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IN THE STATE COURT FOR THE COUNTY OF GWINNETT STATE OF GEORGIA

MIDLAND FUNDING LLC,

) ) Plaintiff/Respondent, ) ) vs. ) ) JILL SHERIDAN, ) ) Defendant/Movant. )

CIVIL ACTION FILE NO.: 10-C-07271-4

***ROUGH DRAFT***

***** Transcript of the Motions Hearing before the Honorable Joseph C. Iannazzone held on the 1st day of April 2011.

APPEARANCES OF COUNSEL: For the Plaintiff/Respondent: James T. Freaney Attorney at Law Pro se

17 18 19 20 21 22 23 24 25 ********** For the Defendant/Movant:

DONNA HAZELL Official Court Reporter for Judge Joseph C. Iannazzone Gwinnett Justice & Administration Center 75 Langley Drive Lawrenceville, Georgia 30045 (770)822-8799

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I-N-D-E-X T-O W-I-T-N-E-S-S-E-S PAGE

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Direct Examination............................ Cross-Examination............................. Redirect Examination.......................... Recross-Examination........................... Direct Examination............................ Cross-Examination............................. Redirect Examination.......................... Recross-Examination........................... Direct Examination by ........................ Cross-Examination by ......................... Redirect Examination.......................... Recross-Examination...........................

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I-N-D-E-X T-O E-X-H-I-B-I-T-S

For the Plaintiff: EXHIBIT IDENTIFIED TENDERED RECEIVED

For the Defendant: EXHIBIT IDENTIFIED TENDERED RECEIVED

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P-R-O-C-E-E-D-I-N-G-S THE COURT: If you want to ma e an opening, you can. Let me go ahead and get you under oath, though, just because sometimes we end up -- when someone is representing themselves, I end up with a mixture of argument and testimony at the same time. So, if you would, raise your right hand. (JILL SHERIDAN, having been first duly sworn, testified as follows:) MS. SHERIDAN: Your Honor, we are here today because of the frivolous litigation that the Plaintiff and his client have pursued against me, not only once but twice. The first time they actually filed in Magistrate Court which was dismissed. They dismissed it because, basically, they had no standing to sue me there. They refiled this case in the State Court, which is the instant action, which I was granted judgment, as you may recall, December 9, 2010, after the Plaintiff immediately rested. The Plaintiff did not, at any time, pursue discovery upon me. He did respond to discovery that I requested. There were deficient responses. I did request a motion to compel before trial. The Plaintiff at Frederic J. Hanna and Associates,

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they had to -- exercise due diligence in determining whether their case -- they should go forward on their

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and their client. They should have dismissed the case against me, but they didn't. They let it go all the way to trial and today I am as ing for attorney's fees which I incurred in the amount of $500 which I hired an attorney at the very beginning of the case who filed an answer. I'm also as ing for all of my personal fees and expenses of litigation and those include postage, mileage expenses, things li e that that I personally had to pay of poc et because of the frivolousness actions of the Plaintiff. I am also as ing for time -- Mr. Silverbach's time today to be compensated. I am as ing for the court reporter fees from last time and this time to be taxed against the Plaintiff, and it is important to note here that I am as ing for these costs to be taxed against both the Plaintiff and their client for their frivolous action against me. THE COURT: Mr. Freaney, do you want to ma e an opening statement? MR. FREANEY: I would just wish to note, your Honor,

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that nowhere in Ms. Sheridan's written motion did she as

case, nowing that they no standing whatsoever, both them

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for attorney's fees or expenses of litigation to be assessed against the attorneys for Midland Funding LLC, and I believe that without that notice the Court cannot

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award attorney's fees against counsel but only against a party. And with that, I'll allow the movant to put on her case. THE COURT: Ms. Sheridan, go ahead. I would note that the motion as s for the attorney's fees to be awarded against the Plaintiff and its attorneys. MS. SHERIDAN: I was just loo ing at that, sir, but I now that I definitely did as for that. THE COURT: It's there. It's in the last paragraph of the motion. MS. SHERIDAN: And 9-15-14 does provide that it be brought -- it can be brought against the attorney and/or their client. THE COURT: You can proceed. MR. FREANEY: I'll concede that point, your Honor. THE COURT: O ay. MS. SHERIDAN: First and foremost, I would li e to present to the Court that I did put in with my motion for attorney's fees and expenses copies of my payments to

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Mr. Silverbach for his attorney fees which I spent out of my poc et in the amount $500. There was a chec and also a cash receipt and those were provided with, li e I said, the motion for attorney's fees.

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And today Mr. Silverbach is here to attest to the reasonableness and necessity of these fees as prescribed by 9-14-14, and I would to go ahead and swear my witness in and examine him so that he can get on his way. THE COURT: Mr. Silverbach, come on up. EDWARD VICTOR CORNELL SILVERBACH, having been first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MS. SHERIDAN: Q please. A Q A Q A Q A Q Edward Victor Cornell Silverbach. And, Mr. Silverbac , what is your profession? I'm an attorney of the State of Georgia. Are you registered with the Bar? Yes, I am. And how long have you been a member of the Bar? Precisely 22 months. Are you a member in good standing? Can you, please, state your full name for the record

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A Q A Q

Yes, I am. And licensed in the state of Georgia? Yes, I am. And did the Ms. Sheridan, myself, hire you in defense

of the case filed against her, Midland v. Sheridan, on June 12,

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2010? A Q Yes, to the best of my recollection. And did she pay you -- do you recognize -- this is

Exhibit B that was turned in with the motion. Do you recognize

A Q

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and a receipt for that amount.

The other amount was paid in cash of $270; is that correct? A Q Yes, it is. And can you attest to the reasonableness with your

fees. Are they in line with other attorneys that practice in similar areas as you? A Most definitely. I had, at that time, after

providing for the answer, had put in extensive research into drafting you answer, drafted the answer, and had put in --

O ay. And the payment receipt is actually in cash.

It is a chec

chec . It is a chec to -from you to me in the amount of $230

the chec

and the payment receipt here as Exhibit B shows? Yes, I do. O ay. And can you state what those are? I mean, the

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begun research into drafting discovery. I had put in a total of six and a half hours. I had been practicing, at that time, for, I believe, roughly over one year, although I don't recall exactly. I haven't done the math at that time. But I'm graduate of John Marshall Law School. I had a one year internship with the law

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offices of James E. Goad out of Bartow County up in Cartersville. And I believe that at that time it was commensurate with my experience and the novelty and difficulty of the case. Q A And what is your hourly rate? My current hourly rate is $215 an hour. At that time

I believe I was charging 145. Q So for today's proceeding in what amount would ou

prefer, if granted by the Court, to be compensated for your time? A I believe $215 an hour would be commensurate with my

current level of experience, the amount of cases that I handle, my current billing of my clients. I have cases that range from $70,000 in potential judgment all the way up into the seven figure range.

mostly in Cobb County, and if you ta e a loo at my current -at my total caseload from my firm we have upwards almost

If you ta e a loo

at the cases that I'm handling,

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$10 million in potential judgments. MS. SHERIDAN: And let the record show that in my motion I did request that Mr. Silverbach be compensated for his time today, even if he is not actually my attorney

against the Plaintiff for his having to appear on my behalf.

