SingleDadJames

Members
  • Content count

    473
  • Joined

  • Last visited

  • Days Won

    2

SingleDadJames last won the day on November 9

SingleDadJames had the most liked content!

Community Reputation

114 Excellent

1 Follower

About SingleDadJames

  • Rank
    SingleDad44

Profile Fields

  • Location
    Michigan

Recent Profile Visitors

The recent visitors block is disabled and is not being shown to other users.

  1. Well they are basically claiming NONE Of your defenses are valid. That doesn't mean it's true. The name of the game is for them to just claim none of your defenses are valid. Don't be fooled into thinking they've spent more than 10 or 15 minutes on this. THEY have the luxury of your inexperience. What they say doesn't even need to be true at this point. They are fully aware that the odds of you figuring out exactly how you need to respond and doing it in time aren't in your favor. With this being a junk debt buyer I'm sure you can a way to support at least ONE of those affirmative defenses. Remember you just need to find ONE valid defense that you can support with what you have up to this point. Lack of standing is probably a great start. If you can find two or three more valid defenses that you plead in your answer great! The more the better but you need to find at least ONE or the judge will grant their MSD. Nope. All they need to do is say they are filing for a motion for summary disposition under MCR 2.116 C (9) because you didn't plead a valid defense in your answer. They don't need to pick apart your defenses one by one because they are basically saying you don't have any valid defenses. They then leave it to you to show the Court how your Defenses are valid. If you have NO valid defense then there's no reason to have a trial and the judge should just rule in the plaintiff's favor now. Remember this is just them trying to take a shortcut via paperwork. They don't want to have to prove things at trial with real authenticated and admissible evidence. They don't want to have to bring in witnesses...they just want to type in your name in their Word Processor templates and let you hang yourself by not responding properly. This is just one more way they can do that...that's why they almost ALWAYS file a MSD after you've responded to Discovery and it becomes apparent you aren't going to run away i fear right away. Now you are on to a little something here. A MSD is basically a trial on paper before the trial happens. This rule is basically saying if it isn't going to be something that is admissible evidence in trial...you can't use it here. Meh....that mumbo jumbo doesn't apply here I don't think. That jargon is basically saying if one party needs an affidavit from another party to support their case and they can't get that affidavit they can whine to the court about it. For instance, say the Plaintiff needs info from a credit card company employee but they can't get in contact with them to obtain an affidavit. They can whine to the court and say they can't get the affidavit they need, why and ask for more time etc. Forget the whole signed contract deal unless they are claiming breach of contract in their complaint. It sounds like this is straight account stated. They don't need to produce a signed contract with your signature. For account stated all they need to do is prove you used the card, authorized use of the card, made a payment, failed to dispute statements etc. There are specific requirements MI Courts have laid out that are required to prove account stated. You need to look them up and know them.
  2. Great advice! Beating a JDB on your own CAN be done, but there is no easy cookie cutter approach. Unfortunately there is no cut and paste template that will work for everyone. Even if I was allowed by law to tell you exactly what to write and what to say, it still won't help if YOU don't understand it. For instance, when you file your opposition to their Motion for Summary Disposition, you'll need to have a legal brief supporting it. You'll also have to be prepared to orally argue your brief with the plaintiff in front of the judge. (SOMETIMES you have the option of waiving an oral hearing and just have the judge rule based on the paperwork without oral argument...but I believe the opposing attorney has to agree to it). I'm not trying to scare you, just trying to point out the fact that you need to know your material and anything you've filed inside and out. If YOU don't understand it the Court will know you've copied material off the internet or someone else is helping you. Regarding the legal brief; It's all more scary than it sounds. It's basically just a summary outlining caselaw, cases, laws and court rules that supports everything you are saying in your opposition to their motion. If you are diligently researching and understanding the material, its basically a summary of all the great research you've found. It's really nothing more than a handy little outline for you and the court to refer to. I know it's all overwhelming, but it can be done. Unfortunately it is NOT easy and most people honestly don't have the time or level of commitment needed to do it. You have to be prepared to spend a great, great deal of time researching. If you are determined, have the luxury of being able to spend DOZENS of hours researching, asking questions here, and preparing yourself then you may just come out on top.
