upsman40

Members
  • Content Count

    147
  • Joined

  • Last visited

Community Reputation

16 Good

About upsman40

  • Rank
    CIC Member
  • Birthday 06/24/1966

Profile Fields

  • Location
    Michigan
  1. Check your rules of Civil Procedure to see how discovery and admissions has to be performed. In Michigan or at least the court i was in, you can file Interrogs, admissions, affirmative defenses etc.. along with your answers....
  2. No affidavit, Bill of Sale and Assignment, nothing of that sort? I am not versed in CA rules of Civil procedure, I would get interrogs and admissions ready to fire off along with your affidavit denying alleged account. If this is all they have sent you so far, they have nothing to prove they own the account.....
  3. I will look at your Rules, hopefully irish will come along.....It looks as though you could submit an MSJ as well. Lets see what the other posters think
  4. I tripped up ASSet in MI with Interrogs......not that they wouldnt have shot themselves in the foot anyway, but they stated in an interrog that they did not have the underlaying contract in their possesion, but would produce it and forward to the defendant before trial. Tis then set them up in admissions etc.... and u;ltimatley is what got the judgment dismissed with prejudice. These guys are so arrogant they think the average person is stupid and does not pay attention to what is going on.
  5. I submitted my affirmative defenses along with my answers at the same time here in Michigan. I was told by another lawyer that was there it was a smart move to keep them from filing any motions for judgement as you stated. Not sure if that was true, however it did not hurt my case.
  6. Did they use proper format in responding? i am in Michigan not sure what your Rules state. Admit Plaintiff has no basis for this statement as fact. Plaintiff declares account statements were mailed each month in request for documents, then states objection to the same question as it would result in a legal conclusion.( Or save this for trial to attack their credability, you will get different answers on here, I went the way of a second set of admissions to attack everything they contradicted themselves on) This makes their "Bill of Sale and Assignment" junk Admit you are unable to obtain defendants application for alleged account. Admit same as above Admit exhibits submitted by Plaintiff were created by the Plaintiff in this case. You may want to take each exhibit and ask to admit Plaintiff created these documents. I am missing some info here, i think she was not in good standing by looking at this, you could obtain copies of the offense and letter sent ot her, submit them as evidence and move to strike her notorization and the document, however they wil just get it resigned and admitted into evidence, but it shows even though Asset was sued for 2.5 million for deceptive practices that they are still not abiding by the decree that was given them. Hit them with admissions for each document individually. Whos to say how those were created by them, you could do the same(you did if you submitted and affidavate denying the alleged account). Why couldnt you type up someting and say ASSet owes me $5000.00? Their created documents do not show assignment or ownership of anything. Speciffically quote the statement in their document or highlight and attach asking them to admit the Plaintiff actually has no idea what exhibits state and pertain to as they have no legal proof to state a claim to alleged account, and in their Bill of Sale and assignment it states it has not warranty or gaurentee of any type This one is funny no Bill of Sale specifically identifies a single account that i have ever seen Put here on a witness list and subpeona her should be able to google her wherabouts...
  7. They have no additional documents and will not provide them. When they state they are not the original creditor and will obtain and send them to you ,1.) They do not have them as stated. 2.) The OC will not have them or provide them if they do. I would get a second set of admissions ready hitting every single one they either said they could produce at trial, or would obtain. I am assuming you denyed even having the credit card? The burden of proof is on them. Did you submit an affidavate denying knowledge of alleged account etc.. etc..? 2. Admit or Deny Plaintiff has no personal knowledge as to the mailing by the original issuer to Defendant of any Billing Statement for the account. Objection to the Request as to the extent the question seeks a legal Conclusion. In my request for Documents they state " Account Statements were mailed to the Cardholder/debtor each month. I would ask them to admit they have no personal knowledge or proof alleged account statements were mailed. If personal knowledge is available based in fact please provide the proof of alleged account statements being mailed... i will look through this some more and add my 2 cents as I would see it, I am sure yu will get more help as time moves along. If they cannot provide the underlaying contract, as you stated above "4. And a " Important Notice of Change in Terms" of which is 16 pages of the Agreement in Boxes on each page. The only date I could find in this Exhibit was 2006 when BOA and MBNA merged. The account was opened in 2005." They are unable to produce the underlaying contract as was the same in my case. The judge ordered them to produce the contract at the pre trial hearing within 21 days. The contract was never produced i filed a motion to dismiss with prejudice and won.