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(By Ms. Sheridan) Mr. Silverbach, do you have

anything to add? A No, I don't. THE COURT: Mr. Freaney, Cross-examination. MR. FREANEY: Can I approach the witness? THE COURT: Yes. CROSS-EXAMINATION BY MR. FREANEY: Q Mr. Silverbach, I'm James Freaney. I represent

Midland Funding, Plaintiff and Respondent in this action. Can you tell the Court how many hours you spent researching and drafting the complaint -- stri e that, answer in counterclaim. A The answer in counterclaim itself, not precisely,

because the contract called for a flat rate of $2,000. It was divided up into installment payments of $500 for the answer in counterclaim itself, and then she proceeded to give me an

representing today. I as

for future expenses be taxed

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additional $500 thereafter for me to continue -- draft further motions in discovery and at which point was when my relationship with her deteriorated and ended. Q mean? MS. SHERIDAN: Objection. Relevance. THE COURT: No. I thin attorney-client privilege matters can't get into, but the -- so the evolution or the You said your relationship deteriorated. What do you

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devolution of the attorney-client relationship would be relevant to the reasonableness of the fees because it

done. So go ahead and answer. A Well, at the time the representation ended it had

been six and a half hours of actual attorney time. As to the

What do you mean deteriorated? You said

"deteriorated." A Well, the attorney-client trust had been abrogated,

but I'm not willing to go into it any further due to attorney-client privilege. Q I understand. But your client has placed that in

issue -- or you just placed that in issue, so I'd as you to -THE COURT: No. I --

specific tas s involved I was not eeping trac

of each tas .

depends on when the representation ended how much wor

was

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MS. SHERIDAN: I object. I don't waive --

waived by bringing this. It's really a question of whether services were performed and whether the fees charged for the services were reasonable. MR. FREANEY: Then I'll move on. (By Mr. Freaney) You stated a defense under the Fair

Debt Collection Practices Act a failure to verify the debt in your defenses; is that correct.

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A Q

I fail to see the relevance of that. I'm as ing you if it's correct. I thin we'll let

the Court decide the relevance. A I belief it's correct. You've given me precisely

30 seconds to ta e a loo at this. It's a fairly extensive answer. Q How many cases have you litigated under the Fair Debt

Collection Practices Act? MS. SHERIDAN: Your Honor, I did not have a counterclaim under the Fair Debt Collection Practices Act, therefore, that particular question is irrelevant. MR. FREANEY: It was raised as a defense in the answer. It goes to reasonableness. THE WITNESS: But it was not raised in the counterclaim.

THE COURT: I don't thin

the privilege has been

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THE COURT: Go ahead. Answer the question. THE WITNESS: Yes. sir. Well, I believe I've defended and prosecuted under

approximately three, maybe two at this point. I don't really recall. Q A How about at the time that you filed the answer? One prior to her -- actually two, because one was a

defense and one was a prosecution which settled. Q Are you aware that under a 2003 amendment to the Act

that a complaint against the debtor is not considered an

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initial communication for purposes of 15-USC-1692-G? A Q answer? A Q No, I was not. You also stated that that in a counterclaim -- in I am now. Were you aware at the time that you filed that

your counterclaim that the Defendant was entitled to recover her expenses of litigation under OCGA 13-6-11. A Q A Q Uh-huh (affirmative). Is that a yes? Yes. Are you familiar with the case Volery Properties

against Hefty Dunn Investment Company in which the appeal -- a 1994 case in which the appeals court held that attorney's fees

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under that Code Section are not available to a Defendant in the absence of a viable independent counterclaim asserting the claim for relief? MS. SHERIDAN: I'm sorry. Objection, your Honor. I have not as ed for that relief. I had not as for that relief in my motion to the Court. This is under 9-15-14, therefore, the other one, the 13-6-11 isn't relevant in this matter. I have not pursued that, therefore, that's completely irrelevant. MR. FREANEY: It goes to reasonableness of fees in drafting -- and the way that he framed the counterclaim.

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THE COURT: Overruled. Go ahead and answer. Was I aware of that case? (By Mr. Freaney) Correct. No. I was not at that time. All right. You also stated a claim, I believe,

for -- a counterclaim for attorney's fees under OCGA 9-15-14 in your counterclaim? A Q Yes. Are you familiar with a case, Deavers v. Hog Mountain

Creations, a 1993 case in which the Court of Appeals held that the Code Section requires that an award of attorney's fees for bringing an action without merit must be requested by motion rather than by counterclaim?

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The statute itself says that it must be brought a

motion, and a number of other cases that I've read, which I don't have my brief in front of me, but a number of cases I've read have said that it is required to be brought as a compulsory counterclaim. So I believe that that 1993 case has been substantially overruled. Q A Well, can you cite any cases that have overruled? I just told you I could not. MS. SHERIDAN: Your Honor, Glass versus Glover states that I -THE COURT: Hold on, ma'am. Ma'am, you'll have a chance to argue later.

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(By Mr. Freaney) Are you aware that the portion of

the court's opinion that I cited was, in fact, upheld by the Supreme Court in Batalic, Inc. versus Deavers, a 1994 case? A Q A Q A In 1994? Correct. O ay. You were aware of that or you're not aware of that? No, I'm not aware of that.

sir. THE WITNESS: You're welcome. THE COURT: Do you have any other questions for this

MR. FREANEY: I have nothing further. Than

you,

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witness? MS. SHERIDAN: Yes, sir. REDIRECT EXAMINATION BY MS.SHERIDAN: Q Mr. Silverbach, when I hired you were you a competent

and willing and ready attorney to pursue my case with your

Most certainly. MR. FREANEY: Objection. The question is

argumentative. MS. SHERIDAN: Well, it goes to reasonableness and such that his fee is. THE COURT: Well, it's actually -- it's something for

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me to determine, not him. MS. SHERIDAN: I'm sorry. I withdraw that. Q (By Ms. Sheridan) Mr. Silverbach, do you have any

anything to add as far as the experience that you have in regard to the answer and what you filed in my answer? A No, not necessarily. MS. SHERIDAN: I have no other questions. THE COURT: All right. Any Recross? MR. FREANEY: None, your Honor. THE COURT: May this witness be excused? MR. FREANEY: No objections, your Honor.

experience and your

nowledge as stood at that time?

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MS. SHERIDAN: No objection.

THE WITNESS: Than you, your Honor. MR. FREANEY: Than you for your time. Could you leave the answer. THE COURT: Ms. Sheridan, do you have anything else? MS. SHERIDAN: I do, your Honor. Your Honor, first of all, Nesbit v. Nesbit say -- examines the same situation that -THE COURT: Save that for closing argument. Do you have any other evidence you wish to present? MS. SHERIDAN: Yes, I do. I have exhibits with expenses. Your Honor, do you have in your possession Exhibit A which is the Defendant's affidavit I turned in

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with the motion for attorney's fees? THE COURT: It's here, yes. MS. SHERIDAN: Do you have Exhibit B? THE COURT: I have all the -- I have your motion with all of the attached exhibits. MS. SHERIDAN: I have additional exhibits that I would li e to submit to the Court, and these include all of the fees and expenses I have incurred since trial and since the motion has been put in front of the Court. The first expense that I would li e to present to the

THE COURT: You're free to go. Than

you.

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Court is witness fees and -- in getting Mr. Silverbach here today. Subpoenaing him, the fees that I provided and with a subpoena, and those are in the amount of $43.68 plus $1.10 U.S. money order fee, and that is also $199 to have him subpoenaed and served and also postage in the amount of $6.32 to notify Mr. Silverbach that he would be needed to testify which was paid on the 20th of January. In addition, I am as ing the Court to award Mr. Silverbach attorney's fees for him being present today, and I would li e to tender Exhibit C which covers all of that. May I approach? THE COURT: You can. MS. SHERIDAN: Mr. Freaney this is your copy. And Exhibit D is all the postage, expenses that I

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have incurred in the discovery phase of this case which was dealing with the deficient responses that the Plaintiff's attorney had provided me as outlined in the motion to compel in front of the Court and in the motion for attorney's fees. And I have these here today and the total postage fees $44.23. Mr. Freaney. Your Honor, may I approach? THE COURT: Yes.

