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Found 37 results

  1. Howdy, gang! I'm hoping someone can help walk me through the next steps of my fight against Midland Funding here in Michigan. Background So far, we were served the complaint with only an affidavit attached, filed our answers, and went to pretrial. The judge provided time for discovery, ordered mediation, and set a trial date. Today, we received a packed in the mail that includes a Proof of Service, Plaintiff's First Request for Admissions, Plaintiff's First Set of Interrogatories, Plaintiff's First Request for Production of Documents, Plaintiff's Witness List, and Plaintiff's Exhibit List. Attached is a "Bill of Sale, Assignment and Assumption Agreement", "Card Agreement", and "Field Data" (data printout of account number, last payment date, name, SSN, amounts, etc). The Bill of Sale does not include specifics about the account, addresses, names, etc. It's a generic "We're the bank, you're the JDB, and we give you rights to the accounts in a section of the Agreement". From what I gather, I should push them to provide the actual agreement to prove they have standing to bring the case. Where I'm Lost There is a lot of information here and in other threads and honestly, I'm a little overwhelmed by it all. As such, I'm not really sure what I need to do next. The logical thing to me seems to get my request for discovery out, wait the 28 days, and then file a Motion to Dismiss based on them not providing any information that shows the account is mine. Though, I think I'm also reading that I should file that first, just to get the ball rolling and force their hand since they won't likely respond to the discovery with anything meaningful anyhow. My Question There's so much information to absorb on this boards and I've been reading page after page after page of well worded information, but I can't seem to get where my particular path should take me. Do I request discovery, wait, then file my motion? Do both in parallel? Reverse the order? Is there another option I should be pushing for at this stage? Sorry if this was a long read, or if I'm breaking any rules/guidelines around these posts. My brain is going a thousand miles a minute right now trying to soak in so much information, I just need a little light to show me the way. Edit - Found the "Answer these questions..." post, so I didn't want to break any forum ediqute by not filling it out. 1. Who is the named plaintiff in the suit? Midland Funding LLC 2. What is the name of the law firm handling the suit? (Too Specific) 3. How much are you being sued for? ~$2,000 4. Who is the original creditor? (National Credit Card Company) 5. How do you know you are being sued? Served with a complaint 6. How were you served? Mail and in-person 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Michigan, Wayne County 10. When is the last time you paid on this account? Unknown, no documents, but suggested date implies 4-5 years 11. What is the SOL on the debt? 6 years 12. What is the status of your case? Complaint > Defendant Answers > Notice of Pretrial > Pretrial > Mediation and Trial dates set 13. Have you disputed the debt with the credit bureaus? No (Unaware of until the suit) 14. Did you request debt validation before the suit was filed? No 15. How long do you have to respond to the suit? Already have, will need to post specific charges later (keeps to lockbox left at work) 16. What evidence did they send with the summons? The complaint only had an affidavit, post pretrial documents include non specific bill of sale, cardholder agreement, and account printout.
  2. Hello everyone, I am being sued for CC debt by Midland and need some help (even after reading bmc100's thread and tons others), it mostly pertains to the answer. I want to thank you in advance for your help! I would love to put together a form for every step of my Michigan suit, so others could simply enter their information and tune some of the responses to their particular case. Hopefully that would lift some burden off anyone sued in the future. I have attached the entire complaint (edited of course) and listed a google drive location below where you can view it Link: Removed until fully edited Basically I'm not sure if this is account stated or breach of contract. I'm leaning towards breach of contract, but I'm not sure. Complaint: 1. The plaintiff is the owner of the within credit card account through Purchase, bearing account number XXXXX. 2. By use of the account, the defendant became bound by the terms in the credit card agreement. The existence is established in the exhibit attached hereto as Exhibit A. 3. The plaintiff has exercised its rights pursuant to the terms of said agreement to accelerate the time for payment of the entire balance due and owing by the defendant to the plaintiff. 4. That there is now due and owing to the plaintiff by the defendant, the sum of $1500ish on said credit card agreement. 5. Although demand has been made upon the defendant to liquidate the balance due and owing, the defendant failed to do so. I don't see an affidavit in here dated even close to the summons date. If none, do I file a MTD or MSJ? I’d like to just get a PTD at a reasonable price so it is removed from reporting. If it is breach of contract, did they need to attach the contract? They one have the front and back of a statement! If it is account stated, Here are my current Answers and Defenses: 1. Denied: Responding Party objects to this request on the ground that it is vague, ambiguous and unintelligible in that Responding Party has to speculate as to the meaning of "the credit card" and "the account." 2. Denied: This request calls for admission of matter defendant has denied and thus it is improper. 3. Denied: This request calls for admission of matter defendant has denied and thus it is improper. 4. Denied: This request calls for admission of matter defendant has denied and thus it is improper. 5. Denied: This request calls for admission of matter defendant has denied and thus it is improper. AFFIRMATIVE DEFENSES (Should I use this? Do I need to list a defense for each complaint item?) As and for a Defense The plaintiff has failed to provide legal evidence that they are legally entitled to collect the debt. I will add the certificate of service. If it is Breach of Contract, I really haven't seen any answers. So i could use some help. Questions Summarized Breach of contract or Account Stated? ACCOUNT STATED Is there an affidavit? NO Should I file an Answer, MSD, or MSJ? Is my answer good and complete? Or should I just use an Affirmative Defense? Should I attach an affidavit? 1. Who is the named plaintiff in the suit? Midland Fundling LLC 2. What is the name of the law firm handling the suit? Weltman 3. How much are you being sued for? $1500ish 4. Who is the original creditor? Midland Fundling LLC 5. How do you know you are being sued? Summons 6. How were you served? In person, at home 7. Was the service legal as required by your state? Yes 8. What was your correspondence with the plantiff before you think you were being sued? Calls I think, but I'm not sure. 9. What state and county do you live in? Michigan 10. When is the last time you paid on this account? I don't recall 11. What is the SOL on the debt? SOL is 6 years I think, the debt is not older than 3 years. 12. What is the status of your case? Suit served? Motions filed? I have until Friday to file an answer o MTD. 13. Have you disputed the debt with the credit bureaus? No 14. Did you request debt validation before the suit was filed? No 15. How long do you have to respond to the suit? I have until Friday to file an answer or MTD. 16. What evidence did they send with the summons? The entire complaint is on a google drive that is viewable in PDF here: Removed until fully edited Again, I thank all of you in advance for your help and comments. I apologize if there is a thread that I missed, I have been searching this site for a little over 2 weeks.
