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About MIFighter

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  1. Also, one other idea that was pointed out to me. The plaintiff included a Credit Card Agreement with their documents, in the included Credit Card Agreement, there is a paragraph about Arbitration. When and how should I play that card? Can I wait until, heaven forbid, I loose, can I then choose Arbitration? Or do I have to choose it before the case is determined?
  2. Here's where I'm at, Michigan Law is 6 years (unless someone can fill me in on what or how to get the court to use Delaware's laws). Three payments are on the monthly statements and were made in 2007. However the amounts "recorded" on the account were for small odd amounts, 2 months in a row for $111.10 and then one for $50. When Chase sent the subpoenaed documents to the Plaintiff they did not send copies of the supposed checks that were received. Those 3 supposed payments are what would be keeping the SOL from running out. According to the monthly statements, the last charges on the account were made in 2005. (In Michigan, Summary for Summary Disposition is the same as a motion for Summary Judgement everywhere else -- this is the second time they've filed it. I beat the first one.)
  3. Oh, I forgot to add, they filed ANOTHER Summary Motion to Dismiss which I have to battle AGAIN!
  4. Hello Gang, It's been a bit and things have progressed… To catch you up. I showed up to the defend my "Motion to Set Aside the Summary Judgment" and surprisingly, the judge said okay, you missed the date, obviously you were prepared as I have a well written brief (Thank you everyone!!!). He said it looks like the plaintiff has not shown cause, and he overturned their MSD/MSJ and told the plaintiff that unless they come back with a signature on something they don't have a leg to stand on. The plaintiff asked for more time for Discovery and the judge said yes. The plaintiff subpoenaed the credit card company. The credit card company came back with a whole bunch of more statement and a signed credit card agreement from way back in the early 2000's. The credit card statements show charges up until 2007 and then they stop. The judge told the plaintiff that they needed to come back with something that showed usage of the account. They do not have anything that was purchased with a signature, only the original agreement. (My ID was stolen back in 1998 in Detroit and I cannot get a police report to verify it). I'm screwed unless someone can think of something to help me. I'm thinking Statute of Limitations. No activity since 2007. Does anyone have any Michigan Case Law to help me? Any other suggestions? Thank you everyone!!!
  5. At this point, "gee, golly" is about all I have. I was so upset when the court clerk delt me the bad news, I was flabergasted! I asked her what I should/could do and after looking around, she slid a "Notice of Hearing and Motion" form across the counter and said, "Aside from that" and pointed to the "We aren't allowed to offer legal advise" sign. As fast as I could, I hand wrote in my best chicken-scratch "Motion to set aside summary disposition" and in it I went on to explain that I was there at the court on the correct day but that I never received a notice of the hearing and I am throwing myself on the mercy of the court and to please allow the motion for summary disposition to be reheard. So, you say I should just stick with what I have? I don't need to type up some fancy Motion and Brief and site a bunch of laws? Thank you for the support!!!
  6. The date the court clerk gave me for my "Notice of Hearing and Motion" (with a date and time on it), is to hear my Motion to Set Aside the Motion I missed; not to rehear the MSD/MSJ. If anyone has any experience overturning a Judgement, I would really appreciate it. I don't know if it's required, but I never received a "Notice to Appear" (MC06) or "Notice of Hearing" (MC07) - which is what I was expecting. There wasn't one sent by the sleazeball attorney with the Motion for Summary Disposition, and the court did not send one either. I'm guessing I can plead, "Due Process" or am I off base? Thanks!
  7. Has this happened to anyone? Any suggestions or ideas how to proceed?
  8. Thank you SDJ! Here is what was in the original complaint. They are claiming Breach of Contract. I take it that's good for me? So, I can make them/ask them to produce a signed contract?
  9. Their Account Statement and Sworn Affidavit are signed 8/31 and the suit was filed on 9/7. It was easy for them to do that as the Account Statement is just a sheet of paper a 5th Grader could do in Word, and the person Swearing Under Penalties of Perjury was the former office manager of the Law Firm and has been promoted Manager of the JDB. What a surprise. I did file a counter affidavit, but I filed it with my answers to their discovery. It was not within 10 days. I did however file the original with the court house and I did have a certificate of service filed. I know that hurts me a bit, but I did at least file it when I found out I needed one.
