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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. 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 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 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'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:
  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.
  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's better than nothing. I've attached that with parts I liked highlighted. I think I may have some more to help but I won't be able to dig further until later this evening/tonight. Unifund.v.RileyHIGHILIGHTED -
  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 you mess up and lose it can put things in perspective. I had personally decided that the worst case scenario was I lost and was ordered to pay. I could then appeal, setup payment arrangements or simply file BK. I had made the personal decision I would save my change to file BK before I would EVER pay the scumbag JDB, but that's just me. Try not to let the Court or the attorney intimidate you. Believe me I can honestly say that was like 90% of the process in my case. If they are going to beat you make them work! Good luck!!!!!
  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 many people try to do. You can't just cut and paste this stuff because it is almost always shot down when you do. You are absolutely correct that typing of the motion is the absolute best preparation to argue things orally. If you do the research and understand what you wrote, you'll be prepared to argue it orally. I had made up sheets/index cards with the main bullet points and I had a copy of the motion with key parts highlighted if I panicked during the motion hearing. Luckily for me I never really had to do much oral argument. Either my pleadings spoke well enough on their own, or I could simply let the plaintiff's attorney hang themselves.
  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 experience with Virginia but I saw quite a few cases while defending myself in MI where the defendant walked in, admitted to the debt, and was able to set up payment arrangements.
  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 inform you of that before starting. If the plaintiff was requesting it then it should have been done in writing with 7 days notice unless they came up with a lame flat tire lie (I mean excuse) etc. The bottom line is pick your battles. While I admire you for knowing your rules and having the courage to speak up you also need to know what's worth fighting for. That blows doesn't it? They always seem to get more time with little explanation. It definitely seems to be the standard way things are done. They'll buy time until they get around to buying/paying to manufacture the documentation they need. If they drag their heels long enough rest assured the judge will eventually get tired of it. Don't let that scare you. The truth of the matter is if it goes to trial with a fair and impartial judge that "technicality" will matter. The affidavit is insufficient as a matter of law for being considered as prima facie evidence of your indebtedness. If you properly argue that and oppose the affidavit they'll need to provide other authenticated evidence to prove their case. The judge honestly probably doesn't even know what rule you are talking about. Since you started off by quoting small technical rules he probably decided to let most other court rule and case law you mention go in one ear and out the other. Save it and remember it for trial. It will be useful then. HA! I liked this part. Way to stand up for yourself! It's also a nice way of letting everyone know you aren't a pushover! Just a thought though: If you demand/request a jury trial the right way I THINK it has to be done within 28 days of filing your answer. You also need to eventually pay the jury fee. At least he's honest! He probably won't read much of anything until right before trial. That's why you'll see the plaintiff's attorney typically bring the judge up to speed whenever they appear before him. They know most of the time the judge hasn't had time to read things in detail. You'll be amazed how often the plaintiff's attorney themselves is clueless as to the details of the case as well. At least that's my experience. Welcome to the world of pre-trials in MI! After you go through about 2 or three more of these you really start to get ticked off. Worrying the night before, preparing yourself, taking time off to drive to the court house, paying for parking, waiting forever...all for nothing. Or the plaintiff's attorney shows up totally unprepared and simply whines about needing MORE time. When it comes down to it you'd be surprised how many times they have to reach for their copy of the rules and look for the one you are talking about. In my case it wasn't unusual for the judge to look up the rule and refresh his knowledge. That sounds familiar! It must mean you are doing your job. If you are doing your homework and filing legitimately researched and sound responses,motions and pleadings it means you are making everyone earn their pay. Just make sure you aren't bombarding the court with frivolous motions or you'll find yourself in hot water. It sounds to me like you are on the right track. Right now they probably don't have much of any documentation. They'll stall until they can order what they need and then you just see what they produce and methodically pick away at it. In my case they were too lazy/incompetent to do much of anything except mail me alleged copies of cc statements. Missing huge gaps etc. The best I can ascertain at this stage in the game the judge really isn't too interested in the evidence etc. At this point their job is to make sure they are encouraging settlement if that's an option and making sure things are moving to trial in an organized and timely fashion. If there are issues concerning outstanding Discovery they'll try to iron out the details, but other than that they don't worry about proof at this point. Any major issues will be dealt with via motions, but the details of what the plaintiff can and can't prove ultimately won't get much attention from the judge until trial. The judge may not be "assuming" the plaintiff has the right to collect. Unless you bring it up in a motion to dismiss, their job is to deal with the issue when raised at trial.I've been away from the board for awhile, so I'm not fully informed on the details of your case but it sounds like you are doing a good job so far. Showing up, staying calm, and speaking up for yourself are almost just as hard as the legalease part! Remember intimidation is a large part of this game. It's the Plaintiff's attorney's job to scare you into throwing in the towel. Don't think for one second the local court wants to be bothered with this BS any more than you do. Remember the Court's job is also partly to encourage resolution outside of court if at all possible. If that means a judge intimidating a lowly pro se into turning tail and running then so be it. If they can scare you off in the beginning I'm sure many judges will be fine with clearing a hole in the docket for more pressing issues. If you stay brave and do your homework eventually the judge will listen. As for what to do next, I would use every minute I had to start researching case law and how to format my case to knock the legs out of every one of their arguments. I'd also start familiarizing myself with how to properly respond and object to a Motion for Summary Disposition. If you are doing your job correctly that will most certainly come before you ever see trial. Good luck!