  3. Looks like they've been burned by people on the whole 10 days deal to actually start making up,I mean obtaining, timely sworn affidavits of debt now. Regarding who their affiant is...it doesn't really matter for the purposes of MCL 600.2145. You can certainly attack their affiant at trial etc, but the statute doesn't really say who the affidavit has to be from. I know it sucks. They can basically use their own in house affidavit factories to get a b.s. affidavit on the books. Depending on what your counter affidavit said it probably helps. I would certainly be using that to point out I'm contesting specifics and that there are , indeed, issues of material fact that need the Court's attention in trial.
  4. Yeah I missed that. It's not a Motion to Dismiss. It's sort of the same thing but they are saying they want the judge to rule in their favor right now, without even going to trial. Basically they are saying there is no reason for you to go to trial. It's your job to show the judge why you should have a trial. Unfortunately none of us can write it for you. You can learn so much by reading a bunch of responses in opposition to motions for summary disposition! You NEED to oppose this by filing your response in opposition, doing it in the correct format and in the time allowed. This is where they'll definitely resort to trying to beat you on a technicality. Be sure to read the rules of civil procedure about how you need to respond and what you need to file!
  5. Also, if it were me I would look into and read MCL 600.2145 Michigan Legislature - Section 600.2145 I'd make sure I realized their case is based on the fragile little glass house that is account stated. I would prepare myself NOW to blow that argument out of the water if we got to trial. I'd definitely spend some time researching what conditions are necessary for the plaintiff to claim an account stated exists. There is plenty of info on this out there if you are committed to finding it. I'd also take a look at the affidavit they submitted with their complaint. Under the sufficiency requirements of MCL 600.2145 for an account stated claim I would be very curious to know whether their affidavit of debt was dated 10 days or less BEFORE the complaint was filed. I have not had time to read your thread in depth, but I do know these affidavits are almost always notarized and signed MONTHS before the complaint is filed. I believe when I was skimming the thread that I caught something about them saying you FAILED to file the counter affidavit/affidavit of denial to deny their affidavit as required by MCL 600.2145. If that's true it was a mistake on your part. It's one many in pro pers make. If I failed to file the counter affidavit but noticed their affidavit was dated more than 10 days prior to filing of the original complaint I might smile a little. One has to wonder whether someone would be required to file an affidavit to deny an affidavit that was insufficient as a matter of law to begin with. In other words if they sent me an affidavit dated months before the filing of the complaint, it doesn't even meet the requirements of MCL section 600.2145 to begin with. Therefore why would I even need to respond to it with an affidavit in denial? They never created the requirement for me to do it to begin with. Furthermore they can't really rely on that to prove account stated under MCL 600.2145. They are then left to prove account stated in other ways like showing you used the card, made payments, failed to object to statements received etc etc. Realize MCL 600.2145 is a clever little shortcut for courts and junk debt buying scum. The law is no doubt meant to be a beneficial way to help clear court dockets and keep things moving quickly. It lets those who don't have a leg to stand on get booted quickly with a Motion for Summary Disposition. It's also a tool that is easily abused by junk debt buyers and scumbag attorneys who know 90% of the population doesn't understand any of this! Just sayin....
  6. So someone brought me out of retirement....::SIGH:: I really really tend to be obsessive over these. I had to stop reading the board for awhile. I get too wrapped up in it EVERY darn time So...WITHOUT giving you any specific legal advice, here is my opinion as an unedumuhicated outsider. First let me say I've only skimmed your thread..but it looks like this case is following the standard cookie cutter flow. First serve you a b.s. affidavit, with complaint, then produce some "statements", then serve Discovery. They fully expect you to: 1. Give up and admit to everything they claim 2. Settle and pay a large percentage or 3. Eagerly hand them all the documentation they need to prove their case. When you won't do that the next step is almost ALWAYS a Motion for summary disposition. It's scary but I can assure you it's the norm. They are doing everything they can to shut you down BEFORE they have to go to trial. Most likely because if you play your cards right, they can't prove $hit with any REAL authenticated and admissible evidence at trial. Obviously you the dire situation right now is the Motion for Summary Disposition. That's what you need to focus on right now. You have a specific way you need to reply and a specific time you need to do it in. The first step is looking up in the rules of procedure how much time you have. Here's how I see things: The whole basis for their MSD is they are claiming: 1. You failed to state a valid defense to the complaint. (MCR 2.116©(9)) and 2. Except to the amount of damages, there really is no real genuine issue of material fact. MCR 2.116 ©(10) Basically you need to prove two things: 1. That you DID state a valid defense. If you plead a real affirmative Defense in your Answer you could simply point that out. 2. That there is a genuine issue of material fact. In other words that there are more facts in dispute other than the amount you owe. Your main objective is to pick apart the 2 reasons they are claiming the judge should just hand them the case. Here's what I did and what I would do if I were you now. 1. Look up and review the MCR 2.116 section. Know what you need to do and how long you have to do it. 2. Look up Motions for Summary Disposition and responses to them in MI appellate courts. It takes a day or two to find and read them..but its SO valuable. 