  8. Linda is right, if you want ot go the route of Arbitration you have to follow the rules!! Rule 2.111 General Rules of Pleading (A) Pleading to be Concise and Direct; Inconsistent Claims. (1) Each allegation of a pleading must be clear, concise, and direct. (2) Inconsistent claims or defenses are not objectionable. A party may (a) allege two or more statements of fact in the alternative when in doubt about which of the statements is true; ( state as many separate claims or defenses as the party has, regardless of consistency and whether they are based on legal or equitable grounds or on both. All statements made in a pleading are subject to the requirements of MCR 2.114. ( Statement of Claim. A complaint, counterclaim, cross-claim, or third-party complaint must contain the following: (1) A statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to CHAPTER 2 CIVIL PROCEDURE Chapter Last Updated 5/1/2012 inform the adverse party of the nature of the claims the adverse party is called on to defend; and (2) A demand for judgment for the relief that the pleader seeks. If the pleader seeks an award of money, a specific amount must be stated if the claim is for a sum certain or a sum that can by computation be made certain, or if the amount sought is $25,000 or less. Otherwise, a specific amount may not be stated, and the pleading must include allegations that show that the claim is within the jurisdiction of the court. Declaratory relief may be claimed in cases of actual controversy. See MCR 2.605. Relief in the alternative or relief of several different types may be demanded. © Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must (1) state an explicit admission or denial; (2) plead no contest; or (3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial. (D) Form of Denials. Each denial must state the substance of the matters on which the pleader will rely to support the denial. (E) Effect of Failure to Deny. (1) Allegations in a pleading that requires a responsive pleading, other than allegations of the amount of damage or the nature of the relief demanded, are admitted if not denied in the responsive pleading. (2) Allegations in a pleading that does not require a responsive pleading are taken as denied. (3) A pleading of no contest, provided for in subrule ©(2), permits the action to proceed without proof of the claim or part of the claim to which the pleading is directed. Pleading no contest has the effect of an admission only for purposes of the pending action. (F) Defenses; Requirement That Defense Be Pleaded. (1) Pleading Multiple Defenses. A pleader may assert as many defenses, legal or equitable or both, as the pleader has against an opposing party. A defense is not waived by being joined with other defenses. (2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of action has been asserted by complaint, cross-claim, counterclaim, or third-party claim must assert in a responsive pleading the defenses the party has against the claim. A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted. However, (a) a party who has asserted a defense by motion filed pursuant to MCR 2.116 before filing a responsive pleading need not again assert that defense in a responsive pleading later filed; CHAPTER 2 CIVIL PROCEDURE Chapter Last Updated 5/1/2012 ( if a pleading states a claim for relief to which a responsive pleading is not required, a defense to that claim may be asserted at the trial unless a pretrial conference summary pursuant to MCR 2.401© has limited the issues to be tried. (3) Affirmative Defenses. Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting (a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery; ( a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part; © a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise. Linda could be correct here, in my case against Asset, I as stated did not find this site until after I had sent in my answers, affirmative defenses, and Interrogs, some say you need to know what they have to defend, others say don't tip them off. In my case they could not produce the underlaying contract.....go figure this one, it should have been the easiest for them to do. When it was not produced it got dismissed with prejudice. my case was over $10G. I ma expecting another one from MRS I believe for around $7 to $8 g's that was opened in 1997 and defaulted in suposedly 2011 from Chase, I have no record of it. I am definatley studying up un the Arbitration side of it. Just not sure if i have to use the agreement from 1997(and i can find one) or 2011. I would definatley raise the Arbitraion in your affirmative defenses, and go that route if you are able....way too costly for them for the amount they are going after you for. In my case i wanted nothing to do with cross examining etc....but now i feel more comfortable. I would take a day or two and a deep breath and weigh your options here....
  9. bmc100, I definatley have nowhere near the knowledge you do on this stuff, however i have been searching feaverishly for case law etc, and i find nothing other than what you have. This will be interesting to see how this pans out. If they did not provide a contract, it was pointed out in the answer, they still did not ammend the complaint, well you got them, unless you have a squirelly judge. You have said it before they didnt attach it, because they do not have it!!