  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 specific rules for each local court and then specific rules for judges within the court itself. I could be wrong but the 21 or 9 days you are referring to might have more to do with a deadline for when a motion must be filed and served prior to a hearing on the motion...and not specifically a deadline prior to trial. If you could point out the rules you were reading and confused on we would be much better equipped to help out. I've heard of some judges allowing motions right up to the day before trial...but it's probably not a wise idea for a pro se to attempt it. If you are worried about a motion to strike I would suggest preparing to argue it orally at trial. If you have time to go through the entire written motion filing and hearing process then by all means try it, but I'd still prepare for the fact that you'll need to resort to raise your motion orally at trial. Either way I'd still type everything up just like a written motion with supporting brief. Then you are definitely armed for battle. If you get nervous and panic at trial you can always resort to reading info straight from the hard copy. The judge in my case wouldn't hear any motion to strike until the actual document had actually been admitted into evidence. That was more his/her personal preference I suppose...but I spent a lot of time worrying about motion practice etc and the judge wouldn't even consider the motion pre-trial. Generally speaking, every contested motion will have a motion hearing. I've heard some courts allow you to simply request the judge rule on the motion by you voluntarily waiving the right to a hearing. I couldn't find any rules on it and I actually wanted to make my opposition physically appear and deal with arguments orally. Generally when you file a motion YOU are responsible for also setting the motion hearing for it. Don't assume the court will do it, because they won't. They will simply happily collect your motion filing fee and the final copy of all your hard work and sit on the motion until you schedule the hearing. At least that was what I experienced Regarding motion filing timelines read MCR 2.119© 1-4. That's where one will find the outline for what you need to know for motion filing timelines. These timeframes simply relate to how soon prior to a scheduled hearing on a motion you must file and serve a motion. This is to prevent you from scheduling a hearing and then waiting until you walk into court for the hearing to serve it on the other party. The rules mainly prevent the other side from going into the hearing with no knowledge of the motion. Here is my quick take on the motion process: - It costs $20.00 (or at least did) - There is an affidavit you can file with the court to delay your payment of the $20.00 motion fee or waive it all together. - You need to follow all the rules outline in MCR 2.119 regarding motion format and practice. For instance you need to have the written motion AND a supporting legal brief that is no more than 20 pages in length double spaced. If I were filing a written motion I would get everything typed up and ready to go. I'd drive to the courthouse if it was close enough and file my motion and get a motion hearing date set. You then need to serve the notice of hearing AND the motion and supporting brief on the plaintiff. If you are doing this via the mail it all must be sent out in the mail NO later than 9 days before the motion hearing date. . I don't give them one extra day to read and respond. They'll simply use their canned word processor responses anyway but don't give them any extra time. In MI service via mail is considered complete on the date you drop it in the mail box at the post office. You must file the motion and supporting brief with the court no later than 7 days before the hearing. However if you file the motion and schedule a hearing date on the same day like I suggested that's obviously not even a problem. That's my $.02 on motions in District Civil Court in MI. I hope some of that helped. If you get hung up on deciphering rules post and we'll do our best to provide our opinion.
  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 sure they are speaking with the account holder or some other authorized individual. If you did just call and inquire about the account it would not create a date of new activity nor would it legally reset the SOL. The date of last activity is mainly a concept based on credit transactions and payments. In other words if you charge something on a cc, make a payment on the debt, or make some sort of agreement to pay that would create a new date of last activity and could reset the SOL.