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Motion to Dismiss (credit card debt collection) -- Atlanta, Georgia

This is a discussion on Motion to Dismiss (credit card debt collection) -- Atlanta, Georgia within the Civil Litigation forum, part of the ATTORNEYS, COURTS, LITIGATION category; I just had a trial date set in the state of Georgia (Fulton Atlanta) for an old credit card debt ...

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Old Jul 18th, 2011, 07:46 AM   #1
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Default Motion to Dismiss (credit card debt collection) -- Atlanta, Georgia

I just had a trial date set in the state of Georgia (Fulton Atlanta) for an old credit card debt a collection co is suing me for. I responded by requesting validation of the debt without admitting fault. They provided the court with a random bill with my name and address on it but not the original contract or any explanation of interest and the way they calculate the amount of the debt. Judge denied their motion for summary judgment and set trial date. Can I file motion to dismiss on the grounds they have not been able to validate? Or should I go to court and bring this up? Or should I try to settle (obviously want to avoid if I can).

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Old Jul 18th, 2011, 08:24 AM   #2
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Default re: Motion to Dismiss (credit card debt collection) -- Atlanta, Georgia

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I just had a trial date set in the state of Georgia (Fulton Atlanta) for an old credit card debt a collection co is suing me for. I responded by requesting validation of the debt without admitting fault. They provided the court with a random bill with my name and address on it but not the original contract or any explanation of interest and the way they calculate the amount of the debt. Judge denied their motion for summary judgment and set trial date. Can I file motion to dismiss on the grounds they have not been able to validate? Or should I go to court and bring this up? Or should I try to settle (obviously want to avoid if I can).

Thanks

My first question is "How 'old' is the debt?" Is it beyond the statute of limitations to collect on?

Often when a debt collection gets a credit card debt, the bank has written it off and they collection company pays literally pennies on the dollar for the long written off account.

If the statute of limitations has not run and you acknowledge you owe something, settling for less than half of what they are asking, or even a third -- less attorneys fees, less interest might be a good place to start. And finish.

If and when they produce records showing the principal balance of the debt, be sure to require they show their authority to collect for the bank -- a copy of the assignment and what they paid for it, too.

That would be my suggestion.
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Old Jul 18th, 2011, 08:43 PM   #3
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Default Re: Motion to Dismiss (credit card debt collection) -- Atlanta, Georgia

Also, look at the affidavit...does it say that this information is "made on personal knowledge" ? Does THE NOTARY state that" the affiant IS KNOWN BY ME AS THE PERSON WHO FILED THE AFFIDAVIT and personally appeared before me" on such and such a date ? Or does it simply state that the AFFIDAVIT WAS SIGNED ON THIS DATE, ETC ?
The attorney wouldn't be Fred Hannah and Assoc ?
Did they ever show proof of how they arrived at the amount sued upon ?( in accordance with the TRUTH IN LENDING ACT ? Did they show proof of how they acquired this account...by a formal retainer agreement, by assignment, by purchase ?
Check your state code for similar language, but Tenn Law states that" a Debt Collector must show proof of an assignment, properly executed, manifested by a written agreement and show valid consideration paid, if any"
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Old Jul 19th, 2011, 12:42 AM   #4
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Default Re: Motion to Dismiss (credit card debt collection) -- Atlanta, Georgia

If they do not have all documents from the beginning to the end, most courts will not rule against you--but you have to bring up the issue!

They do have to prove their case. A few billing statements does not suffice.
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Old Jul 20th, 2011, 02:09 AM   #5
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Default Re: Motion to Dismiss (credit card debt collection) -- Atlanta, Georgia

It is not clear from your statement whether you have taken an affirmative defense in your answer challenging the validity of debt. Anyhow you can approach the court by filing a motion to dismiss for failure to state a claim for which a relief can be claimed. In this motion the emphasis should be on the documents which would prove the plaintiff’s claim. If the court finds that the plaintiffs cannot prove the existence of a valid contract or produce the documents in establishing the debt, then the court will most likely allow the motion and dismiss the complaint.
Even otherwise , the plaintiffs will not succeed to win the case if they do not have any documents to prove their case. If you don’t want all these and settle with the debt collector you can do it during a pre trial conference which will be conducted before the commencement of trial. The date and venue of the conference will be intimated to you.
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