MCS100

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About MCS100

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  1. Hi guys, due to a death in the family I ran out of time to amend my answer to include arbitration. I showed up to my pre trial hearing and this is what happened: Lawyer was definitely green, was so nervous in front of the judge and didnt seem to know what he was doing. judge ordered 60 days for discovery. lawyer asked, but I did not settle. The lawyer had computer print out, not from dell but from midland listing all transactions, payments etc...also had the same printout with field data at top that i originally received and the MCM letter and unreadable credit card agreement. I asked him where the bill of sale/assignment was and he said he didnt have it. I asked him if he had the bill of sale that specifically mentions my account and name, he said no, it is impossible to name specific accounts because they are bought in bulk from midland he said the letter with field data goes along with the bill of sale to prove that my account was in the sale. he had no statements or anything else. We left the conversation by him saying we will do discovery and will get you the information you are requesting. The lawyer asked the judge when his due date was to file for a motion of summary judgement and he told him october 1st. There is a bench trial ordered for November. so heres my question, need some help!!!!! Thanks for everybodys input so far! What do i do now? Do i send in discovery to the lawyer and court or should i wait to see what he sends me? What does the lawyer have to have along with the bill of sale to prove that my account was included in the sale? at a loss here.....if i do discovery is there a good example for michigan somewhere? oh btw the lawyer asked to settle for 80% of the debt or small montlhy payments for the full amount payable over three years, i said no.
  2. Questions: 1. I can file an amended answer even though my original complaint was filed on 7-13-15, it says 14 days from a pleading? 2, Since I need to get written permission from lawyer, do i mail or call them to do this? 3. If they refuse, an example of how to motion court to do this? I did read the thread, you were right it is long! was it in there somewhere? 4. You said to submit an affidavit with arbitration clause, affidavit of what? Does this go along with the amended answer or is it a seperate thing to do? shellieh98 said to amend answer and include legible copy of agreement with arbitration clause highlighted. 5. Confused on the defendants pre trial statement, am I just answering each statement? Guess i dont know where to start on this. Which is the most important thing to write first? i could kick myself, I should have just included arbitration in my first answer.
  3. Thanks brotherskeeper, I will read thread. I have such a headache!!!!
  4. What I found on MI civil procedure for amended answer: I filed my original answer on 7-13-15 Rule 2.118 Amended and Supplemental Pleadings (A) Amendments. (1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading if it does not require a responsive pleading. (2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires. (3) On a finding that inexcusable delay in requesting an amendment has caused or will cause the adverse party additional expense that would have been unnecessary had the request for amendment been filed earlier, the court may condition the order allowing amendment on the offending party's reimbursing the adverse party for the additional expense, including reasonable attorney fees. (4) Amendments must be filed in writing, dated, and numbered consecutively, and must comply with MCR 2.113. Unless otherwise indicated, an amended pleading supersedes the former pleading.