3. Find out what MI courts consider a valid defense. Generally if you can prove you plead an affirmative defense that is valid and that you can support with argument, you will be ok. If you can prove one valid defense, prove 2, 3 or 4 if you pled them. If you didn't plead any..I believe you can request to ammend your answer...but don't quote me on that. 4. Research and find out what a "Genuine issue of material fact is". Then look at past MI cases and see what MI courts consider a genuine issue of material fact. You'd be surprised what little issue can keep you alive. Of course the more issues of material fact you can present the better. Does the plaintiff really own the debt and have standing to sue? Have you contested the debt? Have you ever requested validation of debt etc etc. Have you brought into question the validity and accuracy of their "statements"? Have you questioned the authority/existence of their affiant? You get the picture. 5. Research MSD's involving the specific rules MCR 2.116 © (9) and (10). This basically tells you EXACTLY what you need to do. 6. Remember this step is 90% intimidation. If you eff it up, it's a win for them. If they scare you off...it's a win. They have little to lose except a $20.00 filing fee. Jamming your information into a word processor template is something their assistant does in 5 minutes. They aren't going to spend any more time on it. YOU will have to be committed to spending hours of research, but once you start seeing the pattern in other cases it can be done.
  7. Yes a BOP is definitely one of the first steps for many CA cases. CaLawyer and many other posters on here have covered it in depth. I'd suggest searching for past posts on the topic. You'll likely get many of the procedural questions answered. The best I can determine we don't get to use bop here in MI.
  8. Exactly what I was going to point out. You simply asked them to admit there is no written agreement between Portfolio and the defendant. They admitted because there isn't one. There would possibly be a written agreement (the cc terms) between you and capital one but not portfolio. If they can properly show chain of custody then they stand in the shoes of the OC and they basically inherited all of the rights of crapital one in the written agreement when the account was sold/assigned to them. That's basically what they say when the issue is raised in court too. Of course they have to be able to proof chain of custody and ownership with adequate documentation.
  9. I think a MSJ might be a little premature. Some of your arguments are certainly valid I'm just not so sure a MSJ is going to be the way to go yet. When is trial scheduled for? I guess my concern is it takes a GREAT deal of time and research to pull off a MSJ correctly. It can be done by a pro se but it is NOT an easy endeavor. I suspect the plaintiff will spring one on you before you ever get time to fully prepare yours or hit trial anyway. You also need to be careful with a MSJ. I don't know about your state, but here in MI the rules of civil procedure allow the Court to issue a summary judgment for either party when considering a Motion for summary judgment. In other words here in MI if I were to file a Motion for summary disposition on the Plaintiff, if when considering the motion the Court decides that the Plaintiff is entitled for summary judgment instead of me they can go ahead and rule in favor of the plaintiff. Something to look into and consider before jumping the gun. Does the law actually say you are entitled to RPOD? I think I might focus on trying to get my discovery requests answered fully if I am entitled to them. If you are only entitled to interrogatories have you sent them and gotten a response back?
  10. Yeah unfortunately I think you've done the best you can do. Unless you sent things certified mail online you really can't proof what was in the envelope. You might be able to write up a sworn statement/affidavit that further drives home the point you SWEAR you sent a cease and desist letter but I think that is as good as you can do. Do you have anyone who witnessed you put the CC letters in the envelope and seal them? That might help even more. I've been taking photos/video of CMRRR I send out in an effort to help fight these idiots saying "we never got it". I think you are shifting the burden back to them to prove what they received all three times wasn't a CC letter....but that's just my lay opinion. If that's true then wouldn't the court would have to presume what you are saying to be true? You have the green cards, you have copies of the letters, you have your testimony. How are they going to prove you DIDN'T send a CC letter all three times if they have absolutely nothing to show. I think any judge is going to have a hard time believing they lost 3 different mailings.