  3. I've received a "verification of the debt in question" letter from the Stillman Law Offices. In the letter I received: A signed contract from Jan. 23, 2006, with my signature and SSN on it. 4 months of billing statements from Feb 2011 to May 2011 with nothing but late fees and interest listed on them. This is my reply to their letter. Dear Ms. Wyman; This letter is in response to your correspondence of December 26, 2013. Pursuant to the Fair Debt Collection Practices Act, § 809(, 15 USC 1692g, please provide ALL of the information to validate the above-referenced alleged debt. This is NOT a request for “verification” or proof of my mailing address, but a request for VALIDATION made pursuant to the above named Title and Section and Fair Credit Reporting Act § 611 (a)(1)(A) [15 U.S.C. § 1681i]. I respectfully request that your offices provide me with competent evidence that I have any legal obligation to pay you. Please provide me with the following: 1) Provide proof of what the money you say I owe to you is for; 2) Explain and show how you calculated what you say I owe; 3) Provide me with copies of any papers that show I agreed to pay what you say I owe; 4) Provide a verification or copy of any judgment if applicable; 5) Identify the original creditor; 6) Prove the Statute of Limitations has not expired on this account; 7) Provide proof that you are licensed to collect in the state of Michigan; and 8) Provide proof of your license numbers and Registered Agent. At this time I will also inform you that if your offices have reported invalidated information to any of the three major Credit Bureau’s (Equifax, Experian or Trans Union) this action might constitute fraud under both Federal and State Laws. Due to this fact, if any negative mark is found on any of my credit reports by your company or the company that you represent I will not hesitate in bringing legal action against you for the following: 1) Violation of the Fair Credit Reporting Act; 2) Violation of the Fair Debt Collection Practices Act; 3) Defamation of Character If your offices are able to provide the proper documentation as requested, I will require at least 30 days to investigate this information and during such time all collection activity must cease and desist. Also during this validation period, if any action is taken which could be considered detrimental to any of my credit reports, I will not hesitate in bringing suit on against you. This includes any listing any information to a credit reporting repository that could be inaccurate or invalidated or verifying an account as accurate when in fact there is no provided proof that it is. Pursuant to the Fair Credit Reporting Act § 611 (a)(5)(A) [15 U.S.C. § 1681i], should your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately. It would be advisable that you assure that your records are in order before I am forced to take legal action. This is an attempt to correct your records; any information obtained shall be used for that purpose. Your cooperation in this matter is greatly appreciated. Please do not hesitate to contact the undersigned via the USPS at the address listed above should you have any questions or concerns. Very truly yours, Lostboy38 P.S. Ms. Wyman, you failed to sign the cover letter dated December 26, 2013 bringing into question the validity of your notice. I assume that it is an over sight and you will provide me with a signed copy as soon as possible. Failure to supply a signed copy within 10 days will be taken to mean that this is a JDB chasers illegal means of threatening an innocent consumer. Any advice?