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Court to award me travel expenses per the $.51 IRS mileage rate for last year. I have incurred considerable travel expenses, including today for being here. I'm a Cobb County resident. I was served the day we were moving into our new house in this matter. As the matter has been protracted on and drug on and drug on, and at any time the Plaintiff could have dismissed this action. At any time, nowing that there was no absolutely no merit to their

claims they still drug it out and I had to come to the courthouse incurring considerable mileage in turning in these motions, and I'm as ing for mileage for that. And based on the IRS tax rate it comes to a total of $396.58, and I've calculated that per -- I did Google maps. I have all the addresses for the exact mileage that I had do and for every trip and for every trip that I had made there is

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records. It is on the record that I had filed something that day, so it's corroborated by the doc et and when I filed with the court. So there's no question as to me having to do this. And also I had to drive to get -- to drop off the actual witness fees to have Mr. Silverbach served with his fess, so I had to hand this in person to the server and pic up the affidavit of service and bring it all the way here yesterday.

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MS. SHERIDAN: Travel expenses. And I'm as ing the

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That's the mileage. I'm also as ing the Court for court reporter transcript fees in the amount of $35 which I requested for the transcript of the trial on December 9th of 2010. I also incurred a $.44 charge for mailing that which I have a receipt for. This is Exhibit -- part of the Exhibit F. In addition to Exhibit F I am as ing for printing and paper related expenses for all the motions I had to file, all the in for the printer cartridges I had to buy in dealing with the motions that they should have just dismissed a long time ago. And that was $145 both postage -- I mean -- I'm sorry. Excuse me. Coping expenses and paper and court reporter fees and I have these here, Exhibit F. Your Honor, may I approach? THE COURT: Yes.

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MS. SHERIDAN: Your Honor, because I am not an

Mr. Silverbac was no longer representing I found myself in a position where I had to do considerable legal research and in order to prepare my case and my defense and in doing that I had to visit my local law library a lot and legal research is also customary for anyone else

attorney and I was

ind of blind-sided and after

I'd li e to present these expenses to you as well.

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presenting their case or preparing for their case as lawyers. So I am requesting that my fees for doing so be

had to come here to the courthouse. I actually had my case file copied for research. I also went to the Cobb County law library on five occasions and I have par ing receipts on every five occasion I had to go. And I also did extensive research on Case Search, and for those expenses I'm as ing for 118.94, and that is Exhibit G. And, your Honor, the total amount I'm see ing today is $1,448.53 and those are my actual out-of-poc et expenses completely documented 100 percent, and all I want to be is whole again. I lost a considerable amount of time which cannot be compensated in any meaningful way. The amount of sleep I lost having to deal with this, the frustration, the impact it had on my life. I can't get that bac , but am as ing this Court to

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give me give me the $1,448.53 that I lost having to deal with this case that should have been dismissed way long time ago, and I have all of those costs also neatly done for you here. The bottom line in this case, your Honor, is that all of these expenses were from -- especially the discovery

granted bac

to me which include $42.50 copying fees. I

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expenses, having to do deal with that, the extra time I had to come to the courthouse on the motion to compel, it all culminated at the trial and then the Plaintiff immediately rested and did not present a case. If that is not a good reason, touche'. I mean, they brought me all the way to trial to do nothing and that in itself was frivolous. I had every right to question their standing in the suit. They have never -- they have never shown me any ind of documentation whatsoever during this whole thing. And also, I actually contacted their client when I first found out about representation. I had no business relations with their client whatsoever prior to being

of 2009. I contacted their client via certified mail, return receipt requested, as ing for verification, if they, in fact, were being represented. During this whole time, until today, more than a year and four months later, I still have never had any contact

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taxed against the Plaintiff's attorney, because Clayton Mosely, Daniel Green who had a hand in the discovery, the discovery requests that were deficient and pages and pages

So, therefore, that is also why I'm as ing that it be

with Midland Funding. I don't even

contacted by Frederic

J. Hanna and Associates in November

now who they are.

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sense. The interrogatories, they weren't verified. I mean, I could have done a better job as pro se.

should be taxed equally against them. I thin that's all I have right now. THE COURT: If you'll come to the witness stand, Mr. Freaney may have some questions for you. MS. SHERIDAN: Absolutely. CROSS-EXAMINATION BY MR. FREANEY: Q Ms. Sheridan, you stated that you contacted Midland

J. Hanna and Associates, was, in fact, their representative? A Q A Yes, I did. Now, this was before you engaged counsel, correct? Yes, it is. This is prior to you filing suit. You

filed suit right after I contacted them. Q Right. Well, you've done some research subsequently.

Has your -- about the law that applies to this case in general.

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Were you aware that it's ethically forbidden for an attorney to contact a party that's represented by counsel?

But you were choosing to represent yourself at that

No. I'm not an attorney, so why would I now that?

Funding directly to try and confirm that my law firm, Frederic

I thin

all of them had a hand in it and I thin it

of objections that are nonsensical. They didn't even ma e

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point. A I was not -- there was no case pending when I

contacted them, therefore, that's irrelevant.

correct? A Q At what point? At the point at which you decided to contact Midland

to see if my firm was, in fact, representing -- their representative. A I did that before there were any proceedings to

represent myself in. Q Were you aware that an attorney has prima facie

authority to represent his client and that an unauthorized appearance is punishable by contempt? A Q A Q Was I aware at that time? Were you aware now? Please explain that one more time. Are you aware now that an unauthorized appearance by

an attorney on behalf of a party is considered contempt of court?

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Are you aware that Midland brought this action and

captioned it as -- captioned itself as the assignee of Chase Ban USA?

No, I'm not aware. I don't

I'm as ing: You chose to represent yourself; is that

now.

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I read it on the complaint -- the empty complaint

that had nothing attached to it whatsoever. Q Are you aware that generally the caption is

considered part of the complaint for all purposes?

Do you now that now? A Q

If you're telling me that's it, I guess. But you don't have any other independent basis for

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(By Mr. Freaney) Did you, in fact, have a customer USA?

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How is that relevant? You are representing Midland

Funding today.

relationship with Chase Ban

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nowing that. A My understanding is that it's not prima facie, or

whatever, if you don't have anything attached to the complaint whatsoever supporting it. Q based on? A I'm not sure which particular one. What case is it What case is that -- what case is that understanding

based on that you're saying that I, as a party, cannot -THE COURT: Hold on, hold on. I'm not going to turn this into an argument between the two of you. Just as your questions about the facts of the case.

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I don't

now. I'm just as ing you if you did

No. Why would I now that? now.

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question -THE COURT: Go ahead and answer that.

Q A

Was it a Visa account? I don't recall. MR. FREANEY: May I approach the witness? THE COURT: Yes.

Q documents.

(By Mr. Freaney) I'm going to hand you a set of

THE WITNESS: Your Honor, I object to any questioning or introduction into evidence of these. These were not presented at trial when they had the opportunity to present their case, therefore, I object to this line of questioning about any of these documents or the admission of them. MR. FREANEY: I haven't as ed the question, your Honor. THE WITNESS: I'm objecting in advance. THE COURT: Don't object in advance because I don't now what I'm ruling on. THE WITNESS: Yes, sir. Q (By Mr. Freaney) Have you seen those documents at any

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time in the course of this litigation?