  10. Here is how I would answer the summons, lets see how the forum beats this up a bit, I believe if you look at my post from my case you will see my affirmative defenses I sent along, as well as my Interroggs. Some excellent suggestions were made by Brunno, ladyhunter, BV80, and of course bcm100 to brush them up a bit. Remember i sent all of this before i found this forum, this got me to pre trial where the judge demanded Asset produce the underlaying contract, they did not and it was dismissed with prejudice.... Defendant can neither confim nor deny as defendant is not versed in law and jurisdiction. Defendant will hold Plaintiff is well versed in law and is familiar with venue proper. Defednent can neither confirm or deny this holds true. Same answer as pertained to 1 above. DENY in part, I have been presented no evidence that the alleged account with OC is the defendants account or debt alleged in this complaint. Plaintiff has provided no proof. Expressly, Exhibits A and B provided by the plaintiff amount to nothing more than documents on their letter head. Deny plaintiff has not provided or proven any information as to regards of their “purchasing” alleged debt for alleged collection. Nor has the plaintiff provided any information from the original creditor to prove this is the defendants account and/or it was defaulted on. Deny. Defendant has no knowledge or information sufficient to form an opinion as to the truth and accuracy of alleged assignments or entitlements of plaintiff’s actions or business they allegedly conduct. Exhibits “A” and “B” show nothing to confirm from alleged original creditor of this statement being true, specifficaly exhibits "A" and "B" show no specific account being attached to alledge Bill of Sale and Assignment and Plaintiff in no way can show they have personal knowledge of business records keeping by alleged OC Deny, defendant requested DV from Palintiff in Jul y of 2012 with no response from the Plaintiff. Received a letter from the legal cousel for ASSet in October that documents would be forwarded. As of this date nothing has been received from Plaintiff, to show alleged account belongs to the defendant. No admissable evidence has been submitting showing legal assignment of allged debt as well. defendeant holds the plaintiff to the strictest proof here of. Defendant denies any alleged obligation to Plaintiff in Paragraph 6, as there is not, nor has there ever been any agreement, written, oral or implied between the Plaintiff and Defendant. Deny I have no contract or relationship, or have I entered into any agreement pursuant to the allegations of the plaintiff.
  11. Issues Affidavit Affidavit must be issued 10 days prior to filing or it is not timely MCL 600.2145 An Untimely affidavit is insufficient as a matter of law (move to strike) An "affidavit . . . made more than ten days before the complaint was filed" does not void the collection lawsuit; untimeliness merely "prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit." Capital One Bank v. Ringelberg, 2005 WL 2319125, *1 (Mich.App.2005). An exception exists, however, with respect to "documents referenced by the pleadings themselves that are central to the plaintiffs claim." Brown v. Scott, 329 F.Supp.2d 905, 909 (E.D.Mich.2004) (citing Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.1999)). The only documents referenced in the complaint on file are the state-court summons and complaint and the account affidavit. Those documents do nothing to advance the validation and ownership claims I think timing is important as to when to move to strike an untimely affidavit as some of the cases I read indicated that the affidavit was sometimes left in play although its weight was affected.
  12. You do have something it must be within 10 days of the filing of the compalint. This will get it delayed but they will re file and you can start over. This is from AntiqueDave, a lot of words here, if you can get to court early talk to the clerk and see if you can or how you can get this done. i hope you get this in time Issues Affidavit Affidavit must be issued 10 days prior to filing or it is not timely MCL 600.2145 An Untimely affidavit is insufficient as a matter of law (move to strike) An "affidavit . . . made more than ten days before the complaint was filed" does not void the collection lawsuit; untimeliness merely "prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit." Capital One Bank v. Ringelberg, 2005 WL 2319125, *1 (Mich.App.2005). An exception exists, however, with respect to "documents referenced by the pleadings themselves that are central to the plaintiffs claim." Brown v. Scott, 329 F.Supp.2d 905, 909 (E.D.Mich.2004) (citing Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.1999)). The only documents referenced in the complaint on file are the state-court summons and complaint and the account affidavit. Those documents do nothing to advance the validation and ownership claims I think timing is important as to when to move to strike an untimely affidavit as some of the cases I read indicated that the affidavit was sometimes left in play although its weight was affected. Counter Affidavit Defendant denies the debt and allegations asserted in the plaintiff’s affidavit. (Counter Affidavit creates question of material fact) IF you have a question of material fact does that not defeat a MSJ by the plaintiff? You want to stay alive in this game as long as possible because time is your friend, it may not seem like it when you are trudging through this but the longer it takes to get to trial, the