ruled that a failure to mitigate damages is not a defense when there was an absolute promise to pay.  Unless the creditor failed to comply with the terms of the cardmember agreement, you promised to pay the balance.

However, as has been repeatedly held, "[t]he rule requiring a party to mitigate damages is not applicable where there is an absolute promise to pay." Ameris Bank v. Alliance Investment & Mgmt. Co., 321 Ga. App. 228, 234(3) (b) (739 SE2d 481) (2013). 

Another issue is the terms of a hardship program.  It you did not meet the qualifications, the creditor was in no way obligated to consider you for the program.  Because you’re raising the defense, you would bear the burden of proving that you did qualify.

Yes, there are ways to delay, but be careful.  Attempts to delay and frustrate can also have the effect of causing a court to become frustrated with the party making those attempts,

Just because a defense exists doesn’t mean it is one that should be pursued, especially when the burden of proof is on the party raising the defense, and there is court precedent that is not favorable to that party.

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