MamaCaldo

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About MamaCaldo

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  1. NEED RECOMMENDATION~~~ Can anyone recommend an appeals lawyer in Michigan?? Preferrably ProBono.... PM please!! And yes I know about the Bar referral service... But considering the issues and what this is for, maybe someone knows of an appeals lawyer who has knowledge in CC cases... Will update when I can.....
  2. SingleDadJames, I am researching this topic. Are you around? I would like to fire up the discussion on this again.... So, the way Kay v Lesher reads is IF the attorney puts a dunning letter on their letterhead, and after the 30 day validation is up, does not sue (in what time frame???), that is the violation. If they do sue, there is no violation?
  3. Sorry to dredge up an old thread, but I JUST read this SC ruling and am trying to learn more about this. Question: Does anyone have any knowledge of any cases where this case has been cited re: "ignorance of the law is not an excuse"??? Especially in relation to debt collector suits????
  4. uuuhhhhh.... I think some more learned members will come and comment on this exact issue .... which I believe they will tell you is a HUGE problem... for the other side!
  5. A wee bit off topic..... How do you copy and paste off the MCR online book of civil procedures (or any other pdf. document for that matter)??? I'm getting very tired of hand typing everything!! EDITED TO ADD: Figured it out.... Never Mind.... nothing to see people... move on, move on...
  6. Basically MCL 600.2145 states that IF a creditor would like to sue you by claiming an account stated/open account, then they CAN attach an affidavit to the complaint. The affidavit has to signed and dated within the 10 days PRIOR to the suit being filed for it to be considered prima facie evidence. (ie: so if they filed the suit on Jan. 10th, the affidavit would need to be signed and dated on Jan. 1st to the 10th to be in line with this rule--just as an example... don't quote my exact counting of days....) IF the person they are suing does not file a counter affidavit to rebutt the affidavit they filed, their affidavit becomes prima facie evidence of the debt. (basically that means, right or wrong their affidavit will be admitted as 100% true and factual) The defendant's affidavit must be submitted WITH OR AFTER THE ANSWER filed with the court, within 10 days of filing the answer (meaning if you filed your answer on Jan. 1st, you now have 10 days (till Jan. 10th basically...) to get your counter affidavit signed, dated, and notarized. IF you file a counter affidavit, you basically have "dueling affidavits" or a "tie". That way the counter affidavit says "that's not correct! that's not true! This is what I say is true..." which makes the court try to figure out who is correct with their facts. There is caselaw to back up this rule and make sure to quote them when you are fighting this affidavit!!! (here's one... scroll down to Count VII. Account Stated elmotec statomat v. visteon corp - Google Scholar )
  7. Oh MIO DIOS!!! My head is spinning!! :speechless: Let me see if I can do any more damage...-- errr... help you out any.... I take it from your post count this is not your first time posting here.... so you should have done a link back to your original post so we could read about what you have done so far.... Now on to your confusion .... There are plenty of attorney's who are first used as a "collection agency" by the creditor. They are hoping that the alleged debtor will be scared into paying due to the fact that an attorney is the one contacting them about the debt. Pretty much anyone with an tiny bit of common sense will realize that when an attorney sends you a collection letter, there is a silent threat that they have the capability to sue you. Thus, you are more motivated to pay. Also due to them being a licensed attorney and having gone to law school, they should know the rules of law much better than a regular collection agency, thus are held to a higher standard when acting as a collection agency first. When you do not pay, they essentially "change roles" and become "the attorney of the plaintiff", thus are acting in the official role of an attorney who has filed a suit. When they were acting as a "collection agency" and broke some rules, the FDCPA would apply-- to the attorney, not the OC. Although, the OC did hire the attorney so you could include them in a separate suit that you could file against the attorney.... When they are acting as "attorney for the plaintiff", then you have to deal through the court when they break rules or don't follow procedure... Legaleagle even said the same thing: So, I'm not understanding what you are trying to explain. Are you trying to use the attorney's violations of FDCPA when they were first acting as a debt collector as affirmative defenses in the case they are acting as "attorney for the plaintiff" in now??? Again-- as legaleagle already said--- The attorney is NOT an employee!!! As to the affidavit being out of date and having errors, that does help you! Have you also filed a counter affidavit per MCL 600.2145?? OC is not a debt collector!! If they are the OC of the debt, they are not held to the same rules as collection agencies or JDBer's! If the OC was using their internal collection department, they WOULD be employees of the OC! But because they ARE employees of the OC, they would be immune from FDCPA. Since they gave it to the attorney to collect, the attorney IS subject to FDCPA when they were acting as a collection agency. When they filed the suit, they became "attorney of the plaintiff" which means now they have to play by the rules of the court--and so do you! BV80 also says same thing we are saying: If you can get the affidavit stricken at trial due to it being out of date, it won't have any evidentiary weight in the case. Again, you did not link this thread to your original thread with the details of what they are suing you, so we are playing "blind mans bluff" in the dark here.... Take to heart what legaleagle is saying here-- We are not saying you cannot win against an OC, but it is more difficult! As others have noted Discover is one tough cookie to go up against. But, you do have that out of date affidavit, and you might have more "material issues in dispute" that you realize. Just keep telling yourself, "it only takes ONE to get this MSJ denied!!" And this is what a lot of people wonder .... which I don't have a firm answer to.... but, just don't give up!! KEEP READING!!! This stuff is HARD to grasp!!!
  8. :LolPointUp: but I do not think that would help.... maybe it could help the other side though ... but I'm going to wait for the judge on that....
  9. ing this with a.... ti ha portato questa battaglia per me , ora vediamo come ti piace il culo consegnato a voi. Hai fatto casino con la mamma :rollingpin:sbagliata!
  10. Awwwwww.... you are so sweet! I'm so glad I could keep you smiling through your fight.... and I hope you reward yourself by taking your family out for a big italian dinner with some nice vino.... ahhhhh..... CONGRATS helpme!!
  11. Heeeeyyyyyyy now.... I'm under a lot of stress this week!! When I have a break in the action, I will send you my MamaCaldo's Meraviglioso Meatball recipe..... hrump.... uomo impaziente.....
  12. Keep your chin up Sleepless!!! We are all here rooting for you!!! And, their "offer" to settle seems a bit.... "hinkey".... I might bring it up in front of the judge about how the numbers don't match....