madbadger2742

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About madbadger2742

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  1. @shellieh98 After you suggested it, I started researching arb, and I came to the same conclusion. I had to answer before I had researched it enough to make that decision. Do I still have time to move it to arbitration?
  2. The summons is stamped with "GC" for general civil, so I'm guessing it's not small claims. I'm not sure how I feel about arbitration...
  3. Complaint: (& answer) Plaintiff, PRA, LLC, as assignee of USB NA("Plaintiff"), by & through attorneys... Jurisdiction: Plaintiff's attorneys are debt collectors attempting to collect... (ignorance) No other action (admit) Plaintiff based in VA (ignorance) Defendant lives where he does (admit) Amount in controversy is what it is ($500-1000) (ignorance) Count 1, Breach April, 2006 Defendant entered into contract with Plaintiff's assignor, USBNA under acct#... (ignorance) A copy is attached or Defendant is in possession (deny) Contract was valid, lawful, and enforceable. (ignorance) Plaintiff has fulfilled obligations (ignorance) Defendant has defaulted (deny) Plaintiff suffered damages resulting from default (deny) Wherefore, Plaintiff wants all the money! Count 2, Account Stated Parties have consented to Amount (deny) Defendant has received billings and made payments or failed to object. (deny) Defendant's payments and/or failure to object admits correctness of Amount (deny) Defendant has been given all set-offs, etc & owes Plaintiff Amount (see exhibits) (deny) Statement of Account and affidavit are attached & incorporated by reference. (admit exhibits are attached but deny that they represent my account) Wherefore, Court should give Plaintiff Defendant's money. Count 3, Unjust Enrichment Alternatively, Defendant has received benefit in amount of Amount (deny) Defendant unjustly enriched at expense of Plaintiff (deny) Defendant required to make restitution to Plaintiff (deny) Inequitable for Defendant to retain benefit (deny) Wherefore, Defendant owes Plaintiff Amount.
  4. 1. Plaintiff: Portfolio Recovery Associates 2. Lawyers: Weber & Olcese 3. Amount: <$1000 4. OC: US Bank NA 5-7. Service: Served, in person, legally and timely 8. Correspondence: Alleged notices sent to me, but no dialogue 9. Location: Macomb co, Michigan 10-11. SOL: Last payment alleged April, 2013; MI SOL 6 years 12. Status: Served, but nothing filed by me yet. 13. No disputes filed 14 No DVs 15 Today is day 16 of 21. (I know, I know...) 16. Attachments: a) Bill of Sale and Assignment of Assets, signed by two officers of OC b)Summary of account (computer printout), looks like it's from OC c) Copy of Account Statement from 7/2013, without agreement d) Affidavit from Plaintiff's "Custodian of Records", dated 14 days before complaint filed I have read @bmc100 's MI-specific posts, the "Getting Started" articles, etc, but I'm confused as how to proceed. Should I move to dismiss or for a more definite statement or should I answer? (I'm leaning toward answering) When do I attack that untimely affidavit of hearsay? Thanks in advance...
  5. Indeed. They could have avoided the case entirely had they sent me a collection letter before they filed. I've only got $23 invested in this case, so I'm not in dire need of reimbursement, but it'd be nice.
  6. I have no real knowledge regarding reimbursement. I'm just shooting for the moon. It looks like I would have to prove that the action was "Frivolous" to be awarded costs and fees, which I suppose I might be able to argue that: "The party had no reasonable basis to believe that the facts underlying that party's legal position were in fact true. [or] The party's legal position was devoid of arguable legal merit." (MCL 600.2591(3)(a)(i-ii)) since, shortly after initiating the action, Plaintiff became aware that its argument was without merit and had no reason to believe that its claims were true; and thus should have dismissed the case before I filed my motion. Kind of a stretch, really. But, hey, can't hurt to ask, can it?
  7. I have the offer of accord from the collection agent, and a transaction record naming the agent for the amount stated within the offer window. I think that's pretty airtight... And that's my biggest fear, really. If it's dismissed without prejudice, there's nothing stopping them from doing just that. Add to that the possibility that the debt was fractured, and that makes me really want that Finding in my pocket. Plus, I want my motion fee back! TBH, the only thing that is making me consider taking the offer is the possibility of pissing off the judge because I declined the offer and forced the issue. OTOH, I'd think he'd be more pissed at the JDB, since I emailed those same exhibits to counsel the day after I was served, and they never responded.