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I have had an account with the Chase Ban .

MR. FREANEY: I'm as ing, your Honor, the Defendant a

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 life. life?

A Q

I don't recall. Have you seen those documents at any time in your

I don't recall. I've seen a lot of documents in my

Q document? A Q

Are you able to read the name that appears on that

I am. Is that name, in fact, your name? THE WITNESS: Your Honor, objection. Relevance,

these documents. THE COURT: Overruled. Answer the question. A Q Jill Sheridan. (By Mr. Freaney) Are you able to read the address on

that document immediately under the name?

Q A Q

Are you -- and that's in Conyers, Georgia, isn't it? It is. Are you familiar with that address? THE WITNESS: Objection, your Honor. I don't

understand the relevance of this line of questioning. THE COURT: Overruled. Answer the question. You're contending that they brought this lawsuit without any basis in law or fact.

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Uh-huh (affirmative). 1117 Roc Haven Drive.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A question. Q A Q A Q A

THE WITNESS: And continued it. I'm sorry. THE COURT: And the fact that they did not present any evidence at the trial of the case does not necessarily mean that there's no basis for bringing the action, so you need to answer these questions. THE WITNESS: Yes, sir. I'm sorry. Can you, please, repeat the last

(By Mr. Freaney) Are you familiar with that address? Yes, I am. How are you familiar with that address? I was once a resident of that address. What time period? I don't recall. Several years ago, maybe seven or now.

Q A Q

2007 or 2008? Or seven or eight years ago. Seven or eight years ago? Do you remember when you

ceased to be a resident of that address? A Q I don't really recall. Do you remember when you first became a resident of

that address? A Q Seven or eight years ago.

regarding a Visa card at that address?

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Do you remember receiving statements from Chase Ban

eight. I don't

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A Q

I don't recall. Since you don't recall it's possible that all of

those statements then were sent to that address? A Q A Q It's possible they went to another address as well. It is possible?

Do you recall ma ing payments against the Chase

account in response to those statements? A Q I don't recall. And do you recall being notified that Midland Funding USA?

A Q

No, I was not notified. Not even by the initial communication made by our law

firm prior to the filing of suit against you? A Q A Q A Q What was that initial communication? I'm just as ing you -What are you referring to exactly? A letter that would have been sent to you. Please restate your question.

Hanna and Associates notifying you that Midland had acquired the account from Chase?

and Associates to which I, at that time, prior to you filing suit, I as ed Midland Funding directly via mail if that was, in

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I do recall getting a letter from Frederic J. Hanna

Do you recall getting a letter from the Frederic

had acquired the rights to that account from Chase Ban

I don't

now.

J.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

fact, the case and that I had not been notified which they never responded.

the -- that Midland had acquired the account from Chase? A Q Yes, I did. Do you have any proof of that that you can present to

the Court at this time? A Yes, I do. THE WITNESS: Is that relevant, your Honor? May I object? I mean, this is before the proceedings ever occurred. It has nothing to do with the current -- I mean, this was before the magistrate case they filed against. This was in 2009. THE COURT: Ma'am, the allegations made in this motion is that they brought this action without any basis in law or fact. THE WITNESS: Yes, sir. THE COURT: And if there's a basis for bringing the action, regardless of whether they failed to show up for trial with a witness to prove their case, if there's a basis for bringing it, then your motion is not going to get granted. THE WITNESS: I understand. THE COURT: If there's basis for it, then it might

Frederic

J. Hanna and Associates to verify that they had

29

Did -- in response to the said letter did you as

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

be. THE WITNESS: I understand. THE COURT: So you need -MR. FREANEY: I have nothing further for the Defendant. Than you. THE COURT: All right. Anything else, ma'am? THE WITNESS: Since my motion is also against the Plaintiff, I would li e to as questions of Mr. Freaney in front of the Court, if I may.

MR. FREANEY: I'll ta e the stand. MS. SHERIDAN: Mr. Freaney, how long have you been employed with Frederic J. Hanna and Associates? THE COURT: Hold on. You need to be sworn. JAMES T. FREANEY, having been first duly sworn, was examined and testified as follows: CROSS-EXAMINATION BY MS. SHERIDAN: A Q Since October 18th of 2004. So are you familiar with the ins and outs of the

filing of the cases and all the way through to the trial? Do

A Q

No, I do not. Who would have nowledge of that?

you have a personal

nowledge of the filing in the cases?

30

THE COURT: All right. I thin

she can do that.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A Q

Various members of the firm. In this case do you recall who filed this case

against me? A Q I do not. Let me refresh your memory. The case filed against

me here today and the case filed against me in Magistrate Court was filed by Dennis Henry. Is Dennis Henry employed by your firm currently? A Q A Q A Q A No, he is not. When did he cease being employed by your firm? December 31, 2010. What was the basis of him leaving your firm? I do not now.

Since the beginning of my employment there. He was

employed with the firm as of the date of my employment.

and you still have no idea why he's not wor ing there anymore? A That is correct. I'm not a shareholder in the firm,

and, therefore, I don't have any responsibility for personnel decisions. Q So you cannot attest to whether or not there was any

actual standing for this suit filed or the magistrate suit filed at the time that either of them were filed? A Yes, I can --

So you're saying for seven years you wor ed together

How long did Mr. Henry wor

at the firm with you?

31

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Did you personally review the file before it was

brought in front of the Court? A I do not review cases for suit. That's not my

function at the firm. Q A Please tell me your function at the firm. Well, primarily my duty is to ta e cases after the

filing of an answer and get the them ready for trial; conduct discovery; conduct any necessary motions practice; evaluate the case for possibilities of settlement; and then, if necessary, ta e the case through trial and appeal.

Our firm files approximately eight to 10,000 suits per month. A small percentage of those receive answers. But because of the volume of cases that we file, we probably get in several dozen answers, sometimes a hundred a day.

who actually answer these cases; is that what you're saying? A Q That's correct. So do you have any documentation attached to all of

those complaints, or are you used to filing these bare bones complaints that don't have any ind of evidence attached to them? A I'm not used to filing complaints at all. That's not

my responsibility.

that you -- once you ta e on a case, when you actually review

Well, as you now, as the firm functions, the way

That sounds li e a very small percentage of people

32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

it, is there any documentation other than the complaint? A Q complaint? Frequently, yes. And in my case why was there nothing attached to the

Q gotten it? A Q

Have you had chance to review the file since you've

Yes. O ay. That's, what, more than four months ago, so

can you, please, tell me why there's nothing attached to the complaint still? A Because once a complaint is filed you're not allowed

to change it. It becomes part of the court's permanent record. Q You didn't introduce anything at trial regarding my

contention that there was no basis for the suit. A That wasn't an issue at trial. The issue -- your

contention that there was no basis for the suit is an issue in this motion. It's not something the Court could have decided at trial. Q Mr. Freaney, you said you handle cases on appeal; is

that correct? A Q A I do. Are you familiar with Worth versus Cash, Mr. Freaney? Yes. I was lead counsel on the appeal.

I don't

now.

