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Everything posted by SingleDadJames

  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. R
  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 an
  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 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 con
  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
  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 requiremen
  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
  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
  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 ju
  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 burde
  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 mos
  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
  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 t
  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 aff
  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
  16. I don't give great advice...I give great OPINION And sheesh...hijack threads much Linda? Heh heh! JUssst kidding. Case law is a PITA to find in MI. GOOGLE scholar and some time can turn up some stuff from the supreme court and appeals courts but other than that it's difficult going. MI truly makes it hard. In my county and district I can't even check the docket or filings online. I have to call or go to the court house for everything. Regarding the bill of sale not mentiong the specific account, UNIFUND v. Riley jumps into my mind right off the bat. I think that was an unpublished case but It
  17. Yeah I've fought a little with JDB's and judging by the mailbox and caller ID I may be back on the front lines really soon. Are you referring to the "I'm not a lawyer" signature at the bottom of my posts?That's a custom signature you can create. When you are logged in look at the blue menu bar near the top of the page. You'll see "User CP". Click that to go to the user control panel. On the left hand side you'll see "Settings and Options" and then the option to "edit signature". Click on that, enter your signature you'd like to appear at the bottom of posts and click save.
  18. I know it was a long response from me, but I've been there before and thought maybe you needed a pep talk. I know how valuable it is to have someone on the same team give you a little reassurance and feedback from the outside. Just coming here and sharing experiences and the ups and lows was extremely valuable for me...let alone the technical advice. Relax...take a deep breath and then put all your energy into fighting tooth and nail if you believe in the chance of winning. I personally wouldn't back down to anything other than an OC! Once you sit back and look at the worst case scenario if yo
  19. The brief in support of your motions is time consuming but really not all that difficult when you find examples. You basically need to cite MI specific court rules and Caselaw that proves to the court you are entitled to what your are asking for. Basically you need to find court rules that says you can have what you are asking for and then find past MI cases where the court has granted what you are asking and you are golden. Researching other MI motions online will give you a good idea of what you need to do and how things need to look. Do NOT rely on a boilerplate template with no brief as so
  20. Yes I forgot to mention you can combine motions and file several at the same time and pay one filing fee. Great point! Also if you are on public assistance or indigent you can also file the affidavit I mentioned earlier to stay/suspend filing fees.
  21. It sounds to me like you responded to the first letter with a letter that basically amounted to written admission of owning the debt and an attempt to setup payment arrangements? I'm guessing that's why the attorney you contacted wasn't interested in representing you. If you're unemployed, admitted to the debt and have no counterclaims they just view it as no chance in heck of making any money off of you if they represent you. As for setting up payment arrangements it's very feasible that the court and plaintiff would agree to it if you walk into court admitting the debt. I have zero experien
  22. Just a thought...but I woudn't have bothered with this. We all know the judge is going to allow it. Best case scenario the judge says ok and simply reschedules the pre-trial. It really accomplishes nothing but buying a little time and possibly making the judge view you as a problem. Secondly, I'm not so sure the COURT has to give you 7 days advance notice to put you on a conference call in a pre-trial if the court is doing it on their own initiative. The way I read the rule if the JUDGE decided it was going to be a pre-trial via conference call the court doesn't have to do much other than i
  23. I apologize for the delay in getting back to you but I've been off the site for awhile and busy dealing with health problems with my mom etc. I'm just a little rusty here but I hope I can help by outlining MY personal experiences. I believe the specific timeline for when motions must be in and similar deadlines for pre-trial activities are often set by the specific judge. I know for a fact many judges hold an initial case management/pre-trial conference where the judge will lay out the specific deadline for when Discovery must be completed, when motions must be scheduled etc. There are often s
  24. No big deal. It's easy to get overwhelmed, overthink, or overlook the obvious when you get wrapped up in this drama. Sometimes it just takes an outsider's point of view to make you see the forest for the trees. A credit report should show you all of that and sometimes more. You can pull a free report from each of the three major cra's once a year at annualcreditreport dot com.
  25. The SOL is generally based on the date of last activity. Check your state laws and or case law to be sure. Date of last activity and default date are not the same thing. Date of default would be when the cc holder started to "miss" payments. You can make a payment on a defaulted account. The payment date would be the date of last activity. Regarding calling anonymously from a pay phone, you really can't call annonymously because you'll need to provide identifying information for them to tell you anything. You would need to provide the account # and/or social security number etc for them to be