  8. BTW: In case anyone's interested, here's the MTD I filed: [Caption] DEFENDANT'S MOTION FOR SUMMARY DISPOSITION Defendant moves the Court to dismiss, with prejudice, all of Plaintiff’s claims under Michigan Court Rule 2.116©(7) by reason of payment and release. Defendant provides supporting documentation and arguments in the accompanying memorandum. XX/XX/XXXX Respectfully Submitted, ___________________________ [Me], Defendant [Caption] MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY DISPOSITION In this motion, Defendant asks the Court to dismiss, with prejudice, all of Plaintiff's claims pursuant to Michigan Court Rule 2.116©(7), wherein relief is deemed “appropriate because of release [or] payment”. UNDISPUTED FACTS AND NEW EVIDENCE For the purposes of this motion only, Defendant stipulates to the following facts as alleged in Plaintiff’s Complaint: That Defendant did (a) enter into an Agreement (“Account”) with [OC] under the account number specified, on the date alleged; and ( default on said contract by failing to make payments as agreed. In addition to the aforementioned facts, Defendant submits attached documents as Exhibits: Indications of Accord, “Exhibit C;” and Satisfaction, “Exhibit D.” BACKGROUND As accounted in the Complaint, and stipulated to in this motion, in [Year 0] Defendant entered into Agreement with [OC], and in [Year 1] breached the Contract thereof. As evinced by Exhibits, in March of [Year 3], Defendant was contacted by [Collection Agent] believed by Defendant in good faith to be either an Agent collecting on behalf of [OC], or the lawful Assignee to the Account. Accord was reached in the amount of $XXX.00 and subsequently Satisfied in full. In or around [Year 5], Defendant was contacted by another agent attempting to collect on Defendant’s [OC] Account. Defendant cannot at this time recall the name of said agent, but believes that it was not Plaintiff, [OC], [Collection Agent] nor any prior Assignees listed on the Complaint. Now comes Plaintiff, bringing the instant action claiming right to relief in an amount similar to that of the Accord. ARGUMENTS MCR 2.116©(7) allows for summary dismissal of claims when “appropriate because of release [or] payment;” and MCL 440.3311 states that a “claim is discharged” if “written communication contain a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.” Exhibit C satisfies this requirement. Furthermore, Defendant made the payment agreed upon with [Collection Agent], as evinced by Exhibit D. Therefore, Plaintiff’s claim has been paid and Defendant was entitled to a release. CONCLUSION Wherefore, Defendant respectfully requests that the Court grant this motion for summary disposition; dismiss all claims alleged against Defendant in Plaintiff's complaint; enter a finding of fact that [OC], through its agent [Agent], released Defendant from any prior or future claim pursuant to the original Account; and award such relief the Court deems just and reasonable, including costs and fees. XX/XX/XXXX Respectfully Submitted, ___________________________ [Me], Defendant
  9. Okay, so I filed my MTD two weeks ago, and in the mail yesterday, I got this letter: "Enclosed for your review is a copy of the proposed Stipulation and Order to Dismiss. If the Stipulation meets with your approval, please remit. In order to dismiss any upcoming hearings, we need to have this returned to our office ASAP. If you have access to a fax machine, please fax it to ... or if you have access to email, please email the document to ... Please also forward the original signed document by mail." Stipulation: "Plaintiff and Defendant do hereby stipulate and agree that the above-captioned matter may be dismissed without prejudice and without costs as to all parties and all matters. This resolves the last pending claim and closes the case." It seems to me that they understand how airtight my case is, and they want to avoid any more costs associated with being jackasses and suing me without researching their claims. Question: Should I accept, or let the Court schedule the hearing? I'm tempted to let it go to hearing, because a) I want it dismissed WITH prejudice, I requested a finding of fact from the Court stating that any claims to my account with OC are settled, and I'd like to have that, and c) I really wouldn't feel bad if they spent more good money after bad on this. Whatcha think, all?