more time the plaintiff has to expend, the more expenses they incur those are the things that bring them to the table to settle or to drop if they cannot prove their standing. I had to carefully consider my wording in my affidavits, because I do not want to lie in a notarized affidavit. I had to also consider the issue of “artful language” According to Socrates; The Sophist is a person who can "deceive" through the use of artful language. That is to say, the Sophist is capable of making things appear true when they are false and false when they are true. The words used in an affidavit are important, they have meaning and there is a fine line to walk. Affidavits submitted by the plaintiff are going to run the gamut, generally they attempt to get you to make an assumption about their version of the truth but the trick in dealing with them lies in taking the affidavit apart sentence by sentence and at times word by word. I read some accounts of sanctions given for artful language and it was an issue that I brought up against the plaintiff and their affidavit/affiant. http://www.creditinf...ross-claim.html The Court is lead to believe through such artful language that the affiant has authenticated verified, validated and established the reliability of the records but the affiant does not even know what records will be later attached to the affidavit and in signing hundreds of affidavits daily the affiant has no time to verify or validate any of the information they are attesting to. The affiant literally only has seconds to sign each affidavit. This is further complicated by the lack of following any procedure as to the notarization of the affidavits and casts great doubt upon whether or not the rules regulating notaries are followed as well. This is true for both employees of Original creditors and Assignees of debt. The process of creating verifying, and validating the information are suspect and the affidavit represents an unfair deceptive means to collect a debt and is a misrepresentation if not an outright fraud to the consumer-debtors and the state courts. There are two issues of deception, the first being the title of the affidavit which presents the affidavit of a document already in process and submitted to the court in a lawsuit and second, The Plaintiff questions the statements made on the affidavit and asserts that taken as a whole that the affidavit is materially false, deceptive and misleading in spite of the possibility that some information on the affidavit may be correct. If the plaintiff asks for leave to resubmit the Re-submitted affidavit will be the same with only change of date: Any attempt by the plaintiff to alter or resubmit or leave the affidavit in play needs to be challenged. Affiant could not possibly do what they have said they did in verification of the account. Think about it, they are signing 200 to 400 affidavits a day, regurgitation of numbers from a computer screen does not qualify as a review that allows an affiant to claim that the information was verified, so the numbers were on the screen, what were they verified against? (Senate Testimony) There is a lot of information on the web about the robo signing of affidavits during the mortgage crisis, the issues regarding the affidavits and the manner in which they are created are issues you might be able to exploit in a credit card case. Fewel vs Fewel (1943), Moon v Moon (1944) , People v Dickinson (1976) "In the absence of statutory permission, an affidavit (ccp 2003: An affidavit is a written declaration under oath, made without notice to the adverse party) is not competent evidence; though made under oath, it is hearsay because there has been no opportunity to cross-examine the affiant. In Michigan in an account stated case, the affidavit of debt is very very important. If a MI defendant does not object to that affidavit and counter it with their own affidavit of denial with their answer the affidavit can be considered to be prima facie evidence that the defendant owes the amount alleged due. Recently, this Court held that "when an affidavit is filed, it is presumed valid. It is only in subsequent judicial proceedings that the presumption can be rebutted." Kirkaldy v. RIM, 2007 One need look no further than the instant court term to observe that this Court has repeatedly stated that it will enforce unambiguous statutes as written. City of South Haven v. VAN BUREN CTY. BD. OF COM'RS, 2007 The Court then explained that "nothing in either MCL 600.2912 e (1) or MCR 2.108 (A)(6) authorizes a defendant to determine unilaterally whether the plaintiff's affidavit of merit satisfies the requirements of MCL 600.2912 d." Bush v. SHABAHANG, 2008 In Saffian, our Supreme Court relied on three bases for the creation of the presumption of validity for affidavits of merit: (1) the absence of statutory language permitting a defendant to unilaterally determine whether the affidavit was valid, (2) the fact that trial courts typically determined the sufficiency of pleadings, and (3) based on policy reasons such as the orderly and efficient administration of justice. Saffian, supra at 13-14. Given the foregoing, we conclude that plaintiff did not present any factual support for its contention that defendant had defaulted in his payments. The credit application and note provide factual support for plaintiff's claim that defendant entered into a financing agreement, but they do not show that defendant defaulted in his payments. The affidavit also does not establish that