  4. Yes, you read the subject line, and its true...read on: First of all, you should all know that one of the Forum members has been helping me throughout this case, much kudos goes to him! Some of the below are excerpts from messages I have sent him. All of this actually started back last January, but no suit was filed by Midland until June. So far I have weathered their MSJ (denied!!!), the prelim trial, and the trial itself. The trial date was December 3rd at 2PM, I of course arrived early and went into the courtroom at 1:55. There were some criminal cases still ongoing, and those did not finish until 2:10 or so. In the meantime, I watched the door for the JDB lawyer, since I had not seen him yet. At 2:00 a lady entered the courtroom carrying a large tote bag with what looked like files in it, so I thought, "OK here we go..." At 2:10 she left the room, and at 2:15 they called my case. I approached the bench...by myself...no one else was in the courtroom, save for the judge, bailiff, and courtroom workers. The clerk stepped outside to announce in the hallway, and the reporter got on the intercom and paged the JDB counsel to the courtroom. "Mr. Defendant, I am going to let it be shown that you are here and that Plaintiff is not. I am going to dismiss this case WITH PREJUDICE." Absolutely stunned, I looked at him in surprise...I WON!!! I offered a tentative smile, and said, "But your Honor, I took the time to get all dressed up..." he actually smiled back, and said, "Well, it looks like both you and I have some extra time now, doesn't it? I have dismissed this with prejudice; this case is finished in this court's eyes." But, now the paranoid part of me takes over...can they file a motion to set aside judgement? For all I know, his car broke down on the way to the courthouse (it is a cross-state drive for him). Maybe I am still stunned by this whole thing...and what about going after them for violating FDCPA regulations? It seems to me that they knew their goose was cooked when they did not show up in court today. I am sure I could find a lawyer around here to take the case if there are grounds.... And now, today in the mail, it appears my paranoia has been substantiated: I received a notice of hearing for December 20th. The plaintiff has filed a motion to set aside dismissal and reinstate. They are saying that 'due to a clerical mistake and inadvertence by Plaintiff's attorney, Plaintiff's attorney failed to properly calendar the adjourned trial date and failed to appear for the trial scheduled on December 3, 2013 at 2:00.' and 'Pursuant to MCR 2.612 ( C ), Plaintiff moves this court to relieve Plaintiff from the Order of Dismissal on the grounds of mistake, inadvertence, and excusable neglect'. Sigh. I am going to go to the hearing of course and intend on turning it into an impromptu MSJ, since they never have produced the bill of sale. Any words of wisdom?
  5. Hi gang, this is my next item on the agenda as I continue to battle Midland. Last week was my opposition to Midland's 'Motion to Vacate Judgement and Set Aside' (Look for that post elsewhere on the forum; just the fact that I am now preparing a Motion for Summary Disposition is a clue as to how last Friday's events turned out). The trial date is set for a few weeks down the road; in the meantime I am going to hit them with a MSJ (it's actually a MSD in Michigan). This'll be a two-parter; first comes the motion, then comes the brief. I followed the exact form that Plaintiff followed when they filed their own MSJ on me last August. DEFENDANT’S MOTION FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116 © (10) Now comes Defendant Beefer Real, Pro Se, for his Motion for Summary Disposition pursuant to MCR 2.116 © (10) states as follows: 1) That on or about June 20, 2013, Plaintiff filed his action, and Defendant was properly served. 2) The action filed by the Plaintiff was related to a credit card account that Plaintiff alleges belonged to the Defendant and was allegedly procured by Plaintiff from Chase Bank. 3) Defendant sent Request for Discovery via certified mail with return receipt to Plaintiff’s council on Xxxxxx xx, xxxx. Defendant received Plaintiff’s answers on or about Xxxxx xx, xxxx. 4) That Plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find that Defendant is indebted to the Plaintiff. 5) The Plaintiff has used hearsay statements in the pleadings of this case. 6) That an examination of the attached documentation originally provided by Plaintiff, along with Plaintiff’s responses to interrogatories during discovery, has left Plaintiff with a lack of standing. Without standing, the case cannot be ruled in Plaintiffs favor. WHEREFORE, Defendant respectfully requests that this Honorable Court grant judgement in Defendant’s favor and dismiss this suit with prejudice. Dated: Xxxxxx xx, xxxx _____________________________ Beefer Real
  6. Received a summons from a "mafia" type JDB. There is one document attached. A word document with a balance. No signature.. no affidavit no nothing. I don't even know if this is real. The Attorney's firm representing the client use 3 names. One of the names of the attorney's representing the "plaintiff/client" also owns the JDB firm listed under plaintiff. (it is a LLC and michigan offers LLC look-ups). In fact there was a collection licence revoked for this person under a defunct company name in the past leading me to ask the question does the plaintiff need to be licensed? If so where do we go look up the license? I am not sure how much to share in an open forum. Any suggestions would be helpful.
  7. Hey all! I'd like to hear your thoughts on tolling the sol in a fraud case. I want to make sure I am thinking outside of my own POV. Unifund committed various forms and acts of fraud in their case against me and the court. They finally withdrew their case and the fraud was abated. If I am correct the sol starts at the time of abatement, right? Thanks in advance!
  8. I'm just starting my reasearch here and would welcome any thoughts or advice on how to proceed. I was just served yesterday so I haven't filed an answer. The complaint consists of 6 paragraphs with a single exhibit. I see most people talk of affidavits, statements, bill of sale included with complaint, but I received nothing like that so this is all still a bit confusing to me. Back to studying bmc100's sticky... 1. Who is the named plaintiff in the suit? LVNV Funding, LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Weltman, Weinberg and Reis Co., LPA 3. How much are you being sued for? $637 4. Who is the original creditor? (if not the Plaintiff) HSBC 5. How do you know you are being sued? (You were served, right?) Served September 13 6. How were you served? (Mail, In person, Notice on door) Served in person at home 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Michigan, Jackson 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2010 11. What is the SOL on the debt? MI 6 years 12. What is the status of your case? Summons and Complaint just served yesterday 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? No 15. How long do you have to respond to the suit? 21 days 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 6 page copy of a card agreement brochure(Exhibit A), nothing else.