25

And do you recall the disposition of that particular

33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

appeal? A Yes. A judgment that was issued for the Plaintiff by

Division 5 of this court was reversed by the Court of Appeals. Q A And on what grounds was it reversed? There was no -- at the time of the filing of motion

for summary judgment, there was no proof of the assignment of the account other than the recitation and the affidavit that the account had been assigned from the original creditor to the Plaintiff. Q And so you were aware that that was overturned based

on your insufficient assignment evidence; is that correct? A Q Can you restate the question. Yes. Worth versus Cash, it was appealed and it was

found that based on the insufficient evidence of assignment it was overturned -- it was reversed. A Yes. It was found that Plaintiff was not entitled to

summary judgment and that there was a genuine issue of material fact for trial in that case. Q And did you attached any assignment materials to the

Worth versus Cash case when you filed that case? A Q I didn't file the Worth versus Cash case. After reviewing that case on appeal, you obviously

reviewed the file, what documentary evidence did you present to

24 25

the court supporting your contention that you should be granted summary judgment for that assignment case?

34

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 case.

I didn't handle the summary judgment motion in that

Q A Q A

Did you argue the appeal on that case? No. I briefed the appeal in that case. Did you brief the appeal? I did. MS. SHERIDAN: One second, your Honor. I'd li e to

point out that in Worth versus Cash that action was also on an open account just as the action that they filed against me in State Court was. THE COURT: Ma'am, you've got this witness on the stand. If you have questions, as him questions, but don't ma e arguments now. MS. SHERIDAN: Yes, sir. Q (By Ms. Sheridan) Mr. Freaney, are you aware that in

Worth versus Cash that the evidence presented was insufficient to support on an assignment on an open account? A No, I'm not aware of that. I'm aware that the

evidence was insufficient to support the granting of summary judgment to the Plaintiff. Q Are you aware that there was an affidavit attached to

the request for summary judgment?

23 24 25

A Q

I am aware of that.

particular case?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

A Q

None was filed with the court. Are you aware that an assignment must be in writing

in order for the contractual rights to be enforceable by the assignee? A I'm aware that that's generally the case. I'm also

aware of some exceptions to that rule. Q I'm actually reading directly from the Worth versus

Cash opinion here. Are you aware that a party may assign to another a contractual right to collect the payment including the right to sue to enforce the right, however, the assignment must be in writing. Mr. Freaney, did you provide me with a copy of that assignment? A I did not personally provide you with a copy of that

assignment. Q A requests. Q And do you recall the answers that were provided to Did I request a copy of that assignment? I'm sure you did. You filed extensive discovery

me during discovery? A No, I haven't memorized them.

Was any

ind of affidavit ever turned in on this

35

23 24 25

assignment or anything provided to me in response to my request for that? A There is one in my file, so I thought it was.

36

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

documentary evidence that you had provided to me that supports your standing to sue? A No. As I stated, I wasn't responsible for filing

discovery responses in the case.

received any ind of documentary evidence whatsoever and none is before the Court? You immediately rested. Is that correct, you have not given me anything whatsoever? A I have not given you anything, but I believe based on

what's in my file that copies of the assignment and copies of the statements were served on you as part of discovery responses. Q A You believe that to be true but you're not sure? No. It's just based on -- it's an assumption based

on my review of the file.

discovery and cited multiple discrepancies with the discovery that was provided to me? A I did see that in the file.

O ay. Are you also aware that I responded to

So as it stands now, as far as you now, I haven't

No, sir, there wasn't. Do you recall any

22

Do you generally recall if there was any ind of

ind of

21 22 23 24 25

Did you see the Rule .64 certification that I

attempted in good faith to contact your firm to resolve the discovery dispute? A Q I did see that in the file. Did you see in my motion that I called your firm and

37

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

was told that Dennis Henry, the person who filed this suit, does not ta e phone calls? Is it true that Dennis Henry, or any other attorneys such as yourself, do not ta e phone calls?

when he was with the firm.

Associates that he didn't. THE COURT: Ma'am, you can't testify. MS. SHERIDAN: I'm sorry. Q A Q A Q (By Ms. Sheridan) Do you have a voicemail box? I do. You do? Does Mr. Henry? When he was with the firm he did. How do you access that voicemail? Can it be

transferred or can you just dial in? A Q A Both. And what is your extension? 3012.

I was told by an employee at Frederic J. Hanna and

No. I probably ta e 15 to 20 a day and so did Dennis

20 21 22 23 24 25

Q A Q

And what is Mr. Henry's extension? It was formerly 3006. So just to wrap this up, do you -- you understood

what was expected, based on what the Court of Appeals said, to support a suit on open account? You understood the documentary evidence that was required, based on Worth versus Cash, to

38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

bring a similar suit -A Q A No. -- to court; is that correct? No, I didn't, because Worth versus Cash was a summary

judgment case. Q A Which also dealt with evidentiary issues? It didn't apply to the pleading standards or what

evidence is required at trial. Q A Q It applied to the assignment? Only in the context of a summary judgment motion. So, Mr. Freaney, had you not rested what evidence did

you plan to produce at trial? A Well, I had a witness been available I would have

introduced the terms and conditions of the Chase cardholder agreement, a set of statements of the Visa account, the assignment document from Chase to Midland, and an extract from a computer spreadsheet that specifically assigned your account as one of the accounts to be transferred.

20 21 22 23 24 25

once in discovery? A You filed extensive discovery requests. I'm sure

they included those items. Q But you were planning on introducing them at trial.

And even after good faith efforts that I made to try to get ahold of those so that I could defend my case, you were not

39

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

going to supplement your discovery nor provide me with the documents I requested, but you were going to present them at trial? A No. I would have made sure that everything that I

presented to you at trial had been provided to you beforehand. Q A Mr. Freaney, are you prepared for this hearing today? I mean, I wasn't prepared to be answering questions

here on the stand. That wasn't something I had anticipated doing. Q Have you reviewed the file -- the complete file

regardless of how much discovery I filed? Have you reviewed

read through all of it? A I believe I have read through the entire file at one

point or another. I didn't do it immediately before this hearing. Q So are you aware that I contacted your firm multiple

the file? Do you actually have personal

19

And do you not recall me as ing for those more than

nowledge? Have you

18 19 20 21 22 23 24 25

times to try to get these documents? A Q Well, I'm not sure what you mean by these documents.

spreadsheet you're tal ing about. I have as ed for all documents you planned on presenting at trial. A Q Had I had a witness available to authenticate them. But you were going to just introduce them without

supplementing discovery which I as ed for well in advance of

40

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

trial; is that what you're saying. A No, I would not have done that. I would not have not

supplemented my discovery responses. I would have made sure those documents were in your hand prior to trial so that, you now, you couldn't ma e the complaint that you hadn't seen them

and also to head off the motion to compel and motion in limine that you filed. Because I new the case was not going to go to trial, I didn't provide those documents to you.

to trial?

witness available to testify to authenticate those documents. Q But you're saying that had your witness been

available that morning you were planning on presenting all of this evidence? A Well, because the witness was not available that

Because I new I wasn't going to be able to have a

And why is it you

new that this was not going to go

These documents you spea

of, an assignment, whatever

17 18 19 20 21 22 23 24 25

morning, I wasn't planning on presenting any evidence. Q A And you decided that that morning; is that correct? No. I decided that probably several wee s in

advance. Probably.

responsibility for handling this case?

expand a little bit, files don't belong to one attorney or another. Attorneys frequently share responsibilities --

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

Q A Q

So are you saying --- in cases. -- that you wor ed in concert with Mr. Henry on this

case; is that what you're saying? A as well. Q So you should be completely aware of what was going ind of responses and requests were coming out of Not only with Mr. Henry but Mr. Green and Mr. Mosely

your office in response to discovery. You should be completely aware if you wor ed in concert with each other. A I don't have an exact chronological memory of

everything that was filed, served, responded to, or sent out; and I have not memorized the contents of each and every document. So to the extent that completely aware means that, no, I'm not completely aware.

on and what

Several wee s before the trial. I should say, to

41

At what point did you actually ta e on the

16 17 18 19 20 21 22 23 24 25

Have you had any discussions with Mr. Green regarding

the discovery responses that your firm provided to me?