point. The affidavit merely states the account balance. Although the affidavit also refers to attached records of defendant's account, no records were attached. Because the evidence submitted by plaintiff failed to show that defendant was in default, plaintiff did not meet its initial burden of providing factual support for its motion and the trial court erred by granting plaintiff's motion for summary disposition. Cf. Oliver v Smith, 269 Mich App 560, 566-567; 715 NW2d 314 (2006). Plaintiff supported its motion for summary disposition by submitting an affidavit that (1) set forth the debt allegedly owed by defendant to Citibank, and (2) indicated that the debt was assigned to plaintiff. Plaintiff also presented copies of the statements issued on the account, which showed that defendant's former address was the address used for the account. The statements showed that the account was used and that payments were made on the account in 2001 and 2002. Because plaintiff presented affidavits and documentary evidence in support of its motion, defendant had the burden of responding to plaintiff's motion with documentary evidence or other evidentiary proofs showing that there was a genuine issue of material fact for trial. Smith, 460 Mich at 455-456 n 2. Affidavits and other documentary evidence submitted in support of a motion under MCR 2.116©(10) may "only be considered to the extent that the content or substance would be admissible as evidence." MCR 2.116(G)(6).
  13. I owould get down to the courthouse and see if you can ammend your defenses. All is not lost this just makes it a bit tougher. Hopefully bmc100 will be around and he can lend a hand here. Get familiar with your courts rules of civil procedure!! You have to follow format when sending admissions, discovery, Interrogs etc....the attorney for sure will not respond to these
  14. Here are the questions which most you have answered. I would get working on submitting admissions/Interrogs to them right away. I did not see where used lack of standing as an affirmative defense, which so far with what they have included with the complaint is definatley a defense you would want to raise. 1. Who is the named plaintiff in the suit? 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) 3. How much are you being sued for? 4. Who is the original creditor? (if not the Plaintiff) 5. How do you know you are being sued? (You were served, right?) 6. How were you served? (Mail, In person, Notice on door) 7. Was the service legal as required by your state? Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? 9. What state and county do you live in? 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 11. What is the SOL on the debt? To find out: Statute of Limitations on Debts 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 17. Read this article: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits
  15. Tort, I am not sure what jurisdiction you are in in Michigan, however and wothout seeing your answer to your summons and what it pertained to, the judge more than likely will ask very few questions tomorrow, basically is this your debt, blah blah blah. He will then set a time frame for discovery etc. As Bruno stated i would get the correct format for your discovery and look at your courts rules of civil procedure for when and how to file an MTD. Without any discovery being done yet etc...your motion to dismiss will be denied more than likely. May want to answer the 20 questions on the home page quickly and I am sure bmc100 will be along shortly to help as well. Missing too much info to be able to help at this point. Did the Plaintiff plead assignment in its original complaint? if not file the motion to dismiss based on that fact. Straight from bmc100 below, check out his sticky on the home page. (Step by Step in defending a lawsuit against a JDB in Michigan....Again though we need more info as to what was in the complaint and what if any evidence they sent. MCL 600.2041 states the “every action shall be prosecuted in the name of the real party of interest. In nearly identical wording, MCR 2.201( requires that an action must be prosecuted in the name of the real party of interest. As a result, the Plaintiff has failed to state a claim where relief can be granted, pursuant to Masterspark Co. v. Hickerson, 211 Mich 411, 415; 179 N.W. 232 (1920), and McKnight v. Lowitz, 176 Mich 452, 453, 142 N.W. 769 (1913), an assignee must plead the assignment of the debt from the assignor within it’s complaint to establish that it is the real party of interest sufficient to support a cause of action. 8. I have also been advocating to many posters to file a motion to dimiss, prior to filing an answer. If you see that the Plaintiff did not plead the assignment, do not let the case move forward until they can either correct their mistakes by properly pleading the assignment and by attaching the proper documentation to the complaint. 9. In every case, the assignment documents are missing. The Plaintiff will usually provide the bill of sale and a computer printout with your personal information in it. The bill of sale is signed by an employee of the original creditor, but carefully read the bill of sale. It will also state other documents that the Plaintiff does not want you to see. Given recent case law, if the Plaintiff cannot provide the written contract upon which the sale is based that also shows that your account was included in the sale of accounts, the Plaintiff has failed to show they have standing.