  9. And so the fun begins. Got served a complaint about 10 days ago. Still have 11 to answer. Been lurking here while putting together my answer to the complaint. Now I need some guidance as to how to proceed. I have read all of the topics in regards to AA and Michigan I could find here and they are great. I am trying to decide the best game plan. What I am thinking right now is to file a motion to dismiss in lieu of answer. This is intended to put them on notice I am going to fight. I would then file my answer with request for jury trial and counter-claim (still a work in progress). I will add it below, looking for any suggestions. Also would the counter-claims and request for jury trial send me out of district court to circuit or federal court? 1. Who is the named plaintiff in the suit? Asset Acceptance, LLC. 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) FULTON FRIEDMAN & GULLACE, LLP 3. How much are you being sued for? 3K and change 4. Who is the original creditor? (if not the Plaintiff) DELL FINANCIAL SERVICES / CIT ONLINE BANK 5. How do you know you are being sued? (You were served, right?) SERVED IN PERSON 6. How were you served? (Mail, In person, Notice on door) IN PERSON 7. Was the service legal as required by your state? YES 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Recieved notice from AA in July 2012 that they purchased account and demanded payment in full. Sent DV in July, 2012 by normal post (I know). No response from AA. Recieved letter from Fulton Friedman & Gullace LLC in October 2012. Sent DV in October (certified). Recieved response early December from FG&G listing very little information other than CO, OC, 4 digits of OC account number, open date, last payment date, claim balance, interest due, and states that "Additional documents relating to the reference account have been requested". Last contact was when I was served on 02/12/2013. 9. What state and county do you live in? Michigan 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Not sure if I ever did. They never gave me enough info to research. They claim last payment was 06/10/2009. Was opened on 04/20/2006 11. What is the SOL on the debt? To find out: 6 Years in Michigan 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). Served. Have about 11 days remaining to answer summons and complaint. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. 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. Yes. Sent one to AA at first notice. Sent second when recieved 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? VERIFIED COMPLAINT ACCOUNT STATED NOW COMES the Plaintiff, ASSET ACCEPTANCE, LLC, by its attorney, and for its Complaint against the above named Defendant(s), states to this Honorable Court as follows: The Defendant(s) resides within this court’s venue and venue is proper in this court. The amount in controversy is within this courts jurisdiction. The Defendant(s) has an agreement for a/an INSTALLMENT LOAN, originally with DELL FINANCIAL SERVICES/CIT ONLINE BANK. The Defendant(s) has defaulted in payments on the above mentioned account, said account being shown in the Affidavit. See Exhibit “A” (Affidavit) and “B” (Statement of Account not previously sent to Defendant). ASSET ACCEPTANCE, LLC purchased the account shown in the attached Exhibits “A” and “B” and was assigned all rights to the account in the normal course of business. ASSET ACCEPTANCE, LLC has notified the Defendant(s) of the above mentioned account and the Defendant(s) has failed to pay for same. There is presently due and owing over and above all legal counter-claims the sum of $3,XXX.XX which includes interest at the statutory rate. See Exhibits “A” and “B”. ASSET ACCEPTANCE, LLC requests Judgment for $3,XXX.XX plus interest, costs, statutory attorney fees, pursuant to MCL 600.2441.I declare under penalty of contempt of court that to the best of knowledge, information and belief that this is good ground to support the contents of this pleading. FULTON, FRIEDMAN & GULLACE, LLP THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT COLLECTOR. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. EXHIBIT “A” STATE OF MICHIGAN ) ) ss. COUNTY OF MACOMB ) AFFIDAVIT OF ACCOUNT I am an employee of ASSET ACCEPTANCE, LLC (“Plaintiff”), a DELWARE LIMITED LIABILITY COMPANY, and am competent to testify to the facts set forth in this affidavit. I am familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and maintains its business records pertaining to this account. These records are kept in the regular course of business and were created at or near the time of the event. To the best of my knowledge and belief and upon review of the records in my possession, [DEFENDANTS NAME] (“Defendant”) established an account with DELL FINANCIAL SERVICES / CIT ONLINE BANK herein under account number XXXXXXXXXXXXXXX-0025. That after establishing said account, Defendant(s) incurred charges and/or fees and/or interest upon said account. Defendant(s) defaulted on their payment obligations with regard to said account. Upon information and belief, Plaintiff’s predecessor(s)-in-interest performed all of the conditions of the contract required by said contract. Thereafter, Plaintiff purchased said account for value and is now the owner of said account. That as a result of Defendant(s) payment default, the Defendant(s) named herein is/are justly indebted to the Plaintiff in the amount of $3,XXX.XX together with interest at the statutory rate. Signed: GINA VINCI Notorized Dated 2nd November 2012. ============================== EXHIBIT "B" AA Logo/Letterhead Their account number 12-XXXXXX Original Creditor Account Number XXXXXXXXXXXXXXX-XX-0025 My Name My Address City, State, Zip Date Account Information November 2.2012 ASSET ACCEPTANCE LLC, A LIMITED LIABILITY COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELEWARE. ASSIGNEE OF DELL FINANCIAL SERVICES/CIT ONLINE BANK Purchase Date: 06/xx/2012 Charge off balance: $3,XXX.XX Statutory interest rate: 5% Date of last payment: 6/9/2009 This is a communication from a debt collector * Not previously mailed. ==================================================== If you are inquiring about a the best way to sue someone, you need to answer the following questions (as much as possible): 1. Who are you suing? ASSET ACCEPTANCE 2. How old is the debt? Opened 4/2006. Last payment reported 6/2009 3. If the person harrassing you about the debt is a collection agency, Is the debt being reported on your credit report? YES 4. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) This means you wrote or called Experian, Equifax and TransUnion. NO 5. Has the collection agency sent you a letter, called you on the phone? How did you learn about the collection? Recieved notice from AA in July 2012 that they purchased account and demanded payment in full. Sent DV in July, 2012 by normal post (I know). No response from AA. Recieved letter from Fulton Friedman & Gullace LLC in October 2012. Sent DV in October (certified). Recieved response early December from FG&G listing very little information other than CO, OC, 4 digits of OC account number, open date, last payment date, claim balance, interest due, and states that "Additional documents relating to the reference account have been requested". Last contact was when I was served on 02/12/2013. 6. What state are you in? MICHIGAN 7. What kind of debt is this? (credit car, auto loan, student loan). AA Claims it to be an INSTALLMENT LOAN which I think means it is an Open Account. 8. What kind of violations do you THINK the collection agency has committed? What section of the FDCPA do you think has been violated... Still researching this. Will be posting my answer to the complaint shortly which will have this listed. Also trying to see how to tie this against their consent decree with the Feds.
  10. Previous thread: http://www.creditinfocenter.com/community/topic/319874-two-cases-4-5-years-old-in-mi-back-in-court-help-needed/ So, I'm due back in court later this month. In the case where the jdb didn't show up to court, I received a phone call where I advised him to communicate with me through postal mail. He then sent me a "final notice" saying that they recently garnished my state tax return, and that they would be "conducting an investigation of your assets within the next 10 business days, after which this office may execute on assets you may have, garnish your income, or conduct a Judgment Creditor's Exam if necessary. Please note that any further legal action taken may result in additional expenses, thereby increasing your overall financial obligation." The letter said I had an unpaid balance of $394.77 The garnishment they filed said I had a balance of $464.65. I have to find my last paycheck of 2012, I'm not exactly sure how much they garnished, but for the year of 2013, they garnished $285.82, my tax return was about $75. All together, I believe I overpaid, then they claim that they're still owed almost $400!? I'm not too worried about them, as it seems they won't show up to court and it'll be a matter of getting my money back, but, any recommendations on what I should or can do? Second case, jdb's attorney here showed up to court, judgment was set aside, a week or two later I received a garnishment release form. On the form, it says "any amounts withheld by the garnishee on or after 4/3/13 shall be returned to the defendant and any further withholdings shall be discontinued. I was still garnished on 4/5 and 4/19 which made "my balance with them" zero and "no longer owing to them. I'm 99.99% sure this is illegal, but not sure if I should be contacting jdb or my employer about receiving the money back or how I would go about it, and if this could be used to countersue jdb, would be fantastic. Fast forward a month, I received two packages, about 3 weeks apart. First package: certificate of serviceall bills from oc starting with a zero balance. at the bottom of each bill, it says "this statement is a facsimile - not an original"two "bills of sale" the same as they put in the complaint. One of them, from jdb1 to jdb2 (the one I'm currently battling) even shows a faded court stamp dated "2010 MAR 23" it seems like they lost it and had to obtain a copy from the court."exhibit 1 -the accounts" an excel printout with everything but my info blacked out.That doesn't state the OC, or jdb1 but does contain a full account number."business records affidavit" signed by the notary public they used for all previous affidavits which I pointed out in my answer that she had an expired commission. She swears that she is a custodian of records, and it is notarized by someone with a current commission.Second package: a "dear clerk" notea "notice of hearing" page which states the date and time of the hearing.a "certificate of service""plaintiffs motion to strike answer and for summary disposition" signed by the attorney and not jdb. NOTE: it says "with the last payment by defendant on the account on 9/14/2009 (see account statement with closing date of 9/17/2007)" two different dates, wondering how that helps me.an affidavit, also signed by attorney and not jdb.copy of a cashiers check issued by my bank to them through a garnishment.copy of garnishment disclosure form to my employer"brief in support of plaintiffs motion to strike answer and for summary disposition, also signed by attorney. Second post contains my answer to their complaint, third post is their second package. Thanks ahead of time for your help!