Are you aware that your firm accepted, on

November 9th, via mail, my second request to resolve the discovery dispute? A Yes, I'm sure we did. MS. SHERIDAN: Your Honor, may I approach the witness? THE COURT: Yes.

1 2 3 4 5 6 7 8 9 10 11 12 13 14

(By Ms. Sheridan) Can you, please, read to the Court

the address on this USPS return receipt. A Yes. It's 1427 Roswell Road, Marietta, Georgia

30062. That's the principal offices of the firm. Q And do you -- can you, please, state the date that it

was received?

MS. SHERIDAN: Let the record show that I did send a request to resolve the discovery dispute which was received at the principal address. Q document? A I'm sure I have at some point. I can't tell you what (By Ms. Sheridan) Now, Mr. Freaney, did you read this

its contents are right now based on my memory.

It loo s li e 11/9/10.

No, I didn't spea to him about it.

42

16 17 18 19 20 21 22 23 24 25

objections, that they should be more specific as to what they're actually referring to? A No, I don't recall that. But if you say it, I'm sure

that you did.

information in my discovery so that I may depose that witness? A I'm sure you did. However, there aren't any

witnesses. There are no witnesses to -- that Midland Funding could ma e available who are located within this state, so you wouldn't be able to ta e the deposition, at least, not using

43

1 2 3 4 5 6 7 8 9 10 11 12 13

normal procedures regarding that -- regarding such witnesses

opposing party gets to have -- ma e a deposition or not? A No, it certainly isn't. But I can tell you for a

fact there were no witnesses in this state to be deposed individually by name. Q Knowing this now, why didn't you just answer that

question honestly in this discovery when I as ed for that? A I didn't answer any questions in discovery because

that wasn't my responsibility. Q It's your firm. Is it normal for your firm to just

print out boilerplate discovery answers and just send them out --

Is that your decision to ma e whether or not the

Yes, sir, I did. Do you recall me as ing for witness

15

Do you recall me as ing. In regard to the general

14 15 16 17 18 19 20 21 22 23 24 25

A Q A

No. -- objecting to everything? No, it's not. We try and answer each individual

discovery request truthfully and completely. Q A Can you explain Clay Mosely's role in your firm. Clay is an attorney in this firm. He has similar

responsibilities to those which I described to you earlier. He also handles consumer arbitrations. Q Are you aware that Clay Mosely was the attorney that

dismissed the magistrate case against me? A Q Yes. I do recall seeing that dismissal in the file. Do you recall -- have you had any discussions with

44

1 2 3 4 5 6 7 8 9 10 11 12

Clay Mosely regarding this case? A Q A Q A Q Yes, I have. On what dates, do you recall? I don't recall the dates. Would this be before or after the trial? Both. So before the trial, if you had discussions with now that Mr. Mosely had several

phone conversations with me; is that correct? A file. Q Do you recall what those notes were about? I do recall seeing some notes to that effect in the

Mr. Mosely, then you should

13 14 15 16 17 18 19 20 21 22 23 24 25

Well I'm going to decline to answer that on the

grounds that that's an intra-firm communication. It's privileged from disclosure. Q Are you aware that Clay Mosely told me on the phone

that he, in fact, had a witness that that witness would be testifying against me at trial, and this was before my motion to compel came in? Are you aware that he told me that? He also told me that he had documentary evidence that he has not provided me; are you aware of that? A happened. Q A Why do you say that? Because we don't do those type of things. No. I'm not aware of that, and it wouldn't have

45

3 4 5 6 7 8 9 10 11

A Q

Well, he wouldn't. We don't lie to people. O ay. Your discovery responses are completely wrong.

I mean -- I'm sorry. Excuse me. Clay Mosely -- how long has Clay Mosely been employed by Frederic J. Hanna and Associates? A Give me a minute. It was about summer of 2008. He

was hired after me. Q A And what is his role with the firm? As I stated previously he's a litigator. He handles

Hanna and Associates and say something li e that?

So why would he be acting on behalf of Frederic J.

12 13 14 15 16 17 18 19 20 21 22 23 24 25

pretty much the same responsibilities that I do. Once an answer has been filed, he'll review the answer, conduct any necessary discovery, conduct any necessary motions practice, evaluate the possibility of settlement, attempt to communicate with the other party or their counsel regarding settlement, prepare the case for trial, and handle the case through trial and appeal, if necessary. And as I said he also has some substantial experience in consumer arbitrations and that was a major portion of his practice. Q Did Clay Mosely ever mention to you the magistrate

case as far as him telling me, Don't worry, we're just going to refile it anyway? A I'm going to decline to answer that question because

that's a communication within the firm concerning a client

46

1 2 3 4 5 6 7 8 9 10

matter that was privileged. Q Are you aware that I attempted to settle this case

way before trial with Clay Mosely? A Yes. And I'm also aware that Mr. Mosely offered you

a wal -away settlement if you would only release all of your peripheral and related claims to this case and you declined to do that. Q A you -And how much was that offer for? It was a wal -away settlement. We would not pay

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A

Can you tell the Court a dollar amount? The amount would be -- the actual amount of payment

would be zero, that is, you would not pay Midland anything and neither the Midland nor the firm would pay you anything. The benefit to you would be substantial since essentially you would be discharging a debt that was several thousand dollars. Q Now, do you recall that I countered and all I wanted

was the cost I expended out of poc et; and at that time, do you recall what that amount was? A I suppose it was something less than $500. But, no,

since I didn't handle those discussions myself I'm not aware of the amount you offered to settle for. Q But you are aware of the terms of which -- your

client offered to settled but you're not aware of the terms which I requested, you're not aware of that whole discussion?

47

1 2 3 4 5 6 7 8 9

A Q

No. No, I can't say that I am. Were you provided any documentary evidence regarding

my actual cost at the time of that negotiation for settlement with Clay Mosely? A Q No, because I wasn't involved in that. O ay. So you were not involved in the case at all at

that time; is that what you're saying? A I can't say I wasn't involved in it at all. I can

say I wasn't involved in negotiating the settlement. Clay was

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

handling it, Mr. Mosely. Q I'm sorry. When did you say that you actually became

involved in this case, Mr. Freaney?

that I had with Mr. Mosely were, in fact, days before I filed my motion to compel, days? A No. Again, I don't have the exact chronological

sequence of events memorized. Q Are you aware that I made an attempt to avoid this

trial altogether? A Yes. And so did Mr. Mosely on behalf of Midland

Funding, but we just couldn't reach a meeting of the minds. Q Bottom line: Do you agree that in response to this

discovery that you served on me that I as ed for discovery supplementation and documents that are missing from the

48

1 2 3 4 5 6 7 8

original discovery? Do you agree that I have requested those? Do you agree that I had requested the assignment of the debt? A Yes. I would say that was fairly encompassed within

your requests. They were quite comprehensive. Q But the bottom line is: You did not provide me with

that assignment whatsoever? A I didn't provide you with anything because I didn't

answer the discovery.

O ay. And are you aware that this -- the discussions

Several wee s before the trial.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Q A

Your firm did not provide me with that. I have a copy of the assignment in my file. I'd be

glad -- and so I assumed that that was provided with you along with all the other evidence in this case -- regarding this case, I should say. Q When the case was handed to you and you were suppose

to evaluate the case, you should have evaluated whether the assignment was -THE COURT: Hold on. Q (By Ms. Sheridan) -- right? THE COURT: Hold on. MS. SHERIDAN: I'm sorry. THE COURT: O ay. You turned it into a question. But you need to as questions, not try to ma e statements. Q (By Ms. Sheridan) At the time that you received the

case, did you evaluate the file to see if an assignment had actually been presented to me?