  10. Okay… help me out here… what a mess! Below is MCR 2.116. Plaintiff filed a Motion for Summary Disposition using paragraph C 9 & 10: (9) The opposing party has failed to state a valid defense to the claim asserted against him or her. (10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. So, they are saying I failed to state a valid defense to their claim -- but I did give a list of defenses when I filed my answer to the original complaint. 2.116, paragraph (E) Consolidation; Successive Motions. -- STATES (1) A party may combine in a single motion as many defenses or objections as the party has based on any of the grounds enumerated in this rule. (2) No defense or objection is waived by being joined with one or more other defenses or objections. I listed 14 defenses. Do they not have to specify all 14 defenses and give reasons why they should be dismissed? Under Paragraph (G) Affidavits; Hearing. (6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule ©(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion. Is this where I bring up any discrepancies with their supposed evidence? The Chain of Title Falsified Account Statements and the Card Holder Agreement (I have issues with all of them) Under Paragraph (H) Affidavits Unavailable. (1) A party may show by affidavit that the facts necessary to support the party's position cannot be presented because the facts are known only to persons whose affidavits the party cannot procure. The affidavit must (a) name these persons and state why their testimony cannot be procured, and ( state the nature of the probable testimony of these persons and the reason for the party's belief that these persons would testify to those facts. (2) When this kind of affidavit is filed, the court may enter an appropriate order, including an order (a) denying the motion, or ( allowing additional time to permit the affidavit to be supported by further affidavits, or by depositions, answers to interrogatories, or other discovery. Do I use this paragraph to resubmit my Counter-Affidavit and also bring up the fact that we are still in Discovery and that the Plaintiff has not produced a signed Contract? Am I on the right track? Is there any Michigan case law that I should know about that would help me? What about MCL 600.2145? How do I shoot holes in that piece of you know what? THANKS GUYS!!!
  11. Thanks BV. So, it looks like I'm not on the right track. What should I be pleading? What should I be focusing on? Thanks.
  12. This is daunting... I don't even know where to begin.... Well, actually, it looks likt it's best to start with MCR 2.116. Yikes. And I did plead affirmative defenses in my answer to the summons -- so you are saying they're just dismissing them? Do I restate them in my answer? Do I need to add more to them? Do I or can I add other defenses? Did I miss any? This is what I listed: II. AFFIRMATIVE DEFENSES Defendants other defenses are: 1. Plaintiff Lacks Standing. 2. Plaintiff violated MCR 2.105, MCR 2.104(A)(3), Alternate Service failed to specify date and time of service and the process server's official capacity. 1. The Plaintiff failed to name the real party in interest. 2. The Plaintiff failed to state a claim upon which relief can be granted. 3. Defendant was not notified of any assignment of the debt that is the subject of the Complaint. 4. Defendant does not consent to or ratify any assignment of the debt that is the subject of the Complaint, or any portion of it. 5. Plaintiff’s Complaint is time-barred Pursuant to MCL Section 600.5807. 6. Plaintiff’s claims are barred by the doctrine of laches Pursuant to MCL Section 600.5815. 7. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff. 8. Plaintiff has failed to name the Real Party in Interest. 9. Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; 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. 10. Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. 11. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. § 1692e(2)from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed. 12. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff. 13. Plaintiff's damages are limited to real or actual damages of actual cost paid or exchanged to alleged Original Creditor for the purported debt, for which Plaintiff failed to reference in their Complaint. 14. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.
  13. Hi Everyone, Need help answering this, HELP? What do I do? Do I file my own motion to dismiss? Discovery is not done yet. Do I answer it saying we are still in Discovery? Do I file my one motions to strike evidence? Help please.... Here is what I received: STATE OF MICHIGAN IN THE xxND DISTRICT COURT-2ND DIV. FOR THE COUNTY OF CAF, LLC, Plaintiff V Defendant(s). Attorneys for Plaintiff MOTION FOR SUMMARY DISPOSITION Now Comes Plaintiff, by and through its counsel, X, P.C., and moves the Court for Summary Disposition and states the following in support of its Motion for Summary Disposition: 1. This Motion is brought under MCR 2.116 © (9) and/or (10). 2. Defendant has failed to state a valid defense to the claims asserted against her and has failed to assert facts giving rise to an issue of material fact for trial. 3. The Complaint is based upon an Affidavit of Account Stated, which was attached to Plaintiff's Complaint and which is incorporated herein by reference. (MCL 600.2145) 4. Defendant failed to include a Counter-Affidavit in her answer to the Complaint. 5. Attached as Exhibit A is the Chain of Title to verify Plaintiffs ownership of the Defendant's account at issue. 