  11. Greetings all, I'm a little new to both being sued and contributing to community forums, so please have mercy. I fear recent happenings are a little above my head, so here it goes. My fiance and I awoke excited to have what seemed like our first relaxing Sunday in a while. This excitement soon turned to confusion, however, as an early morning guest shattered these expectations with the delivery of "official legal documents." It turns out we had just been served with papers indicating impending civil action with a collection agency pursuing a previous credit account she had with a retail store, and choas has since ensued (we had received no prior communication, so one can imagine the surprised to now having a law suit in front of us). Now I am admittedly neither a lawyer nor any semblance of a legal services professional. I've spent the remainder of today (all day...) reading and researching amongst this site and others, and will do my best to provide what I've gathered are the pertinent facts and documents we have at our immediate disposal. Seeing as it's still Sunday, we have not yet responded or otherwise taken action reagarding what is now in our possesion, so (PLEASE!) any guidance and assitance is very much appreciated. As an endnote, I am in the process of starting a new job and we've been scraping by on one income for the past little while, so I fear legal fees are out of our realm at the moment and will be going this alone. Thank you kindly! ----------------------------------------- 1. Who is the named plaintiff in the suit? PORTFOLIO RECOVERY ASSOC., LLC ASSIGNEE FROM GE CAPITAL RETAIL BANK 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Mary Jane Elliott PC P32732 Attorney for Plaintiff Novi, MI 3. How much are you being sued for? Less than $1000 4. Who is the original creditor? (if not the Plaintiff) GE CAPITAL RETAIL BANK 5. How do you know you are being sued? (You were served, right?) In person delivery of Summons & Complaint and Affidavit documents 6. How were you served? (Mail, In person, Notice on door) In person 7. Was the service legal as required by your state? Yes* *The individual who served the papers only asked for my fiance's signature, and when asked about dating the document she was told only the signature was needed. I only realized this potential oversight after the fact... 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Michigan, Saginaw County 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) She believes more than a year, less than two years 11. What is the SOL on the debt? To find out: Six years in the State of Michigan 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). Thus far, to our knowledge, only suit served 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No, this is our first knowledge of collection agency pursuit 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. No 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? Response to the Summons & Complaint is required within 21 days. No other documents, other than accompanying affidavit, have been received. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. The only accompanying document was an affidavit from the Plaintiff claiming rights to the outlined outstanding debt. I have included the two page Summons & Complaint with attached Affidavit below. ------------------------------- SUMMONS AND COMPLAINT (Pg 1) (Plaintiff’s name) PORTFOLIO RECOVERY ASSOC., LLC ASSIGNEE FROM GE CAPITAL RETAIL BANK (Plaintiff’s attorney) MARY JANE M ELLIOTT P.C. BY: MARY JANE M. ELLIOTT P32732 Novi MI (Defendant’s name) JOE BLOW 123 DEFRAUD WAY SOMEWHERE MI SUMMONS – NOTICE TO THE DEFENDANT You are being sued. YOU HAVE 21 DAYS after receiving this summons to file a written answer with the court and serve a copy on the other party or take other lawful action with the court. If you do not answer or take other action within the time allowed, judgment may be entered against you for the relief demanded in the complaint.[issued: 5-7-13*] [This summons expires: 8-6-13] *Served on 5-19-13 COMPLAINT – General Civil Cases There is no other pending or resolved civil action arising out of the transaction or occurence as alleged in the Complaint SUMMONS AND COMPLAINT (Pg 2) PORTFOLIO RECOVERY ASSOC., LLC ASSIGNEE FROM GE CAPITAL RETAIL BANK (Plaintiff) vs. JOE BLOW (Defendant) -------------------------------------------------- Mary Jane Elliott PC P32732 Attorney for Plaintiff 24300 Karim Blvd Novi, MI 1. This cause of action arose within the jurisdiction of this Court in the County of XXXXXX. 2. Plaintiff's PORTFOLIO RECOVERY ASSOC., LLC predecessor in interest is GE CAPITAL RETAIL BANK. 3. Plaintiff assignor allowed Defendant to charge goods and or services on open account, and upon Defendant's promise to pay for same. 4. Plaintiff's Assignor sent statement on account number xxxxxxxxxxxxxxx to the Defendant who did not dispute the charges or object within a reasonable time. 5. Defendant has not paid the balance owing on the account, despite Plantiff and Paintiff's Assignor demands for payment. 6. Defendant's failure to pay has resulted in default on the account. 7. Plaintiff's assignor has completed performance and rendered an account stated; Affidavit attched. 8. Defendant is now justly indebted to Plaintiff over and above all legal counterclaims, in the amount of $1xxx.xx Plaintiff requests that this court enter judgement against Defendant in the amount of $1xxx.xx plus interest, cost and attorney fees. I declare that the complaint information and attached is true to the best of my knowledge. Date – April 16, 2013 Signature of attorney/plaintiff Subscribed and sworn before me 4-16-13, Oakland Michigan My commision expires 7-18-14 Signature of Deputy Clerk/Notary public AFFIDAVIT (attached) State of Virginia City of Norfolk ss. I, the undersigned, TYPED IN NAME, Custodian of Records, for Portfolio Recovery Associates, LLC hereby depose, affirm and state as follows: I am competent to testify to the matters contained herein. I am an authorized employee of Portfolio Recovery Associates, LLC, (“Account Assignee”) which is doing business at Riverside Commerce Center, 120 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representations and