wendesdaughter

Members
  • Content Count

    13
  • Joined

  • Last visited

Community Reputation

1 Neutral

About wendesdaughter

  • Rank
    Member

Profile Fields

  • Location
    MI
  1. Thanks shellieh98, I was thinking about it, but since MI only charges $20 to file a motion I'm only out $40 and I kinda want to just be done with it. It's been stressful for me!
  2. I won my case by reading the information on this forum. I didn't get it dismissed with prejudice, but without prejudice is still a win. If you live in MI and are being sued by a JDB I'm here to testify that these methods work. Just do your homework and you'll be fine. Thanks bmc100 and everyone else who contributed information! I couldn't have done it without you guys!
  3. Thank you everyone who helped me with this case. I ended up winning with a Motion to Dismiss without prejudice. I wanted to get with prejudice, but the Judge said he couldn't grant it. Maybe I should have filed the Motion for Summary Judgement, but I thought it was too late to do so. Anyway, thanks again for all your help everyone. I couldn't have done it without you.
  4. Ok, that sounds great. Thank you. So just to be clear, I should wait until I get my pre-trial date to start doing this? I just don't want to wait too long and miss any opportunities. In this MSJ, prejudice would attach assuming the judge approved it? Should I do this before their file theirs? I think timing is the big thing that has me confused here if you hadn't guessed.
  5. Those were forms I got from the court. They were preformatted. You check the box that applies and fill in the line. The ones I bolded were my defense. On the first page you can either check agree, disagree or claim no knowledge and fill in the rest of the sentence stating why. On the second page you check preformatted affirmative defenses or list your own under 13. Other:
  6. Confirmed with the court, it's a civil case in district court. It's the same window at the court as small claims so apparently people get confused about it a lot. I still feel retarded though!
  7. Also, Please let me know if you want me to post Midland's response to my Motion to Strike.
  8. Now that I think of it I might be totally wrong about it being in small claims court. I think it's the civil division of the district court. I'm sorry, this whole process is still very new to me. I'll check with the court tomorrow. I think for some reason I was thinking it was the same thing.
  9. Thanks for your help guys. I know you all know how hard it can be to try to navigate this sea of information and not be exactly sure you're doing it right. The first notice I got of the lawsuit was an order of default judgement in the mail forwarded from my old address. It was issued 4/30/13 First summons issued 11-19-12, expired 2-18-13. This is their original complaint: Now comes Plaintiff, Midland Funding LLC Assignee of , GE MONEY BANK by and through its attorneys, STILLMAN LAW OFFICE, and for its Complaint against the Defendant, states as follows: 1. that the Defendant herein is indebted upon open account or pursuant to contract, and defendant accepted same. (original Account:) 2. Performance has been completed and defendant agreed to pay the account. 3. There is presently due and owing, over and above all legal counter claims, the sum of $. 4. Plaintiff requests judgement for $ plus interest, costs and attorney fees. I declare the statements above are true to the best of my information, knowledge and belief. Respectfully submitted, STILLMAN LAW OFFICE Dated Oct 12, 2012. Attached is an affidavit: MCM Employee whose business address is....., certifies and says: 1, I am employed as a Legal Specialist and have access to pertinent account records for Midland Credit Management, Inc. ("MCM"), Servicer of this account on behalf of the plaintiff. I am a competent person....Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's GE MONEY BANK (hereinafter "the account"). I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on the plaintiff's behalf. 2. MCM's records show that the defendant(s) owed a balance of $. Such balance may continue to accrue interest at the rate set forth in the cardholder agreement/original contract and/or required by law, until suit is filed, after which interest on the unpaid balance shall accrue as required by law and as set forth within the terms of the statute. I certify under penalty of perjury that the foregoing statements are true and correct to the best of my knowledge. Signed August 28 2012, Notarized Aug 28, 2012 Both in the same state The complaint and affidavit are super old. They actually got a second order for summons and complaint for some reason but they got it before the original one expired. The second summons was issued 2-14-13 and expired 5-16-13. They supposedly served me personally 3/17/13. They also filed an order for alternate service a week after their second summons and complaint. In this one it says they may serve me by first class mail, tacking to my door or certified