49

1 2 3 4 5 6 7

No. I can't say that I combed through the discovery

to see, you now, if that was specifically attached to any discovery response.

presented to me in my case; is that correct?

the assignment was in there and I assumed I provided it to

No, it's not correct. I loo ed in the file. I saw

You did you not loo to see if an assignment

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

you -- that it had been provided to you, since we always do that. Whenever we've got an assignment in the file, as a matter of routine we send that to the defendant if the defendant has filed any discovery responses at all, even if they haven't as ed for it. Q A Did your firm pursue discovery upon me? I don't remember. It is routine in cases where an

answer is filed that we do serve discovery requests upon the

very early on in the case. Q So you have no recollection of whether or not your

firm served discovery upon me? A Not without going through the file. I'm sure you

could tell me whether we did or not though. Q I'm not going to, Mr. Freaney. I understood -THE COURT: I'm going to recess for a few minutes. If you need to loo through anything, go ahead and do that.

2 3 4 5 6

THE WITNESS: May I stand down? THE COURT: Yes, you can.

THE COURT: We'll recess for ten minutes. (A recess is ta en.)

THE WITNESS: And I'll ta e the stand bac

MS. SHERIDAN: Than

defendant, but I don't

now if we did that. If we did, it was

50

you.

--

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

(By Ms. Sheridan) Mr. Freaney, can you, please, tell J. Hanna and

Associates, should not pay my attorney's fees and cost of litigation. A Well, this is the American system. Under the

American system the parties bear their own fees and costs.

please, point out why specifically your firm should not pay -A The firm -- well, the standards for assessing fees

against a firm are the same for assessing fees against the litigant. The party moving to have its fees has to prove either that there was such a complete absence of a justiciable issue of law or fact that no reasonable person could have believed that the claim would have prevailed. Or the movant has to prove -Q You're not -THE WITNESS: Your Honor, I'm allowed to -(More than one person tal ing.)

51

1 2 3 4 5 A

THE COURT: Let him answer the question. (Continuing) Or the movant has to prove that the --

that an action was substantially vexatious, substantially frivolous, or substantially groundless, or that it was brought for an improper purpose, or that the party unnecessarily

But I'm as ing why your specific firm, can you,

the Court why you feel your firm, Frederic

THE COURT: O ay. You can continue.

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

expanded the proceedings. And in this case I don't feel that my firm necessarily expanded the proceedings or acted in any way improperly. We brought a suit. We responded to the discovery as we normally would in any case of this type, whether or not the party was represented by counsel. We have the documentation of the debt, the documentation of the assignment in our hands, and I assume that such documentation as we had was provided to you. I now we did not get you the spreadsheet of information because our client never made that available to us. So the attachment to the assignment would not have been provided to because it never got out to us. Instead, our client, assessing the possibilities of excess in this litigation and the cost of sending a witness out here elected not to ma e their witness available for trial and therefore we dropped the case, after ma ing a good faith effort at settlement. So I don't thin , based my nowledge -Q (By Ms. Sheridan) Mr. Freaney, you dropped the case?

What does that mean?

52

1 2 3 4

That is we -- it being brought into court a second

time, because we dismissed it once without prejudice, we elected not to put a case on at trial. Had you not pleaded your counterclaim, which didn't have any merit anyway, we would

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

have dismissed the case so you wouldn't have even had to come to court. Because you insisted on pressing you counterclaim despite our efforts to settle the case, we had to come to court to ma e sure that nothing happened on your counterclaim.

without substantial justification or unnecessarily expand the proceedings, and that's why I feel that my firm shouldn't be assessed with your expenses nor should my client. Q At any time during the litigation, can you, please,

tell me why you did not go ahead and just dismiss it if you determined that witness was not going to be available. Why did you bring me to trial when you could have as Plaintiff just dismissed your action? A Because you had a counterclaim pending that you

refused to drop. Q And did I not offer a settlement agreement based on

that counterclaim? Did you communicate that to your client? A I'm not going to discuss what -- I'm not going to

answer a question based on what my firm did or didn't communicate to our client -Q In your --

1 2 3

expenses, did you object to any of my expenses I submitted to

So that's why I feel we didn't either bring the case

53

A Q

-- on the grounds of privilege. In your response to my motion for attorney's fees and

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

the Court? A I objected to all of your expenses because I don't

feel we should be assessed any of them.

for a dismissal or object to the counterclaim? A Yes, we did. We filed a motion to dismiss the

counterclaim, and then Mr. Mosely as ed you to dismiss it as part of a settlement of the case. And -Q A Did you --- for that matter, just to complete my answer, we

even -- I even as ed the judge now presiding to dismiss your counterclaim at the close of the case. Q Right. Can you, please, state the date on which your

firm as ed -- filed a request to dismiss my counterclaim.

record. Q Are you aware that there is no such request to this

Court filed with this court? A No, I'm not aware of that because I've seen the

motion in my file. MS. SHERIDAN: I have no further questions for this witness, your Honor.

1 2

THE COURT: All right. You can step down. Do you have any other evidence?

I don't

now the date, but the pleading is in the

54

And did you, at any time during the litigation, as

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MS. SHERIDAN: Your Honor. Are you already in receipt of all the discovery responses and the discovery requests that were submitted to the Court with the motion to compel? THE COURT: I have whatever was attached to your motion to compel discovery. MS. SHERIDAN: O ay. All of the exhibits that were attached to that I would also li e to submit into evidence. THE COURT: Those are not part of the court's file. MS. SHERIDAN: I would li e to tender into evidence the discovery requests and the discovery responses during the litigation. And, Mr. Freaney, you have a copy of these as I provided to you with the motion to compel and the motion -- you should have it in your file there. MR. FREANEY: Yes. And I'll stipulate their admission into to evidence. THE COURT: O ay. MS. SHERIDAN: I am also submitting into evidence Exhibit G which is the second request to resolve the discovery dispute letter. May I approach the bench?

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THE COURT: Yes.

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MS. SHERIDAN: That is all, your Honor. THE COURT: All right. Rather than -- Mr. Freaney, anything? MR. FREANEY: Your Honor, I have no evidence to present against the motion. I need to correct one thing in my testimony. There's a motion to dismiss counterclaim in my file. It's dated July 6, 2010 and it bears the original signature of an attorney in our firm. I will, therefore, say I was wrong. We did not file a motion to dismiss the counterclaim during the pendency of the case, so I have to correct that because I just too a second

Why it never got served I don't now, but it must not have been filed with the court. But I'll stand by my other statements regarding the motion to dismissed. We did attempt to get it dismissed by agreement and I did request the dismissal at the time of trial. And with that correction of my earlier testimony I'll rest for the Respondent. THE COURT: All right. Closing arguments. MS. SHERIDAN: Your Honor, this litigation started a year and a half hear and it's ta en a year and a half of my time, my life. It has been extremely stressful. The litigation initiated at Magistrate Court. I simply

56

loo

at my file and the original motion is in our file.

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

documentary whatsoever to support this claim. There was no documentary evidence attached to complaint in Magistrate Court. There was no documentary evidence whatsoever attached to the complaint in State Court. As me as a person it's the same as somebody coming in my door, noc ing on the door and saying, Hey, you owe me for Joe Blow down the street, providing me no evidence whatsoever. Am I suppose to ta e their word for it? I don't now. The law points out that, in Worth versus Cash, the evidentiary documentation was scrutinized as far as the

the evidentiary requirements of the case going into it. The firm is well aware of that particular requirement of the case, so going forward they new what they were doing.