  5. Okay, thanks. Sorry i am full of questions--Just so I am clear See if the Mi rules allow me to amend without permission. If I don't need permission, I can use my original Answer and put Defendant first Amended answer instead of Answer. and just add arbitration to affirmative defense as first one. highlight and send a copy to court and blood sucking lawyer. Right? The copy they sent me originally is unreadable it is so small, I found one online for Dell. 2. do i need to still file a pretrial statement in addition the the amended answer, since they sent me one? 3. When I list the arbitrational agreement in my answer, what part do I list ? and do I have to state either JAMS or AAA? 4. Do I have to pay the filing fee up front to the court? I will copy/paste my amended answer to get feedback Thanks so much for your help, i really appreciate it! Arbitration. Except as expressly provided herein, any claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter-claims, cross-claims and third-party claims, arising from or relating to this Agreement or the relationships which result from this Agreement, including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement ("Claim") shall be decided, upon the election of you or us, by binding arbitration pursuant to this arbitration provision and the applicable rules and procedures of the arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the Claim is filed. The party initially requesting arbitration shall select either the American Arbitration Association ("AAA") or JAMS as the arbitration administrator. If the organization selected is unacceptable to you, you have the right to select the other organization listed within 30 days after you receive notice of an election to arbitrate. If a selected arbitration administrator does not agree to arbitrate a Claim, the remaining arbitration administrator shall be selected. Claims may be referred to an administrator other than the AAA or JAMS only upon the express written consent of all parties to the arbitration. We agree not to invoke our right to arbitrate any individual Claim you bring in small claims court or an equivalent court so long as the Claim is pending only in that court. It is the intent of the parties to require Claims to be submitted to arbitration on an individual basis only. Claims subject to this arbitration provision may not be joined or consolidated in arbitration with any Claim of any other person or be arbitrated on a class basis, in a representative capacity on behalf of the general public or on behalf of any other person, unless otherwise agreed to by the parties in writing. For the purposes of this arbitration provision, the terms "we" and "us" shall mean WebBank and Dell Financial Services, LLC, their parents, direct and indirect subsidiaries, affiliates, licensees, predecessors, successors, assigns and any purchaser of the Account or any receivables arising from the use of the Account, and each of their respective employees, directors and representatives. In addition, for the purposes of this arbitration provision, "we" and "us" shall mean any third party providing any products or services to you or us in connection with the Account (including but not limited to any credit bureau, debt collector or merchant, and including their parents, direct and indirect subsidiaries, affiliates, licensees, predecessors, successors and assigns, and each of their respective employees, directors and representatives) if such third party is a co-defendant with us in any Claims asserted by you or if any Claims asserted by you against such third party arise from or are related to the Account or any products or services provided to you or us in connection with the Account. For the purposes of this arbitration provision, the term "you" shall mean you and any person authorized by you to use the Account. The foregoing shall not limit any existing rights at law or equity of any other persons under this arbitration provision. Any arbitration pursuant to this provision may be resolved without a hearing, if permitted by the rules of the arbitration administrator. If a hearing is held, it shall take place within the federal judicial district in which you live or at such other reasonably convenient location as agreed by the parties. If you initiate arbitration, you must pay the lesser of one-half of any required arbitration fees or $125.00, unless the applicable rules and procedures of the arbitration administrator or this arbitration provision provides for a lesser amount, and we will pay the remaining amount of any fees, including any required deposit. You may seek a waiver of any required arbitration fees under the applicable rules of the arbitration administrator. If you seek, but do not qualify for such a waiver, upon written request we will advance 50% of any arbitration fees required to be paid by you and will consider an advance of the full amount of such fees. If we initiate or elect arbitration, we will pay the entire amount of the arbitration fees, including any required deposit. Notwithstanding any provision of this arbitration provision or the rules and procedures of the arbitration administrator, we will be responsible for payment and/or reimbursement of any arbitration fees to the extent that such fees exceed the amount of the filing fees you would have incurred if your Claim had been brought in the state or federal court nearest your billing address with jurisdiction over the Claim. Each party shall be initially responsible for payment of their own attorney fees, witness fees and similar expenses. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitation and shall honor all claims of privilege and confidentiality recognized at law. The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. At the conclusion of the arbitration, the arbitrator may allocate arbitration fees in accordance with applicable law, provided that such fees do not exceed the filing fees that would have been incurred if the Claim had been brought in a state or federal court with jurisdiction over the Claim. Where authorized by applicable law, the arbitrator's award may also include attorney fees, witness fees and similar expenses. At the request of any party, the arbitrator will provide a written explanation of the basis for the award and the disposition of each Claim, including written findings of fact and conclusions of law. Judgment upon the award may be entered in any court having jurisdiction. The non-prevailing party may appeal under the rules of the applicable arbitration administrator to a three-arbitrator panel. This arbitration provision shall survive termination of your Account as well as the repayment of all amounts you owe under the Agreement. This arbitration provision does not apply to any Claim as to which the provisions of this arbitration agreement forbidding arbitration on a consolidated, class-action or representative basis are not permitted by applicable law. If any portion of this arbitration provision is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration provision, provided, however, that if any provision of this arbitration agreement forbidding arbitration on a consolidated, class-action or representative basis is deemed invalid or unenforceable with respect to a Claim, then this arbitration provision shall, upon the election of either party, be invalidated and unenforceable in its entirety with respect to that Claim. In the event of a conflict or inconsistency between the rules and procedures of the arbitration administrator and this arbitration provision, this arbitration provision shall govern. YOU ACKNOWLEDGE THAT IF A CLAIM ARISES YOU MAY BE REQUIRED TO SETTLE THE CLAIM THROUGH ARBITRATION AND ARE GIVING UP YOUR RIGHTS TO LITIGATE THAT CLAIM IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. You may contact the arbitration administrators and obtain their arbitration rules or learn how to file a Claim with the AAA or JAMS as follows: • JAMS • 1920 Main Street, Suite 300 • Irvine, CA 92614 • (949) 224-1810 • www.jamsadr.com • American Arbitration Association • 1633 Broadway, 10th Floor • New York, NY 10019 • (800) 778-7879 • www.adr.org STATE SPECIFIC DISCLOSURES As required by Utah law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations. NOTICE FOR CALIFORNIA RESIDENTS: California law requires that we inform customers that should they fail to fulfill the terms of their credit obligation, a negative report reflecting on their credit record may be submitted to a credit reporting agency. If you are married, you may apply for a separate account in your own name. NOTICE FOR OHIO RESIDENTS: The Ohio laws against discrimination require that all creditors make credit equally available to all credit worthy customers, and that credit reporting agencies maintain separate credit histories on each individual upon request. The Ohio civil rights commission administers compliance with this law. NOTICE FOR MARRIED WISCONSIN RESIDENTS: No provision of a marital property agreement, a unilateral statement under Sec. 766.59 Wis. Stats., or a court decree under Sec. 766.70 adversely affects the interest of the creditor unless the creditor, prior to the time the credit is granted, is furnished a copy of the agreement, statement, or decree or has actual knowledge of the adverse provision when the obligation to the creditor is incurred.
  6. Its August 20th. How Do I go about filing an amended answer? Any examples? Do I still have to file a civil pre trial statement? in addition to the amended answer.
  7. Brotherskeeper thanks for replying, much appreciated. What did the pre-trial conference letter say? Does it include the judge's calendar orders with deadlines? I meant to say that after I filed my answer, I received a Notice to Appear for a pre-trial conference, just has the date (this month) and the time. About a week later I received the Plaintiffs Civil Pre-trial Statement. Above that I listed. Am I suppose to file a Defendants Pre-Trial Statement? I did read the MI Civil procedure, it might as well be written in Chinese because I dont understand it. I didn't do a motion to compel arbitration in my answer. Is it too late now? IANAL either, you seem to know way more than I do. I am sure I screwed up the answer too, since I don't know what the H I am doing. I can see why people give in so quickly, very confusing and way above my head, plus its not worth it to hire a lawyer for such a small amount, doesnt make sense to do so. With what they sent in the mail I posted today, does this mean they have all sufficient evidence? Thanks for your help!!!! Livingston County requires the pretrial statement to be filed 5 days before pretrial. I live in a small town and County, they do not have a pretrial statement, not much of anything on their website. The lawyer is from a "BIG CITY" about 2 hours from where I live. Heres