6. Attached as Exhibit B are copies of detailed account statements that were sent to the Defendant. These statements indicate payments, purchases, interest and fees that accrued on the account and the statements are attached to further demonstrate Defendant's knowledge of the account, its terms and charge-off balance as indicated on the final statement. 7. Finally, attached as Exhibit C is the applicable cardholder agreement providing numerous terms and conditions on the account. WHEREFORE Plaintiff requests this Court grant Summary Disposition in favor of the Plaintiff and against Defendant, and further requests that judgment be entered in favor of Plaintiff as set forth in its Complaint. Respectfully Submitted, x Attorneys for Plaintiff STATE OF MICHIGAN IN THE xxND DISTRICT COURT-2ND DIV. FOR THE COUNTY OF CAF, LLC, Plaintiff V Defendant(s). Attorneys for Plaintiff BRIEF IN SUPPORT OF MOTION FOR SUMMARY DISPOSITION Introduction This Motion involves a cause of action filed by AF, LLC against xx ("Defendant") in the amount of $XX, plus interest and costs incurred since the date of the filing of the Complaint. Argument This is a debt collection case. Plaintiff attached to its Complaint, as Exhibit A, an affidavit stating the amount owed by the Defendant and attached copies of the account. This was then served on the Defendant together with the Complaint. Defendant did not attach an affidavit denying the amount owed to the Answer. Therefore, Plaintiffs affidavit is prima facia evidence of the indebtedness and Defendant has not presented valid defenses to the allegations of indebtedness. *1 *1 Michigan Compiled Laws 600.2145 states in relevant part: In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant, with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. Attached as Exhibit B are copies of detailed account statements that were sent to the Defendant. These statements indicate payments, purchases, interest and fees that accrued on Defendant's account. Plaintiff has attached these statements to demonstrate Defendant's knowledge of the account at issue, its terms and the remaining balance. As a result of the foregoing, Plaintiff is entitled to Summary Disposition on all Counts of its Complaint based on MCR 2.116©(9) and (10) and entry of Judgment in its favor, to include attorney fees, costs, and such other relief this Court deems appropriate. Conclusion For the reasons set forth above, this Court should grant Plaintiffs Motion for Summary Disposition and enter Judgment in favor of the Plaintiff. Respectfully Submitted, XX Attorneys for Plaintiff
  14. I did not. I mostly answered: xx. Defendant objects to and denies the allegations contained in Paragraph xx of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.
  15. Oh man, I am so glad this board is here. I totally misinterpreted what they were asking for -- "For each allegation of the Plaintiff's Complaint to which you have denied, provide the complete factual and legal basis for the denial and provide and explanation of all evidence Defendant will rely upon to support their position." I thought they meant when they said, "to which you have denied" they were talking about this document, the discovery document; Duh! They meant the original complaint. In the original complaint, I denied each allegation. So, do I now have to provide legal basis for each of the items in the original complaint? (see below) If so, help please. JURISDICTIONAL ALLEGATIONS 1. Plaintiff is the assignee of Defendant's account(s) from Ch@se. The account(s) was/were assigned from Ch@se to Global Acceptance CC, to Capital Alliance Financial, LLC, the Plaintiff. 2. Upon information and belief, Defendant me, resides at at my house 3. The amount in controversy, exclusive of interest and costs, is less than $25,000.00. PAGE 2 GENERAL ALLEGATIONS 4. On April x, 2004, Defendant(s) opened a charge account with original creditor to provide credit on merchandise purchased. A credit card agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiffs knowledge, is in Defendant's possession. 5. Defendant(s) accepted the terms of the Agreement by use of the credit card. 6. Defendant(s) have failed to make payments as agreed upon and the account is in default. 7. There is now due a balance of $8K, plus pre-suit interest at the rate of 13 percent per annum on account number xxxxxxxx from 10/2009 to 2011 in the amount of $2k, resulting in a total due and owing of $10k as is stated in Plaintiff's Account Statement, attached as Exhibit A and an Affidavit, attached as Exhibit B. 8. Despite repeated demands, Defendant(s) have failed to pay the entire amount due and the account is in default. 9. To avoid substantial injustice, Defendant(s) should be required to repay Plaintiff the sum due. COUNT I BREACH OF CONTRACT 10. Plaintiff restates and re-alleges paragraphs 1 through 9 herein. 11. Defendant(s) are in breach of contract by failing to pay for charges incurred as agreed and there remains an unpaid balance of $10K COUNT II ACCOUNT STATED 12. Plaintiff restates and re-alleges paragraphs 1 through 11 herein. 13. Defendant(s) have failed to object to the accuracy of the monthly billings which; received and which are in Defendant's possession. 14. The account has become stated between the parties. PAGE 3 COUNT III UNJUST ENRICHMENT 15. Plaintiff restates and re-alleges paragraphs 1 through 14 herein. 16. Defendant(s) received, accepted and benefitted from the use of the original creditor account and Plaintiff has not been fully paid the reasonable and agreed upon value of said usage of the account. 17. Defendant(s) have been unjustly enriched to the detriment of the Plaintiff and are therefore indebted to Plaintiff in the amount stated herein.