Author Topic: Suit from Fred Hanna, FIA, Magistrate Court, GA  (Read 20311 times)

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Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #15 on: March 30, 2014 07:57:30 PM »
FIA has a different agreement than BofA, it says NAF which no longer accepts consumer cases. The bank gets to choose who arbitrates.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

mavefaldon

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #16 on: March 30, 2014 07:58:23 PM »
You need to check the credit card agreement.  2009 BoA, I'm pretty sure has AZ law.  But even if that is the case, you still have a 3 year SOL argument, as Bruno will tell you, AZ changed the law to 6 year SOL in 2011. Your default in 2009 puts you back in the 3 year statute.

See City of Tucson v. Clear Channel, Arizona Supreme Court No. CV-04-0033-PR

I had wondered whether it would be under FIA (which is DE) or BofA (AZ).  No paperwork I have received says anything about BofA (though I know FIA is through them).  It does say BofA on my credit reports, however.

Interestingly, this particular debt was removed from TransUnion when I disputed it last year.  Makes me wonder if that awoke them.

fisthardcheese

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #17 on: March 30, 2014 08:52:04 PM »
Do you happen to know what the fees are like once they choose an arbitrator?

AAA Fees ( http://www.adr.org/aaa/faces/aoe/gc/consumer )

Consumer fee:  $200

Business Fees:
Filing Fee - $1500 (plus $1500 deposit)
First Telephone Hearing Fee - $500
Additional Telephone or in person hearings: $500 each
Arbitrator Compensation - $1500 per hearing day
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #18 on: March 30, 2014 08:53:21 PM »
If the plaintiff is FIA you have to use a contract from FIA. Choice of law doesn't mean much unless there is an SOL issue.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Benthere

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #19 on: March 30, 2014 10:08:46 PM »
If the plaintiff is FIA you have to use a contract from FIA. Choice of law doesn't mean much unless there is an SOL issue.

Could you explain a little more of what you mean about... Choice of law doesn't mean much unless there is an SOL issue.. I understand the SOL issue, but unsure of what else you would be referring to.  Since I am in California, California has more "protective consumer laws" than other states possibly including DE.




Benthere

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #20 on: March 30, 2014 10:43:20 PM »
You need to check the credit card agreement.  2009 BoA, I'm pretty sure has AZ law.  But even if that is the case, you still have a 3 year SOL argument, as Bruno will tell you, AZ changed the law to 6 year SOL in 2011. Your default in 2009 puts you back in the 3 year statute.

See City of Tucson v. Clear Channel, Arizona Supreme Court No. CV-04-0033-PR


Just for the record


2006 BoA agreement
page 7 of 8
44.  What Law Applies
This Agreement is made in Delaware and we extend credit to you from Delaware.  This Agreement is governed by the laws of the State of Delaware (witout regard to its conflict of laws principles) and by any applicable federal laws.


From what I can tell only “changes in agreement were published after that from 2006-2009
And then in the 2009 Changes to Agreement

Page 5 of 6  of the 2009 BofA Changes to Agreement.
For the purposes of this Arbitration and Litigation Section,
“we” and “us” means FIA Card Services, N.A., it

Again putting it in DE  

The FIA Agreement states Laws of DE also
Page 10 of 13 in the 2009 Agreement

WHAT LAW APPLIES
This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of the
State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws.


Yeeaah BABY!   3 Years....    :drinking:

mavefaldon

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #21 on: March 30, 2014 10:48:25 PM »

Just for the record


2006 BoA agreement
page 7 of 8
44.  What Law Applies
This Agreement is made in Delaware and we extend credit to you from Delaware.  This Agreement is governed by the laws of the State of Delaware (witout regard to its conflict of laws principles) and by any applicable federal laws.


From what I can tell only “changes in agreement were published after that from 2006-2009
And then in the 2009 Changes to Agreement

Page 5 of 6  of the 2009 BofA Changes to Agreement.
For the purposes of this Arbitration and Litigation Section,
“we” and “us” means FIA Card Services, N.A., it

Again putting it in DE  

The FIA Agreement states Laws of DE also
Page 10 of 13 in the 2009 Agreement

WHAT LAW APPLIES
This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of the
State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws.


Yeeaah BABY!   3 Years....    :drinking:

YES!  Thanks for the heads-up, Benthere!

Benthere

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #22 on: March 31, 2014 04:32:19 AM »
YES!  Thanks for the heads-up, Benthere!

Remember.. I am a Neeeeeeeuuuuuwwbie.  Don't just take my word for it.. make sure to take a look at the appropriat agreements for yourself :)


mavefaldon

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #23 on: March 31, 2014 02:26:15 PM »
Should I submit the MTC immediately, or should I wait until the day of the Mediation Session, or a few days before?   I seem to recall in GA Magistrate Court the judge doesn't read motions until that day. 