my answer to the complaint STATE OF MICHIGAN IN THE XXX JUDICIAL DISTRICT COURT XXXX Defendant, acting pro se. vs. Case No. XXX Midland Funding LLC Original Creditor: WEBBANK Plaintiff, ______________________________/ XXXXX By: XXXXX Attorneys for Plaintiff XXXX XXXXX XXXXXX ______________________________/ There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the complaint. Defendant, appearing pro se, for its reply to the Complaint naming Midland Funding LLC., Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein. ANSWER 1. The Defendant denies this allegation in its entirety. The Plaintiff has failed to establish proof of ownership of the alleged account and has not provided proof of standing to sue. 2. The Defendant denies this allegation in its entirety. The Plaintiff is making an unsupported statement that a contract or agreement exists without providing proof of ownership or details regarding use of the alleged CREDIT CARD account. Furthermore, Defendant also states that he never had an account with Plaintiff nor is any alleged account with Plaintiff in default. 3. The Defendant denies this allegation in its entirety. Defendant has already stated that he never had an account with Plaintiff nor is any alleged account with Plaintiff in default. 4. The Defendant denies this allegation in its entirety. Plaintiff has not provided sufficient proof, by way of admissible documentation, that Defendant has a “sum due” to Plaintiff. 5. The Defendant denies this allegation in its entirety. Defendant has already denied that he owes the Plaintiff. Furthermore, Defendant states that he has never received a demand for the alleged amount due from Plaintiff. Defendant has already stated that he never had an account with the Plaintiff nor is any alleged account with Plaintiff in default. AFFIRMATIVE DEFENSES 1. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action. 2. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide. 3. Plaintiff has not proven that they are the real party in interest. Defense demands strict proof of ownership specifically that the alleged account was purchased. 4. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's complaint and each cause of action therein failed to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. 5. Midland Funding LLC., has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account. Defendant prays this Honorable Court dismiss this case with prejudice, along with any further relief the court deems just and proper. Further the defendant sayeth not. By the Defendant acting pro se, Dated: ____________ XXXXXXx _______________________________ XXXXXX
  8. Need some guidance here anyone! Read my original summons and complaint above. I opted to just answer denying everything and received a pre trial conference letter in the mail coming this month. Today I received a Plaintiffs Civil Pre-trial Statement from a different attorney than originally listed on the summons and complaint. Looks like has only been a lawyer since 2013. I am clueless, what is this? Do i Need to Respond? If so, how? Please bear with me I have never had this happen before and really nervous when I go to pre-trial. See below what the lettert says: Civil Pretiral Statement of Plaintiff Now comes Plaintiff, midland funding LLC, by and through its counsel, WWR, and for its Civil Pretrial Statement presents the following: 1.List briefly facts of the case: Defendant entered into a CC agreement with XXXXXX, Plaintiff Midlanf Funding is the assignee of XXXXX. Defendant defaulted under the terms of the Agreement by failing to make the required payments, damaging Plaintiff in the amount of XXXXX. 2. Pleadings are satisfactory 3. Plaintiff will stipulate that damages are XXXX at the time of Complaint. 4. List all special damages not stipulated. 5. Admissions or waivers: Resaonableness and casual connection of bills are not stipulated. 6. Plaintiff will call the following witnesses: see attached 7. Plaintiff will submit the following exhibits: See attached 8. Discovery is not complete. Deiscovery requested. 60 days 9. Plaintiff may file a Pre-Trial Motion 10. This is a non-jury case, which will take 2 hours to try. 11. Settlement is possible. Heres the second atached: Plaintiffs Exhibit & Witness Lists Now comes plaintiff, midland funding llc, by and through its counsel and for its exhibit list and witness list the following: Exibit List 1. Application 2,. Credit card agreement 3. credit card statements 4. payments 5. Bill of Sale 6. Chain of Title 7. Pre-legal notification 8. notice of new ownership and pre-legal review 9. affidavit 10. any exibits on defendants exhibits list 11. any exhibit necessay to rebut any evidence presented by defendant 12. plaintiff reserves the right to amend this exhibit list as additional exhibits become identified through the discovery process Witness List 1. custodian of records, Midland Funding llc 2. defendant, XXXX 3. any witness listed on defendants witness list 4. any witness necessary to rebut any eveidence presented by defendant 5. plaintiff reserves the right to amend this witness list as additional witnesses become identified through the discovery process. Any thoughts? The only evidence they provided in the original summons is listed above, the MCM pre-legal review, a CC agreement I can't read and the page with Field Data at the top listed above. Do I do anything or write anything at this point? PLEASE HELP!
