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jenawade

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CIC Member (4/6)

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  1. Probably not, but it doesn't hurt to ask...is it a FDCPA violation for the CA to keep calling (about once a week) after they've initiated a lawsuit? Seems like harassment to keep calling someone to collect a debt while you're suing them.
  2. What is the difference in a Cardmember Agreement vs Credit Card Contract? We got a copy of the OC's generic credit card legal stuff with the summons and complaint. Is that then a Cardmember Agreement and not a Credit Card Contract? ----------------------------------------------------------------------------------------------------------------------------------- http://www.allbusiness.com/legal/trial-procedure-suits-claims/13801855-1.html "The appeals court said that Sec. 2-606 of the Code of Civil Procedure provides that if a claim is "founded upon a written instrument, a copy thereof, or of so much of the same is relevant, must be attached to the pleading as an exhibit or received therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her." "The court said a "statement of account" and a "cardmember agreement and disclosure statement" were attached to the complaint. "This document is not the written credit card contract between defendant and Household Bank," the appeals court said." ----------------------------------------------------------------------------------------------------------------------------------- http://coa.courts.mi.gov/rules/documents/1Chapter2CivilProcedure.pdf Rule 2.113(F) (1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is (a) a matter of public record in the county in which the action is commenced and its location in the record is stated in the pleading; ( in the possession of the adverse party and the pleading so states; © inaccessible to the pleader and the pleading so states, giving the reason; or (d) of a nature that attaching the instrument would be unnecessary or impractical and the pleading so states, giving the reason.
  3. The clerk told hubby he was a city court appointed attorney. Too bad he didn't offer to help with the motion for free!
  4. Hubby filed his papers with the court today for his answers to the Interrogatories. The court clerk looked them over then showed them to a man standing behind her a ways in the office space. He looked everything over and told hubby to file a Motion to Dismiss. So far I found out that refers to 'filing a demurrer' which in turn, in Michigan, is actually a 'motion for summary disposition.' I haven't yet found an example or blank form or 'how to' for that, so if anyone has anything it would be greatly appreciated. We go back to court 5/2 for the hearing.
  5. Its a burden alright, they're probably hoping we'll just go away. Just before this part was this: 1. Separately, for each of your answers to Requests for Admission 1 through 9 above where your answer is anything other than an unqualified admit, please: a. State each fact known to you upon which you rely to support your denial or qualified answer; b. If your response if that you do not have sufficient information or knowledge to admit or deny, then describe each effort you have made to acquire the information you feel would be necessary to admit or deny the request; c. Identify each document known to you which you believe contains information relevant to your answer; and d. Identify each witness known to you who may have knowledge with respect to the information upon which you rely for your denial or qualified answer and as to each witness, state the information you believe is known to them with respect to your answer.
  6. General objections? I guess not, don't know what that is. I have no clue what they mean by state the factual basis that supports your defense. Do I have to research each one to find their legal basis and put something like: As and for a First Defense Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. *Per FRCP Rule 12((6)
  7. How in the world do you answer this?: Interrogatories: 4. If you filed affirmative defenses to Plaintiff’s Complaint, separately for each defense, please: a. State the factual basis that supports your defense; ------------------------------------------------------------ AFFIRMATIVE DEFENSES As and for a First Defense Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. As and for a Second Defense Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages. As and for a Third Defense Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant. As and for a Fourth Defense Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. As and for an Fifth Defense Plaintiff’s Complaint fails to allege a valid assignment for this account and there are no averments as to the nature of the purported assignment or evidence of valuable consideration. As and for a Sixth Defense 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. As and for a Seventh Defense Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff for this account. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. As and for an Eight Defense The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. As and for a Ninth Defense Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits. As and for a Tenth Defense Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them. As and for a Eleventh Defense Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive. As and for a Twelve Defense Plaintiff's alleged damages are limited to real or actual damages only. As and for a Thirteenth Defense Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
  8. I entered some answers for the Admissions section based on searches here, but I'm struggling with these particular Interrogatories: Requests for Admissions 1. Please admit that you requested Plaintiff’s predecessor to open a credit card account in your name. Denied. To the best of the Defendant's memory, and without any proof provided, Defendant does not remember applying for nor using this card. 2. Please admit that Plaintiff’s predecessor opened a credit card account in your name. Defendant has already denied recollection of this card and therefore this question is improper. 3. Please admit that you made purchases and/or obtained cash advances by using your card, account number and/or any account access checks. Defendant has already denied recollection of this card and therefore this question is improper. 4. Please admit that you agreed to pay Plaintiff’s predecessor all amounts due resulting from the use of your credit card account including any finance charges and other charges due under the terms of the agreement. Defendant has already denied recollection of this card and therefore this question is improper. 