In Magistrate Court the action against me was voluntarily dismissed by Clay Mosely who, at the time, just laughed at me at said, You're never going to get it, which was in reference to the copy of the assignment, and we're just going to refile. And this instant action is the refiling of that suit and they followed up on that and they still never provided me with any ind of meaningful

57

the whole time, bac

all the way to Magistrate Court.

They

new that I was as ing for that copy of assignment

assignment and Mr. Freaney was on that case and he

requested in all good faith to provide some ind of

new

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

documentation and never presented any to the Court. They never as ed the Court for a dismissal of my counterclaim, and they are the ones that filed the suit. The Plaintiff filed the suit and could, at any time, request dismissal. And as the Plaintiff would li e you to believe, he would li e you to believe that it is because of me that they couldn't dismissed this case which is just patently ridiculous. In fact, I've bent over bac wards to try to resolve this so we don't have to go to trial. I'm a pro se. I'm terrified of a trial. In fact, I had to go to a trial because they drew it out and -- all the way to that point. I offered to settle this thing. All I wanted was $500 for what I had expended for my attorney fees. At that time I didn't have any expenses of any other ind. And their client and Mr. Clay Mosely who was negotiating the settlement with me would not budge, not at all. They were willing to offer me nothing in exchange for me to sign away all of my rights as a consumer to ever, ever do anything against them or their client, releasing Fred Hanna and Midland Funding forever, sign a confidentiality agreement, that the costs would be taxed against me. It would be a written off debt which means I'll get a 1099 in the mail and have to pay taxes on it. There was no way that would have been a fair settlement to me, so it's

58

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

unreasonable for him to say that I didn't accept it when I should have and they still offered zero dollars and zero cents along with all if those requirements of a settlement agreement which is ridiculous. No one would accept that agreement. And the bottom line is: All I want is to be whole again. All I want is to get the expenses that I had to pay out of poc et dealing with this. None of it was fun. None of it was voluntary. And all I ever as ed for was a piece of paper that said, yes, we actually own this debt and you owe this debt to us. That's all I ever as ed for and they fought me tooth and nail all the way here to today dealing with this. And I'm as ing the Court, under 9-15-14(a) and 9-15-14(b), which (a) is a must and (b) is a shall, for the expenses that I have incurred not only with the attorney's fees, having to get an attorney for the State Court, having to pursue discovery and deal with discovery

compel and drive all the way here for my mileage and time, and it is obvious and on the record that they continued to pursue this case nowing that going forward to trial they were not going to have a witness. They were not going to provide me with documentation. The fact is when I tal ed to Clay Mosely on the

59

on my own, and have to as

the Court for a motion to

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

phone, he specifically told me that I was going to lose this case, that he got a witness that he was going to present and he had documents he was going to present, and he refused to give me those documents, after I as ed multiple times. And that was when I was forced to file a motion to compel days before trial, because I attempted at the last minute -- he was stonewalling saying he was going to give them to me, never did. And that was really unfair for me to have to present a case that I was not prepared for, because I didn't now what they were even going to present, and they had a duty to supplement those responses if they, in fact, had them.

to have a witness, they had a duty to, in fact, supplement that response, which I specifically requested any witnesses and exhibits that they planned on presenting at trial, which they obviously had nowledge of and just simply did not give to me to present to prepare for my case. So we're drug here, and every other time, because of the ridiculous, frivolous nature of Fred Hanna and his

client's actions during this; and I'm as ing under both (a) and (b), either or both, to have my expenses granted and any expenses for Mr. Silverbach to be here today. I

60

client -- both Frederic

J. Hanna and Associates and his

And if they, in fact,

new that they were not going

1 2 3 4 5 6 7 8 9 10 11

did not want him to have to be here today. It was big -I mean, this is an inconvenience for everyone and I tried so hard for this not to have to happen today for everybody's sa e, because it cost everyone money and precious time, but the Plaintiff still insisted on those unreasonable settlement terms and they were absolutely ridiculous. And the bottom line is: I wanted so little money. They were actual expenses that came out of my poc et having to deal with this and they still would not do it. So I'm as ing the Court for all the expenses out of poc et, Mr. Silverbach's fees for today, expenses for him being here, his mileage, and the witness fees I paid him, and all the expenses that I incurred in the discovery disputes as filed with the court, and for their conduct during this litigation. And that's all, your Honor. THE COURT: All right. Than you. MR. FREANEY: Your Honor, I believe I stated, for the record, during my testimony the legal reason why the Court should not award attorney's fees in this case. I certainly wasn't expecting to do that that way but that's fine. The movant hasn't met the standards of either 9-15-14(a) or (b) either for a mandatory or a discretionary award of fees. She simply hasn't made out

13 14 15 16 17 18 19 20 21 22 23 24 25

12

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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

law or fact or that the Plaintiff acted in some manner improperly in bringing the action. So, therefore, your Honor, I'm not going to go to the -- I'm not going to go over in detail of the -- and discuss the reasonableness of any particular expense that the movant/Defendant is claiming. I do want to point out that the counterclaim in this case is simply not proper under either of the two legal theories at best, OCGA 13-6-11 or OCGA 9-15-14. The first theory is not tenable because the Defendant can't use that just to raise a compulsory counterclaim of the type. The second isn't tenable because that type of claim has to be raised by motion. And it was, in fact, the counterclaim that forced this case to come all the way to trial because it hadn't been disposed of prior to that date, because the -- we were unsuccessful in getting the Defendant to drop it. As a final house eeping matter the Court in its final judgment in the underlying case didn't enter an order disposing the counterclaim. Whatever the Court's ruling

counterclaim has either been dismissed or mooted or somehow or other that the action is also terminated as the counterclaim so that we do have a final judgment in this

is on this motion, I would as

the case that this action lac ed and justiciable issue of

the Court's order note the

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

case. I believe all parties will agree that it's time for that to be done. And I than the Court for its time. THE COURT: All right. MS. SHERIDAN: Your Honor, may I rebuttal? THE COURT: You can. You have the burden so you can. MS. SHERIDAN: I would li e the Court to consider the motion that I put before it citing every reason in detail specific to why I should be awarded the fees which are specific to every issue with discovery. I would li e my motion to be considered. I would li e to point out that Nesbit v. Nesbit, 2009, as long as I bring my motion, 9-15-14, before this Court, it really doesn't matter that I had another counterclaim. I brought it. At trial we had this discussion. I brought it orally as a motion. Not only that I brought it within 45 days of the end of the trial. I brought it twice. And Mr. Freaney did file a response to that, so his argument that it was improper and whatnot is completely irrelevant. I did all of the proper things that I needed to do to prosecute this counterclaim. And that's all.

this under advisement. I want to loo through all the discovery materials and I'll get an order out some time

THE COURT: All right. Than

you. I'm going to ta e

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THE COURT: And for the record I'm going to -- the exhibits were related when they're used. MS. SHERIDAN: Yes, all the discovery ones. THE COURT: I'm going to and then hand them to the court reporter. MR. FREANEY: Very good. And just to clarify for the record I've stipulated -- the Respondent stipulates to the admission of all of them so...

(Proceedings concluded.)

THE COURT: All right. Than

MR. FREANEY: Than

MS. SHERIDAN: Than

25

next wee .

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you, your Honor. you.

you.

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