mail. Strange that they chose the affidavit from the process server as their proof of service. My answer seems kind of lame now that I know a bit more about answering. My answer: Defendant,Attorney for defendant, in answer to the complaint, states:1. disagree with the statements in paragraph 1 because I do not owe the debt alleged .2. disagree with the statements in paragraph 2 because I do not owe the debt alleged.3. disagree with the statements in paragraph 3 because I do not owe the debt alleged .4.disagree with the statements in paragraph 4 because I do not owe the debt alleged. continued on page 2.IMPORTANT: If you have affirmative defenses, you must state them now using the last page of this form. If you do not, the court may prohibit you fromraising them later. An affirmative defense is a defense claiming that the plaintiff is not entitled to a judgment because other facts exist that create a lawful defense.Affirmative defenses allow you to provide information to the court that is not stated in the plaintiff’s complaint.CERTIFICATE OF SERVICEI certify that on this date I served a copy of this answer on the plaintiff(s) or their attorney(s) bypersonal service. first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3).CASE NO. AFFIRMATIVE DEFENSESDefendant, Attorney for defendant, states the following affirmative defenses:1. I paid this debt in full (satisfied). Attached is proof of payment.2. This action is barred by the statute of limitations becausethe plaintiff failed to sue within six years of , the last activity on the alleged account. MCL 600.5807(8).the alleged contract involves a motor vehicle retail installment sales contract or the sale of other goods, and the plaintifffailed to sue within four years of , the last activity on the alleged account. MCL 440.2725(1).the plaintiff failed to sue within three years after the alleged contract of sale of a mobile home on .MCL 125.2333.3. I paid an amount that the plaintiff accepted as payment in full (accord and satisfaction). Attached is proof of payment.The debt was discharged in bankruptcy. The case number was .4. The contract is void or voidable becauseI was a minor when the alleged contract was made. My birth date is .I was not mentally competent when the alleged contract was made. Probate case number .Attached are my letters of conservatorship/guardianship.there was no valid contract (no meeting of the minds) because .5. The contract was severely unjust or extremely one-sided (unconscionable).<---------- this one is checked6. I am not liable for the alleged damages because of the plaintiff's contributory negligence.7. The alleged contract is unenforceable because it is not in writing (statute of frauds).8. My vehicle was repossessed and later sold in a commercially unreasonable manner. MCL 440.9607(3).9. The contract should not be enforced because of the plaintiff’s improper conduct (fraud and/or duress).10. The goods purchased were defective (failure of consideration).11. The terms of the contract did not express what the parties intended (mutual mistake).12. I have not been credited for all payments made on the alleged account. Attached is proof of payment.13. Other:The debt has been reported to the creditor (GE Moneybank) as fraud. <--------This one is checked My motion to strike: STATE OF MICHIGANIN THE JUDICIAL District COURTMidland Funding LLC, Case No: PlaintiffVs., an Ind.,Defendant._________________________,Stillman Law OfficeBy: Michael R. Stillman (P42765)Attorneys for Plaintiff7091 Orchard Lake Rd., Suite 270West Bloomfield, MI 48322-3651(248) 851-6000_________________________,MOTION TO STRIKE AFFIDAVIT OF .......... The following court rule governs motions to strike pleadings and authorizes the relief sought in the Defendant’s accompanying motion: ( Motion to Strike. On motion by a party or on the court’s own initiative, the court may strike from a pleading redundant, immaterial, impertinent, scandalous, or indecent matter, or may strike all or part of a pleading not down in conformity with these rules. MCR 2.115( It is well settled than an affidavit filed in support of or in opposition to a dispositive motion mustinclude an averment that the affiant, if sworn, could testify competently to the facts contained in the affidavit. Such an affidavit must also be based upon the affiant’s personal knowledge as an affidavit based upon an affiant’s information and belief is insufficient to support a summary judgment. In this matter, Plaintiff has submitted the affidavit of Legal Specialist ............... in support of plaintiff’s complaint. Ms. ................ is not an employee of the original creditor GE Money Bank and therefore has no personal knowledge of the account (Original account number ........) or alleged balance. The affidavit states that . ................. alleges that she has personal knowledge of Michigan Credit Management’s records, not GE Money Bank’s records. .................. statements about the alleged debt are hearsay.Finally, the affidavit fails to show affirmatively that .............., if sworn as a witness, can testify competently to the facts stated in the affidavit. This defect alone is sufficient basis to strike the affidavit.For these reasons,. ......... affidavit must be stricken from the record in this action as it was not drawn in conformity with MCR 2.119((1)(a), MCR 2.119((1)©ConclusionWHEREFORE, the defendant respectfully asks this Court to strike the affidavit of ...........pursuant to MCR 2.115(.Respectfully submitted, I certify that a copy of the above document was served to the Plaintiff’s Attorneys on June 21, 2013 by 1stclass mail. I realized later that I said Michigan credit Management instead of Midland.. oh well! Ideas? Comments? Thank you again guys. Sorry for the delayed reply. I work afternoons.
  10. I already filed a motion to dismiss the default judgement and that was granted. The judge then said I had 21 days to file an answer. I filed an answer and at the same time filed a motion to strike the affidavit of the midland employee. That motion was denied in court yesterday. The 21 days to answer has been up for quite some time and we are now waiting for a pretrial date. I'm sorry if I wasn't clear about that. This is small claims court by the way.
  11. Racecar, I have read that thread already. I have already answered and taken other steps and am now in pre trial so I wasn't sure if those circumstances applied to me. I've actually read all the threads that pertain to Midland in Michigan. I still feel so ignorant. I'm looking for something a little more specific, which is why I posted my own thread. If you, or someone, could please answer my specific questions above which I feel are still unanswered after reading, I would appreciate it. Thanks again!
  12. Do I file a motion to dismiss now or is it too late? Do I send an informal request for discovery to Midland or should I just wait for Pre-trial? What do I need to bring to Pre-trial to prove my case i.e. that they have no standing? The suspense is driving me nuts, lol!
  13. Hi All, I had been fighting Midland and Stillman for a few months when I discovered this forum today. I had my motion to strike their bogus affidavit denied in court today and I'm wondering what my next steps should be. 1. Who is the named plaintiff in the suit? Midland Funding LLC Assignee of GE Money Bank 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Stillman Law Firm 3. How much are you being sued for? Around $900 4. Who is the original creditor? (if not the Plaintiff) GE Money Bank 5. How do you know you are being sued? (You were served, right?) Received a noticed of default judgement forwarded in my mail 6. How were you served? (Mail, In person, Notice on door) Was never served, although a process server provided an affidavit to the contrary 7. Was the service legal as required by your state? No, the process server stated he served me personally, but I moved from the address two weeks prior to when he said he served me. Not so coincidentally, it was supposedly on the very last day the summons would have been valid. Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Michigan, Wayne County -- Oakland at the time of Summons and Complaint 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2009 11. What is the SOL on the debt? 6 years 12. What is the status of your case? Suit served? Motions filed? You can find this by calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Default judgement granted, motion for dismissal of default judgement granted "process servers lie" says the judge, he also said I had 21 days to answer, I did and also filed motion to strike affidavit of MCM employee attached to complaint, motion to strike denied today, now going to pre-trial. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No. 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Already answered, waiting for pre-trial notice. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Summons and Complaint, affidavit of MCM employee claiming to have personal knowledge of MCMs accounts.In response to my motion to strike, they sent a brief stating that the affidavit was not evidence, but merely an attempt to establish a prima facie case and without it they would just have to prove their case in the usual way. During my hearing today the judge said that he liked where I was going when I told him that I wanted to strike the affidavit because they had no standing to sue, but that they were right about the affidavit not being evidence and that he would have granted my motion to dismiss if I had filed one instead of that motion. Now I'm wondering if it's too late to do that now that it's going to pre-trial. I was all prepared to request discovery knowing that they don't have squat from the original creditors when I 'discovered' that Michigan doesn't allow discovery in small claims until judgement or at the judge's discretion (I asked him about this in court and he basically said no, that comes later). I've done so much research, but now I'm not sure what to do next. Advice anyone? Thanks in Advance