averments herein, and do so based upon a review of the business records of the Account Assignee and those records transferred to Account Assignee from GE CAPITAL RETAIL BANK/NATIONAL RETAIL STORE (“Account Seller”), which have become a part of and have integrated into Account Assignee’s business records, in the ordinary course of business. According to the business records, which are maintained in the ordinary course of business, the account, and all proceeds of the account are now owned by the Account Assignee, all of the Account Seller’s interest in such account having been sold, assigned and transferred by the Account Seller on DATE. Further, the Account Assignee has been assigned all of the Account Seller’s power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustment of said account, and the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever. According to the records transferred to the Account Assignee from Account Seller, and maintained in the ordinary course of business by the Account Assignee, there was due and payable from JOE BLOW (“Debtor and Co-Debtor”) to the Account Seller the sum of $1xxx.xx with the respect to account number ending in XXXX as of the date of DATE with there being no know un-credited payments, counterclaims or offsets against the said debt as of the date of the sale. According to the account records of said Account Assignee, after all know payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, Account Assignee claims the sum of $1xxx.xx as due and owing as of the date of this affidavit. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the Defendant is not on active military service of the United States. Portfolio Recovery Associates, LLC ROBO-SIGNATURE By: TYPED IN NAME, Custodian of Records Subscribed and sworn to before me on 3-8-2013 NOTARY SIGNATURE Notary Public NOTARY STAMP This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose
  12. CASE #1 TIMELINE OF EVENTS -Late December 2008: JDB submits complaint to court -Late January 2009: I was allegedly served with summons and complaint -Late February 2009: JDB is awarded judgment against me for a little north of $1000 -April 2009: an order to seize property Is granted by the court -Summer of 2009: I begin receiving multiple phone calls a day from JDB telling me that I owe them money. They told me that they would show up to my house with a Sheriff, seize my assets, and take my money from me if I didn’t pay them. I’m barely 20 at the time and realistically have no knowledge of the law on such matters and being the scared young adult, I ignore them. (side note: all calls are from the same number, sometimes being JDB, and other times being their scumbag attorney. Both have the same address, and same phone number. Also, the “collections manager” employed by JDB who swears in the affidavit that he is the “Keeper of Records” for JDB sent me a letter in April 2011 with his name and signature, with the attorney’s letterhead. I am almost confident this is a violation of both federal and state law, someone, please advise on this and what I can do as a possible countersuit for violation of such laws) -Calls stop in the winter of 2009 and being again in summer of 2010. Then stop in the winter, and begin again early 2011 all the while sending me periodic “settlement offers.” They also note in the letters that I should contact them to prevent legal action against me, even after they already had a judgment against me. -In early 2011, I get 8 calls in one day, and after threats to take my wages, I give in and agree to pay them. I ask for a letter stating the original creditor, amount due, and balance, which they provide. -Letter they send me references ELAN as OC, but all court documents state COMERICA. -I pay them monthly payments for about a year, and due to financial hardship, I stop. -December 2012: JDB begins garnishing my wages. -JDB is now paid off, and no further amount is due. -December 2012 is when I actually realized that they had a court judgment against me because my employer sent me a copy of the writ of garnishment. I go to the court, request the papers associated with the case, and file a motion to set aside default judgment. -Fast forward to last week, JDB, because they have “their” money, doesn’t show up, and judge sets aside the default judgment. Judge tells me to file responsive pleadings within 14 days. HERE IS THE ORIGINIAL COMPLAINT: JDB through their scumbag attorney V MrDearbon 1. The amount in controversy is within the jurisdiction of this court and venue is proper. 2. Defendant entered into a Credit Card Agreement with Plaintiff’s assignor, COMERICA 3. Plaintiff and/or its assignor completed performance under the terms and conditions of the agreement. 4. Defendant has defaulted under the terms and conditions of the contract by failing to pay as promised. 5. There is a presently due and owing to Plaintiff in the sum of $9xx.xx WHEREFORE, Plaintiff prays for the judgment in the amount of $9xx.xx, plus costs, interest and attorney fees. HERE IS THE AFFIDAVIT OF ACCOUNT I, John Doe, being duly sworn , depose and say that I am keeper of records for JDB, and if called as a witness can testify competently to facts contained herein; that the account of MrDearborn, is taken from the books and records of the corporation and that, within my knowledge the balance of $9xx.xx, as of late 2008 (actual date omitted), shown due is true and correct, and that said balance is justly and owing to JDB and that there is no offsets or counterclaims against the same. This, to me, seems to be the easier of the two. Nothing else is attached to the complaint, not even an attempt at a BOS. Here is my ANSWER: 1. Defendant neither admits nor denies the allegations contained in paragraph 1 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 2. Denied. Plaintiff has failed to submit such evidence of “credit card agreement.” 3. Denied. Plaintiff has failed to submit such evidence of “terms and conditions of agreement.” 4. Denied. Plaintiff has failed to submit such evidence of “terms and conditions of contract.” 