  11. Well thanks for the compliment. I've been so busy I haven't had time to be as active on the site as I would like. I got called back to help out and I remembered why I took a break. Aside from family health issues I'm realizing I sometimes get a little TOO obsessed with helping out and before I know it 3 hours of the night are gone while I was reading and posting here! I only wish I could afford law school. It really is something I enjoy learning about. I'm FAR from a "resident expert on MI law" but I did learn quite a bit trying to tread water while keeping the sharks at bay. The fact that most of these creditor attorneys aren't used to putting much time and effort into anything beyond plugging info into a word processor template helps out. I'm sure I'm not match for a determined and wise attorney, but I'm now not so afraid to give the typical lazy suit chasing the default express a run for his money! I have to agree with the statements about CaLawyer. I only wish we could find just ONE attorney like him from every state. The site would be unstoppable!
  12. Don't sweat sending the requests for admissions. I JUST caught that and was hoping it wasn't too late. They'll either ignore them or object. Worst case scenario they object to everything you sent because you didn't follow the court's local specific pre-trial rules. You then just take them out and resend. I suspect they'll just not answer the requests for admission b/c they don't have to. You'd never get anything useful anyway as no matter what they'll typically be evasive and respond with BS anyway! Regarding your affirmative defenses you CAN ammend your answer. I never ended up making changes to my answer but I do recall the rules pertaining to ammending a pleading are found in: MCR 2.118 Amended and Supplemental Pleadings Basically you have to ask the court for permission to do so via a motion. It's more work than it would have been to just properly do things in your original answer but you can still make changes. Since it seems like you didn't include any defenses it might be a good idea to consider. Some courts are more lenient with pro-se litigant's but when it comes down to it the plaintiff will exploit your lack of defenses at some point.
  13. One more bit of advice. I'm pretty sure the SOL on a charged off CC account will be held to be 6 years in MI. SOL is procedural in MI and the court typically rules that whatever the choice of law provision in the cc agreement says about SOL doesn't override MI's SOL. If you can find case law showing the court has upheld the SOL in the cc agreement by all means use the argument, but my research shows the MI SOL of 6 years typically wins out. Here is a handy little reference that covers the issue. I believe the main info pertaining to the topic is found on pg. 9 of the PDF. I'd print and read the whole thing though as it provides a quick summary and MI case law of many hot debt collection case topics! I can't tell you where I obtained it from, but it's a sheet used by the Dark Side of the force so it gives you an idea of some arguments they make and how they can/can't support them: 10-MI-Debt-Collection-Issues.zip
  14. From what I gathered from skimming the thread you failed to file your counter affidavit required for an account stated under MCL 600.2145. That's a mistake but it doesn't have to be a game ender. The fact that you didn't file the counter affidavit really only comes into play if the plaintiff raises the issue. I suspect they'll never bring it up. If it were me and they DID raise that issue of my failure to file a counter affidavit then I might question whether or not I was ever technically required to do so in the first place. My personal non-attorney lay person opinion is that since their affidavit was dated well before the 10 days referred to in MCL 600.2145 they submitted an affidavit that was insufficient as a matter of law. Since their own affidavit didn't follow the statute it never created the burden of you submitting a counter affidavit in the first place. At least that's what I'd say should they be foolish enough to raise the issue. Odds are they know darn well their boilerplate stale affidavit isn't compliant with MCL 600.2145 and that's why they'll never push the issue. The statute is just a way for them to slide cases through the system for stupid,scared,or lazy defendant's who won't bother to show up or mount a defense. The "business records" they are referring to in the BS affidavit is likely text and numbers on a computer screen. In my case the JDB provided absolutely nothing with the complaint except the affidavit. When you really push them in Discovery they'll provide some more in house BS. When they get really pressed they'll probably pay for copies of past statements. If that's all being provided by a JDB and not being authenticated it's pretty useless at trial if you properly argue and object to things. Have you looked into adding Affirmative Defenses to your answer. Right now that will be their way out. I believe they can seek to have the case dismissed or motion for summary disposition based on the fact that you don't have any affirmative defenses. I'd prepare to ammend my answer and add AD's and/or learn how to respond to a Motion for Summary Disposition. If they decide to continue pursuing you the MSD is almost guaranteed before they ever go to trial. That's my uneducated opinion.
  15. I'm not sure here as I've only had time to skim the thread and haven't read it in great detail. At the beginning of the thread you posted the pre-trial order which basically says that if either party is unrepresented requests for admission are not allowed. If that is the case you shouldn't be sending any requests for admission. They'll either be ignored or objected to since the court said they aren't allowed since you are not represented by an attorney. I'm pretty sure that means either party can not specifically title a REQUEST FOR ADMISSIONS section and ask specific admissions to be admitted or denied. That doesn't mean cleverly crafted interrogatories can't be used to accomplish the same thing.