Can I use MTC for Car Deficiency Lawsuit

[Workingmom30]

I have been sued for a car deficiency balance in the amount of $5020 in the Georgia Magistrate court. My contract has an arbitration clause. I wanted to file a "Motion to Compel Arbitration."  The lender is global lending.( I have enclosed the Arbitration clause part to this message)

In addition, prior to the car sale the 10 day letter was not received by me but instead received at a different address and signed by someone else as per copy of signature and address image.  And the vehicle was sold for a low price.  

The firm suing me is cooling and winter. 

The voluntary repo happened feb 2019. 

When I go to court if I intend to go MTC route, should I also bring up not getting my mail and vehicle being sold for low price. Or should I just stick to the MTC motion?

[BackFromTheDebt]

There appears to be an exemption for small claims.  
 

@Clydesmomknows the Georgia Magistrate courts at least as well as anyone here.  I think these are not considered small claims.  If I am wrong she will hopefully correct me. She has called this court trial by ambush or something along those lines 
 

The thing is, this court has its oddities.  Be careful.  I hope she will come in and tell you the best way to do a MTC

[Workingmom30]

Thank you for the response.  I did not understand the exemption. I look forward to seeing what @Clydesmom response will be regarding the same.

[Clydesmom]

1 hour ago, Workingmom30 said:

Thank you for the response.  I did not understand the exemption. I look forward to seeing what @Clydesmom response will be regarding the same.

I am working all day but will come back early this evening and share.  Stand by

[Clydesmom]

On 9/11/2022 at 12:09 PM, Workingmom30 said:

I wanted to file a "Motion to Compel Arbitration."

Magistrate Court does not allow filing motions in advance.  It is trial by ambush basically.  You would have to show up to the trial date with 3 copies of the MTC with you and then motion when in front of the Magistrate.  Here is the MAJOR problem with the MTC plan:  C&W has been hit with a MTC in credit card cases at least a half dozen times courtesy of this site.  The first two they lost and their client dismissed.  The rest they won.  They are the one law firm in GA familiar with a MTC and how to defeat it.  They will not simply cave and walk away.

On 9/11/2022 at 12:09 PM, Workingmom30 said:

And the vehicle was sold for a low price. 

Not going to help you one bit.  It is common knowledge a repossessed car is sold at auction.  After the lender applies any exemptions and deducts the fees for towing, storage and auction commissions anything left over is applied to the balance you owe.  There is no requirement they sell for an optimum price and at auction they go for pennies on the dollar.  

On 9/11/2022 at 12:09 PM, Workingmom30 said:

In addition, prior to the car sale the 10 day letter was not received by me but instead received at a different address and signed by someone else as per copy of signature and address image. 

Depends.  Is this some random address/person or a former address such as the last known one they had on you?  If it is the last known address and the one they picked up the car from then this isn't going to help you either.  You would also likely have to show that you were in a financial position at that time to redeem the car.  If you can't demonstrate that then not receiving the letter may not be enough.  You would have to have Georgia legal decisions showing that your not receiving the letter was a violation of GA law and how damages are determined.  You would need this in arbitration or court.

Your case is different than a JDB lawsuit for a credit card.  Credit cards are unsecured debt.  A car is secured.  They will have no trouble proving you signed the loan for the car and defaulted.  The second problem you have is that if C&W can prove your MTC is frivolous they can be awarded attorney fees in arbitration.  AAA is the only forum they have listed and that association does award attorney fees to the winning party.

Because this is a deficiency balance on a car loan I am recommending you get a free consult from Skaar and Feagle Consumer Attorneys.  They know I have recommended them here before.  They have helped several people I have referred to them successfully.  CALL do not email.  They have several offices all over GA.  Just call one closest to you or the main one in Atlanta regardless of where you live.  Let me know what their advice is.  It is entirely possible they can handle this for you for a reasonable fee.  C&W is the former Freddy Hanna law firm and the ilk working there are why Skaar and Feagle are in business.

[Workingmom30]

10 minutes ago, Clydesmom said:

Magistrate Court does not allow filing motions in advance.  It is trial by ambush basically.  You would have to show up to the trial date with 3 copies of the MTC with you and then motion when in front of the Magistrate.  Here is the MAJOR problem with the MTC plan:  C&W has been hit with a MTC in credit card cases at least a half dozen times courtesy of this site.  The first two they lost and their client dismissed.  The rest they won.  They are the one law firm in GA familiar with a MTC and how to defeat it.  They will not simply cave and walk away.

Not going to help you one bit.  It is common knowledge a repossessed car is sold at auction.  After the lender applies any exemptions and deducts the fees for towing, storage and auction commissions anything left over is applied to the balance you owe.  There is no requirement they sell for an optimum price and at auction they go for pennies on the dollar.  

Depends.  Is this some random address/person or a former address such as the last known one they had on you?  If it is the last known address and the one they picked up the car from then this isn't going to help you either.  You would also likely have to show that you were in a financial position at that time to redeem the car.  If you can't demonstrate that then not receiving the letter may not be enough.  You would have to have Georgia legal decisions showing that your not receiving the letter was a violation of GA law and how damages are determined.  You would need this in arbitration or court.

Your case is different than a JDB lawsuit for a credit card.  Credit cards are unsecured debt.  A car is secured.  They will have no trouble proving you signed the loan for the car and defaulted.  The second problem you have is that if C&W can prove your MTC is frivolous they can be awarded attorney fees in arbitration.  AAA is the only forum they have listed and that association does award attorney fees to the winning party.