5. Please admit that for each month you had a balance on your credit card account, you were sent, by mail or otherwise, a bill, statement of account, invoice or other request for payment showing all transactions billed to your account during the billing period. Denied. Defendant has no recollection of receiving any statements for this account, nor has proof of the delivery been provided. 6. Please admit that you never objected, in writing or otherwise, to any of the bills, statements of account or invoices you received. Defendant has already denied recollection of this card and therefore this question is improper. 7. Please admit that you made payments towards your account balance. Defendant has already denied recollection of this card and therefore this question is improper. 8. Please admit that there was an outstanding balance remaining on your account when you made your last payment. Defendant has already denied recollection of this card and therefore this question is improper. 9. Please admit that you owe Plaintiff the sum of $1,794.69 plus court costs and interest. Defendant has already denied recollection of this card and furthermore has not seen a contract spelling out any legal fees claimed by Interrogatories 1. Please identify the person(s) answering these Interrogatories. 2. Please identify each and every person that has assisted you in responding to these Interrogatories. 3. Separately, for each of your answers to Requests for Admission 1 through 9 above where your answer is anything other than an unqualified admit, please: a. State each fact known to you upon which you rely to support your denial or qualified answer; b. If your response if that you do not have sufficient information or knowledge to admit or deny, then describe each effort you have made to acquire the information you feel would be necessary to admit or deny the request; c. Identify each document known to you which you believe contains information relevant to your answer; and d. Identify each witness known to you who may have knowledge with respect to the information upon which you rely for your denial or qualified answer and as to each witness, state the information you believe is known to them with respect to your answer. 4. If you filed affirmative defenses to Plaintiff’s Complaint, separately for each defense, please: a. State the factual basis that supports your defense; b. Identify each document known to you which you believe contains information relevant to your defense; and c. Identify each witness known to you who may have knowledge with respect to the information upon which you rely for your defense and as to each witness, please state the information you believe is known to them with respect to your defense. 5. Have you ever requested Plaintiff’s predecessor to open a credit card account in your name? If so, please state the credit card account number(s). 6. Are you aware of any credit card accounts with Plaintiff’s predecessor opened in your name? If so, please state the credit card account number(s). 7. Have you ever made a purchase or obtained a cash advance by using a card, account number and/or account access check issued by Plaintiff’s predecessor? If so, please state the credit card account number(s) and the date(s) or the purchase or cash advance. 8. Has Plaintiff’s predecessor ever sent to you, by mail or otherwise, any bills, statements of account, invoices or other requests for payment? If so, identify each document and state whether you objected to it. If you have objected, identify each objection, including whether it was written or oral. 9. Have you ever objected, in writing or otherwise, to any bills, statements of accounts or invoices you were sent? 10. If you keep records or purchases or payments with respect to your credit card account with Plaintiff’s predecessor, do these records show a balance owing on the account? If so, what is the balance? 11. Is there any portion of Plaintiff’s claim that you admit you owe? If so, state the amount that you admit you owe to Plaintiff and any facts that support your claim that you do not owe the rest of Plaintiff’s claim. 12. If you claim that the account on which Plaintiff is suing is inaccurate, specify each inaccuracy and any facts that support your conclusion that the account is inaccurate. Requests for Production of Documents 1. All documents identified in your answers to the Interrogatories above. 2. All documents you relied on when filing you Answer, Affidavit and/or Affirmative Defenses to Plaintiff’s Complaint.
  9. We learned the hard way that the person going in front of the judge has to fully understand what's in anything submitted to the court. I'm the one that has spent all the time on this site and put all the documents together for hubby. Today was his pre-trial and the judge asked him to explain what all was in the motion to strike the affidavit. When hubby said he didn't know, his wife put it together for him, the judge said: then the motion is denied. In hindsight I should have sat him down and went over everything, but now, let anyone else in a similar situation learn from our mistake. Know your stuff before you appear in front of the judge! Now we start our discovery period. Oh joy. The lawyer gave hubby a statement today. Of course, its something anyone could have typed up on a computer and printed, but I think this is a sign that with 60 more days to dig up info, he may obtain an account history or something from the OC.
  10. How's this coming along for you? We have our pre-trial tomorrow.
  11. We used to have Hastings Mutual car insurance - they put right on their statements if you don't pay the owed amount by midnight of the due date to continue your coverage for the next month, they completely cancel your insurance on you at midnight. We found out we could go with Progressive for $1,000 less a year and signed up at the end of December 2007. I can't remember now, but it was something like on the day of or day before we would have made another payment to Hastings. Several weeks later, we get a bill from Hastings. Not an insurance bill, the amount was totally different (I can't remember the amount). Never thought to check before, but its on my husbands credit report for $175. Is that even legal? When we switched phone carriers at the end of a billing cycle our old phone company didn't send us a bill. We were using the service through a different provider and paying them. How can an insurance company?
  12. These are great, thanks! With ours, the affidavit is dated 9/1 and the complaint is dated 10/1 at the bottom, by the attorneys signature, and issued 10/19 by the court clerk. So that's nowhere near the 10 days. I have a question you can probably answer. We filed our answers and our sworn denial with the court on Friday, and only sent our answers to the plaintiff. Are we supposed to also send them our sworn denial?
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