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Ask Legalease Your Own Question
Legalease, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 16367
Experience:  13 years experience in Consumer Protection law, in particular construction law and auto repo law
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Filed an answer (DENIED) to a very small claim in Magistrate

Customer Question

Hi. Filed an answer (DENIED) to a very small claim in Magistrate Court ($1,200) that was filed by a collection agency/attorney. They did NOT file or attach any evidence which our clerk stated they usually do. So when I asked for a subpoena to request they provide proof/evidence of the claim, clerk called them 1st - they said they would mail me the "evidence". I did receive mail, but it was only a "copy" of a hospital "itemized statement" that says the statement date is 6/20/2015 for 2012 services. There is NO proof I even got this bill after insurance paid, or anything, and honestly cannot find anything in my mail pile. This statement says "bal trans-bad debt" at the end showing the total amount $1200. I assume the collection agency/atty bought this debt.
Submitted: 1 year ago.
Category: Consumer Protection Law
Customer: replied 1 year ago.
Sorry I didn't finish! Anyway, that's all they sent. The actual "complaint on contract" only says that I owe the $1200 for services from hospital...NO DATES, NO ACCOUNT NUMBERS, nothing. There was no way I could even properly ANSWER the complaint without details. I definitely will not just agree to a payment plan with them without the proof! The court date is Wed, 9/23.
Customer: replied 1 year ago.
I am VERY familiar with our court systems, mostly superior/civil family law, with a little in Magistrate court. The actual attorney/collection agency tends to do high volume collections with a very high percentage ending in default judgments then Writs - on accounts they know they can collect on via garnishment of wages or bank accounts. I did some research on that for this magistrate court with this particular collection agency. I only saw 2 Defendant's who actually answered a complaint within the 30 day deadline - one was admitting to the charges and was asking for a payment plan and the other was someone who was asking for the proof. My questions are - assuming they will come to court Wed and not have a hospital witness from the billing department who can authenticate what they claim I owe....There are no affidavits filed by the billing department or by anyone from the agency authenticating this itemized statement or any evidence.
Customer: replied 1 year ago.
Another question - Odd question: Can my wife appear for me at the hearing if I sign a financial power of attorney to her? She's also a contract paralegal. Only reason I ask is I just started a new job (last employer of 8 years closed). Thanks.
Customer: replied 1 year ago.
Here are the remaining details. This is for GEORGIA - Walton County Magistrate Court - Bench Trial set for Wed 9/23 at 9:30am. The Statement of Claim states this under "Plaintiff's Name and Address":
Gwinnett Hospital System, Inc.
Carmen V Porreca, P.C.
4901 Olde Towne Pkwy, Ste 303, Marietta GA 30068
Porreca is an attorney/collection agency. Letter head states "this correspondence is from a debt collector. It is an attempt to collect a debt and any info...." and if I were to agree to any payments, they would be made out to CARMEN PORRECA not Gwinnett Hospital System so that tells me that the agency "owns" the debt and that the statement was printed this year and shows a bad debt write off (from what I can tell). So, rather than me try to dig all way back to 2012 to look for all insurance claims, any payments I made directly to the hospital etc is very burdensome - I would think that they have the burden of proof to prove I owe it and show proof of the "chain of command", which is why I answered it as all denied. The chain of command has to go all the way back through each debt buyer all the way to the original creditor right? Plaintiff has failed to present, submit, or generate evidence to support their claim. Would this fall under the Real Party in Interest defense? I assume they need to produce documents in court proving that I owe the debt, and that they are who you owe the debt to. If they can prove it, then I can try to make a deal on a payment plan. If they can't prove it, wouldn't the judge throw the case out?
Expert:  Legalease replied 1 year ago.

Hello there --


Your question was referred to me for response. First, I do not think it is a very good idea for your wife to appear on your behalf unless it is to ask for a continuance to a later date to accomodate your work situation and give you more time to come up with any proof that this debt was either not yours or was paid by insurance (or should have been paid by insurance). While the current creditor has the burden of showing the debt, there are no legal requirements of establishing a "chain" to show where the debt came from and how it ended up in the hands of this particular collection agency. Generally most courts will accept a statement of the original debt from the original creditor (in your case, the hospital) -- although some courts will go so far as to require that the current creditor get a sworn affidavit from the original creditor stating that the debt is yours and is still outstanding. However, there are no "set" requirements in the law as to what is required for the creditor to establish their burden of proof and it is completely up to the judge or magistrate hearing the proceeding what they are willing to accept from the creditor in this regard. Obviously, you can object that they have not appeared with enough proof that this debt is your debt and remains unpaid and then the creditor will most likely seek a continuance and go back to the original creditor and get what the court requires for the next court date. The bot***** *****ne is that the court will work with the creditor and give them time to submit what the court requires to "prove" the existence of the debt from their standpoint. Which then puts you back in the original position of still having to track back through your insurance company to see what this bill was about and why it was not paid when it should have been paid or even if it is properly your bill.


I do think it is worth your challenging them on getting appropriate proof of the debt (ask how anyone can determine whether the one page they presented was really your debt and tell the court that they did not appear with enough proof that the debt is really yours) and also challenge them to present any proof that this bill had been sent to you previously. You may be able to get a dismissal or a conditional dismissal (meaning they can refile if they come up with more proof) by taking this position. It is a good position to take. But, I just want you to be prepared that they will eventually come back with more information and it is in that time period that you should try to find out what this is all about and why through your insurance carrier. It could actually be a big mistake as far as billing procedures go, but because it was a few years ago the hospital simply kicked it to a collection agency without investigating it appropriately in the first place.


Please let me know if you have further questions. If not, can you please press a positive rating above before you leave the website. I am paid nothing unless you press a positive rating before you leave. THANK YOU VERY MUCH



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