Because this is a deficiency balance on a car loan I am recommending you get a free consult from Skaar and Feagle Consumer Attorneys.  They know I have recommended them here before.  They have helped several people I have referred to them successfully.  CALL do not email.  They have several offices all over GA.  Just call one closest to you or the main one in Atlanta regardless of where you live.  Let me know what their advice is.  It is entirely possible they can handle this for you for a reasonable fee.  C&W is the former Freddy Hanna law firm and the ilk working there are why Skaar and Feagle are in business.

@ClydesmomThank you much. The address was a random address and not my former address. The person that signed the letter put the numbers of the street address and street name. Would that make a difference?

The sale was a private sale.  Does that count as auction?

To prove that I would have been able to redeem the car. Does job stability count? 

Thank you for recommending Skaar and Feagle. I highly appreciate it. 

Below is what I found online regarding GA law. Not sure if me not getting the 10 day letter would still count. 

---------------------

O.C.G.A. 10-1-36 (2010)
10-1-36. Disposition of motor vehicle repossessed after default; right to recover deficiency


(a) When any motor vehicle has been repossessed after default in accordance with Part 6 of Article 9 of Title 11, the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after the repossession he or she forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller's or holder's intention to pursue a deficiency claim against the buyer. The notice shall also advise the buyer of his or her rights of redemption, as well as his or her right to demand a public sale of the repossessed motor vehicle. In the event the buyer exercises his or her right to demand a public sale of the goods, he or she shall in writing so advise the seller or holder of his or her election by registered or certified mail or statutory overnight delivery addressed to the seller or holder at the address from which the seller's or holder's notice emanated within ten days after the posting of the original seller's or holder's notice.

(b) In the event of election of such public sale by the buyer, the seller or holder shall dispose of said repossessed motor vehicle at a public sale as provided by law, to be held in the state and county where the original sale took place, or the state and county where the motor vehicle was repossessed, or the state and county of the buyer's residence, at the seller's election.

(c) This Code section is cumulative of Part 6 of Article 9 of Title 11 and provides cumulative additional rights and remedies which must be fulfilled before any deficiency claim will lie against a buyer, and nothing herein shall be deemed to repeal said part.

 

[Clydesmom]

1 hour ago, Workingmom30 said:

The address was a random address and not my former address. The person that signed the letter put the numbers of the street address and street name. Would that make a difference?

It very well could but this is not my area of expertise.  It is a VERY specific area of law.  That is why I recommended S&F.  If there is a basis to use this they will know for sure.

1 hour ago, Workingmom30 said:

The sale was a private sale.  Does that count as auction?

No.

1 hour ago, Workingmom30 said:

To prove that I would have been able to redeem the car. Does job stability count? 

No.  The total amount due on a bank statement from the time of possession would..  The problem you have is that once you defaulted it typically takes up to 90 days or more to actually repossess the car.  When did you default and when did they get the car?  Once you defaulted the acceleration clause kicked in.  That means the entire balance including late fees, repo fees, storage etc. all come due at once to redeem the car.  Most lenders will not simply let you pick up the car for resuming payments.  The other issue is if you present "job stability" as your defense to being able to redeem the car the first question the Magistrate will have is "then why didn't you make your payments?"  Just to prepare you for the court's position, I heard a Magistrate in Gwinnet say this to the court room before eviction and repo trials started in 2008.  "I highly recommend you go out in the hallway and work this out.  While job loss, medical problems, divorce and unpaid child support are all sad and compelling circumstances they are NOT a legal defense to not paying your car payment, lease etc.  If you do not have a LEGAL defense to the default I have no choice but to sign the eviction or order the repossession."  DO NOT let your emotions cloud your judgment in dealing with this.

Call S&F and run your details past them.  Let me know what they say.

[Workingmom30]

2 hours ago, Clydesmom said:

Magistrate Court does not allow filing motions in advance.  It is trial by ambush basically.  You would have to show up to the trial date with 3 copies of the MTC with you and then motion when in front of the Magistrate.  Here is the MAJOR problem with the MTC plan:  C&W has been hit with a MTC in credit card cases at least a half dozen times courtesy of this site.  The first two they lost and their client dismissed.  The rest they won.  They are the one law firm in GA familiar with a MTC and how to defeat it.  They will not simply cave and walk away.

Not going to help you one bit.  It is common knowledge a repossessed car is sold at auction.  After the lender applies any exemptions and deducts the fees for towing, storage and auction commissions anything left over is applied to the balance you owe.  There is no requirement they sell for an optimum price and at auction they go for pennies on the dollar.  

Depends.  Is this some random address/person or a former address such as the last known one they had on you?  If it is the last known address and the one they picked up the car from then this isn't going to help you either.  You would also likely have to show that you were in a financial position at that time to redeem the car.  If you can't demonstrate that then not receiving the letter may not be enough.  You would have to have Georgia legal decisions showing that your not receiving the letter was a violation of GA law and how damages are determined.  You would need this in arbitration or court.

Your case is different than a JDB lawsuit for a credit card.  Credit cards are unsecured debt.  A car is secured.  They will have no trouble proving you signed the loan for the car and defaulted.  The second problem you have is that if C&W can prove your MTC is frivolous they can be awarded attorney fees in arbitration.  AAA is the only forum they have listed and that association does award attorney fees to the winning party.

Because this is a deficiency balance on a car loan I am recommending you get a free consult from Skaar and Feagle Consumer Attorneys.  They know I have recommended them here before.  They have helped several people I have referred to them successfully.  CALL do not email.  They have several offices all over GA.  Just call one closest to you or the main one in Atlanta regardless of where you live.  Let me know what their advice is.  It is entirely possible they can handle this for you for a reasonable fee.  C&W is the former Freddy Hanna law firm and the ilk working there are why Skaar and Feagle are in business.

Thank you so much!