  9. Deadline is in this month. I did mark on my calendar. I will read on the arbitration thread to get more info. I did find a dell preferred account credit card agreement online, that I can actually read. They only attached a portion of it, not the whole thing. I will also post my answers to start to the claims first and hopefully will get some feedback from more experienced posters than me. Again, thanks
  10. bassplyr I appreciate your input!!! The date of the last payment was a little over a year ago, I didn't want to be very specific, just in case. The amount that they are suing for is between $1000-$1500. Heres where I am stumped about affirmative defenses, Should I claim lacks legal standing and failed to state a claim? I just didn't know how to word everything without looking like a big dummy.I am also not sure how to respond to the complaints that I listed above, I know from reading BMC100 post how to deny etc....but I have to give a reason for each, again I am not sure how to word etc....
  11. Thank you for replying, it is much appreciated! I didn't have a magnifying glass so I took a picture with my phone and blew it up to read. It does have an arbitration notice, it says that any claim relating to your account may be resolved by binding individual arbitration, but the arbitration rules are simpler and more limited than rules applicable in the court, and arbitration decisions are subject to very limited review. Claims may be arbitrated only on an individual basis. If either party chooses to arbitrate a claim, neither party will have the right to litigate that claim in court or to have a jury trial on that claim or to participate in a class action or or representative action with respect to such claim. This is in bold at the top, What does that mean? I am clueless? There is also reference to JAMS and AAA on there On the amount they are suing for, it is the same amount listed on the document labeled Field Data, and the MCM letter that I referenced above. What does that mean? How do you think they will fight? Also, in the summons, the amount they are suing for is they same and it says plus cost.
  12. Hello Need some guidance on how to properly answer a summons and complaint we received in June, this is all new to me and have read through posts but really confused as to how answer complaint. Any help on how to answer, would be appreciated! 1. Who is the named plaintiff in the suit? Midland Funding LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Weltman, Weinberg & Reis 3. How much are you being sued for? XXXXXXX 4. Who is the original creditor? (if not the Plaintiff) Webbank 5. How do you know you are being sued? (You were served, right?) Served 6. How were you served? (Mail, In person, Notice on door) In Person 7. Was the service legal as required by your state? Yes, as far as know 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? XXXXX, Michigan 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) No idea 11. What is the SOL on the debt? To find out: 6 years as far as I know Statute of Limitations on Debts 12. What is the status of your case? Suit served? Motions filed? You can find this by a) 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). Called Court Clerk and said it was filed 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO 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? 21 Days/ No questionaaire just a summons and complaint 1.The plaintiff is the owner of within credit card acccount through purchase, bearing account number XXXXXXXXX. (It has the full account number) 2. By use of the account, the defendant became bound by the terms in the credit card agreement. The existence of this debt is established in the exhibit attached as Exhibit A. 3.The plaintiff has exercised its rights pursuant to the terms of said agreement to accelerate the time for payment of the entire balance due and owing by the defendant to plaintiff 4. Thata there is now due and oweing to plaintiff by defendant, the sum of XXXXXX on said credit card agreement. 5. Although demand has been made upon the defendant to liquidate the balance due and owing the defendant failed to do so. Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 1. There is a really small print terms and agreement attached, looks like it could be printed off the internet. 2. A single page that says Field Data at the top with an account number blacked out, name, partial SS#, address, old phone number, date of open, last payment, amount, last purchase date at the bottom it says Data printed by MCM from electronic records provided by Dell Financial Services pursuant to the Bill of Sale/Assignment of Accounts transferred on or about XXXXXX in connection with the sale of accounts from Dell to Midland Funding. 3. From MCM- pre-legal review- please call us. account transfer detail original creditor: Webbank/ Original Acct# blacked out/ Current balance/ Current owner: Midland Funding/Current servicer: MCM / MCM account# blacked out payment due says that on XXXXX your webbank account previuosly serviced by oo on behalf of Dell financial was sold to MIland Funding LLC which is now the sole owner of this debt.