  10. BTW, a funny aside (at least I found it funny.) I had to go to the court to fight a traffic ticket, (how can you cite a moving violation on a parked car?) and so I stopped by the civil division to see if there were any surprises in the docket, and the lady helping me at the clerk's desk tells me, "You really should answer the complaint, you know." "Court staff cannot and will not give you legal advice." lol
  11. You bet I read it. I read through it twice before I started this thread. His revised strategy is based on a complaint with no supporting documentation. My JDB seems to have cut-and-pasted the complaint, statement of account, and affidavit straight from MCL and MCR. They're trying really hard to present a watertight case. I'm going to go MTD, Answer with multiple affirmative defenses, Motion to Strike Plaintiff's Affidavit and statement of account, demand Production of proof of chain of Title, etc. But in the end, I'm really hoping that the indices of A&S are my ace in the hole. On that note, to prepare for denial of MTD, I'm currently researching how to depose out-of-state non-parties for documents, as the collector I settled with refuses to return my calls. Fun! (Hopefully, whichever office I need is in a state that honors UIDDA)
  12. Yeah, I still have the head cold, but I don't think that was a stuffy-headed mistake. Since 2.116 is titled "summary dispositions," I thought the motion should be titled as such. I'll change that. As I understand it, yes, you get ...14(?) days after the motion is denied to file your response. I was just wondering if I should attach an affidavit to the motion. Now I will. Thanks for the help. I'll polish it up.
  13. Another oddity of their case: JDB claim = OC account - A&S + $9.36. A&S was 4 years ago, so I don't think that extra $10 could be interest... Hm. Might this be a basis to demand production of the account history in full?
  14. Here's a draft of my MTD: DEFENDANT'S MOTION FOR SUMMARY DISPOSITION Defendant moves for the Court to dismiss, with prejudice, Plaintiff's claims, pursuant to MCR 2.116©(7) by reason of release and payment, providing arguments and supporting documentation in the accompanying memorandum. MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY DISPOSITION In this motion, Defendant petitions the Court for summary disposition, and dismissal, with prejudice, of Plaintiff's claims alleged against him, pursuant to Michigan Court Rule 2.116©(7), wherein relief is deemed “appropriate because of release [or] payment”. In March of 2010, Defendant reached Accord and Satisfaction with Alliance One Receivables Management (“Alliance One”,) an agent collecting on behalf of the original creditor, Bally Total Fitness (“Bally”.) While the value of the debt at that time was in the amount of $1XXX.XX, Accord was agreed upon in the amount of $[~half], as indicated in communication from Alliance One (attached as Exhibit C,) and Defendant did Satisfy said Accord, as witnessed via transaction history (attached as Exhibit D.) Defendant did reach said Accord and Satisfaction in good faith that Alliance One held valid title to the debt, and thus the authority to release him from any future claims against his account with Bally. Wherefore, Defendant respectfully requests the Court to grant this motion for summary disposition; dismiss, with prejudice, all claims alleged against him in Plaintiff's complaint; release him from any claim, past or future, pursuant to the original account; and award such relief the Court deems just and reasonable, including costs and fees. Thoughts, @Savoir , @bmc100 , anyone else?
  15. I know that in general, one is not required to give prior notice to a suit... I was just wondering if a debt collector needed to attempt to collect the debt outside of the legal system. The laws, and case law regarding Assignment of Account Stated confuse the heck out of me. So if assignor has valid claim to a stated account, assignment does not change the state of the Account. I somehow got the impression that in the absence of a contract stipulating rights of transfer and assignment, Statement of Account between debtor and assignee would need to be reestablished. That plays back to the previous question of whether they had to at least call me or send me a bill before suing me alleging Account Stated. So, just to re-re-re-clarify... If the complaint alleges that "Account has become Stated between the Parties," by "parties" they mean debtor and assignee, wherein assignee has assumed the role of the assignor? (Honestly, I'm a pretty smart guy and I usually understand legalese, but for some reason Account Stated crossed with assignment throws me for a loop. lol) Sorry, I meant dismissal, not judgement. Like so:"WHEREFORE, Defendant respectfully requests that this Court dismiss Plaintiff's Complaint with prejudice, yaddayaddayadda..." Would you recommending answering or moving to dismiss first?