The reason I ask is because I'm not sure if it's better to surprise the lawyer with the MTC or not, that's why I'm also wondering if I should mail a certified copy of the MTC to the lawyer.  I believe in GA Magistrate Court it's not required.
« Last Edit: March 31, 2014 02:35:22 PM by mavefaldon »

Clydesmom66

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #24 on: March 31, 2014 02:46:26 PM »
Should I submit the MTC immediately, or should I wait until the day of the Mediation Session, or a few days before?   I seem to recall in GA Magistrate Court the judge doesn't read motions until that day. 

The reason I ask is because I'm not sure if it's better to surprise the lawyer with the MTC or not, that's why I'm also wondering if I should mail a certified copy of the MTC to the lawyer.  I believe in GA Magistrate Court it's not required.

You cannot do discovery, interrogatories, or submit motions prior to the actual date of the case.  Magistrate Court does not allow it.  Bring it with you to the hearing.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #25 on: March 31, 2014 02:48:01 PM »
Could you explain a little more of what you mean about... Choice of law doesn't mean much unless there is an SOL issue.. I understand the SOL issue, but unsure of what else you would be referring to.  Since I am in California, California has more "protective consumer laws" than other states possibly including DE.


The choice of law provision will state something like "this agreement shall be governed by the laws of state X......" The primary reason for that is the interest rate law of that state. (you can't sue them for usury)

If the SOL has expired for that particular state, in arbitration you can ask the arbitrator to apply the law stated in THEIR contract and dismiss the case in your favor. If the SOL is not expired, there isn't much other use for the choice of law provision.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Adric

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #26 on: March 31, 2014 06:05:58 PM »
Should I submit the MTC immediately, or should I wait until the day of the Mediation Session, or a few days before?   I seem to recall in GA Magistrate Court the judge doesn't read motions until that day. 

The reason I ask is because I'm not sure if it's better to surprise the lawyer with the MTC or not, that's why I'm also wondering if I should mail a certified copy of the MTC to the lawyer.  I believe in GA Magistrate Court it's not required.

When I was served i had 30 days to reply of face SJ.   I replied via MTC with a couple exhibits being the card holder agreement and an election of arb letter id already forwarded.   I'm not sure if there are other ways to reply but you may not get further notice of the court date or hearing time otherwise. 

I took a copy of the MTC and other paperwork with me to the hearing.  Theres a link to my adventure already posted above.

The judge never did hear my side of the story.  The attorney and I spent about 10 min in the hallway with her tellin lies and me tryin not to look scared or clueless and then she came back with a dismissal.  Then we went to see the judge who never even addressed me till I asked if we were done and I could go. 

Couple tips that may seem stupid or obvious but - dress up.  Your going to court.  Speak up and be clear.   Look em in the eye and know when they full of if you can.   You will be amazed at the number of folks that show up in sweats and Tshirt staring and the floor and mumbling like strung out homeless people. 

You'll be even more amazed at the sheer number that dont show up at all....

fisthardcheese

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #27 on: March 31, 2014 06:16:54 PM »
You cannot do discovery, interrogatories, or submit motions prior to the actual date of the case.  Magistrate Court does not allow it.  Bring it with you to the hearing.

This is incorrect.  You can submit motions in GA Magistrate. I've done it multiple times.  The judge simply will not look at it until the hearing date, but you can already have it filed with the court if you'd like.

Magistrate doesn't do any Discovery and Interrogatories at all, so whether you can file those prior to hearing date is moot.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #28 on: March 31, 2014 08:09:59 PM »
This is incorrect.  You can submit motions in GA Magistrate. I've done it multiple times.  The judge simply will not look at it until the hearing date, but you can already have it filed with the court if you'd like.

Magistrate doesn't do any Discovery and Interrogatories at all, so whether you can file those prior to hearing date is moot.



Hulkster, can you do discovery if you petition the court and get permission? I seem to remember this as a possibility.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #29 on: March 31, 2014 09:26:01 PM »


Hulkster, can you do discovery if you petition the court and get permission? I seem to remember this as a possibility.

Only if all parties agree to discovery AND submit a joint request to the Magistrate Court (get a JDB attorney to agree to that!)  AND if the Judge approves such request.

So, in other words, I'd say no.  The chance of getting discovery in GA Magistrate is smaller than getting ColtFan to abandon Booth #12 at BK and "eat fresh" instead.

Quote
Rule 40. Pre-Trial Discovery

Use of OCGA §§ 9-11-26 through 9-11-37 for purposes of pre-trial discovery in the magistrate court is not favored; however, requests for such discovery may be entertained when made by joint request of all parties. Requests for use of these provisions may also be allowed for preservation of testimony, obtaining evidence from out-of-state, minimizing expense and similar purposes in order to do substantial justice or lessen the expense to the parties.

No party or attorney may file any discovery request pursuant to OCGA §§ 9-11-26 through 9-11-37 without permission of the court; any such filing shall be a nullity. Where discovery is permitted by the magistrate court, the magistrate may nevertheless decline to rule on a motion pursuant to OCGA § 9-11-37 in which case such motion may be renewed upon de novo appeal.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)