5. Denied. Plaintiff has failed to submit such evidence of such debt owed. Furthermore, Plaintiff has failed to submit evidence of assignment of debt. Please, tweak this if needed. This is my first time. Also, I am going to need help filing an affidavit as I do not know how to. Should I also file a motion to dismiss? How do I write one? A big thank you in advance! ------------ CASE #2 TIMELINE OF EVENTS -March 2010: JDB submits complaint to court -April 2010: I was allegedly served with summons and complaint (process server dates proof of service as a Saturday, in actuality, it was a Sunday, also, gave a completely different description of me than he did in Case #1) -June 2010: JDB is awarded judgment against me for a little north of $1000 -January 2012: JBD seizes money from my bank account. It’s not a primary account, so it goes unnoticed until about March. When noticed, I contacted JDBs scumbag attorney to ask what right they had to take the funds. They said they had a court judgment against me, and wanted to prevent further inconvenience and wanted to set up a payment plan. I declined and said that I wanted to see paperwork and if legit, I would sign an agreement and an amount. Lady on the phone asked if $100 was ok, I said I won’t agree to anything until they sent me some paperwork. At the same time, they requested all information from my bank with a subpoena. Lo and behold, 2 weeks later, $100 from my account goes missing. They took the payment through ACH, without me agreeing to it. I still have the original paper asking for my signature. I later closed the account, and due to life, just ignored what had happened. -January 2013: JDB begins garnishing my wages. -I go to the court, request the papers associated with the case, and file a motion to set aside default judgment. -Fast forward to last week, JDBs scumbag attorney shows up to court. Court officer advises me to have a private conversation with him in the hallway. Attorney tells me I have a small amount left, and that he would consider it paid in full, I decline and tell him I want my day in court. He shows me a statement, not sure if from checking account or CC, but CHASE, but he says there are two ACHs to them, so more than likely checking. Either way, I tell him no, I want my day in court. Judge grants my motion to set aside default judgment. Attorney looks furious. His dad runs the firm, and is probably going to chew his a$$ out. Judge tells me to file responsive pleadings within 14 days. An amount is still due to be garnished from my wages, please explain my options considering the judgment was set aside. Attached are pictures of Complaint and Affidavit. Here is my answer: DEFENDANT’S ANSWER Now comes the Defendant, MrDearborn (hereinafter referred to as “Defendant”), in Pro Per, and states the following for his Answer to Plaintiff’s Complaint: GENERAL ALLEGATIONS 1. Defendant neither admits nor denies the allegations contained in paragraph 1 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 2. Defendant neither admits nor denies the allegations contained in paragraph 2 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 3. Denied. Plaintiff has failed to submit such proof of use of alleged credit card. 4. Denied. Defendant has no such possession of alleged account statements, terms and conditions of the contract and the application or solicitation for credit. 5. Defendant neither admits nor denies the allegations contained in paragraph 5 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 6. Denied. “Assignment must clearly establish that Respondent’s [the Debtor’s] account was included in the assignment. A general assignment of accounts will not satisfy this standard and the full chain of valid assignments must be provided, beginning with the assignor where the debt originated and concluding with the Petitioner [i.e., the assignee-creditor].” MBNA America Bank, N.A. v Nelson, 15 Misc 3d 1148;841 NYS2d 826; 2007 WL 1704618 AND Bullock v Worldwide Asset Purchasing, LLC, 2008 WL 3159921. 7. Denied. Defendant realleges the same as paragraph 6. 8. Denied. Defendant realleges the same as paragraph 6. 9. Denied. Defendant realleges the same as paragraph 6. 10. Defendant neither admits nor denies the allegations contained in paragraph 10 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. COUNT I – ACCOUNT STATED 11. Defendant restates and realleges his answers to paragraphs 1 through 10 of Plaintiff’s Complaint as though fully set forth herein. 12. Defendant neither admits nor denies the allegations contained in paragraph 12 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 13. Defendant neither admits nor denies the allegations contained in paragraph 13 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. Furthermore, “Exhibit ‘A’” of Plaintiff’s Complaint is not sufficient evidence of a contract. 14. Denied. No such evidence of use of alleged credit card or any such monthly statements has been documented in Plaintiff’s Complaint.. Defendant realleges same as paragraph 6. 15. Denied. No such evidence of a “terms of contract” has been documented in Plaintiff’s Complaint. 16. Denied. No such evidence of a “terms of agreement” has been documented in Plaintiff’s Complaint. Furthermore, “Exhibit ‘A’” of Plaintiff’s Complaint is not sufficient evidence of an agreement. 17. Denied. Defendant realleges same as paragraph 6. 18. Denied. Defendant has no such possession of alleged account statements, terms and conditions of the contract, or the application for credit. 19. Denied. No such evidence of a “terms of the agreement” has been documented in Plaintiff’s Complaint. Furthermore, Plaintiff has no right to declare any balance due without clearly establishing that said account was included in the assignment. MBNA America Bank, N.A. v Nelson, 15 Misc 3d 1148;841 NYS2d 826; 2007 WL 1704618 AND Bullock v Worldwide Asset Purchasing, LLC, 2008 WL 3159921. COUNT II – COMMON LAW ACCOUNT STATED 20. Defendant restates and realleges his answers to paragraphs 1 through 19 of Plaintiff’s Complaint as though fully set forth herein. 21. Defendant neither admits nor denies the allegations contained in paragraph 21 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. COUNT III – BREACH OF CONTRACT 22. Defendant restates and realleges his answers to paragraphs 1 through 21 of Plaintiff’s Complaint as though fully set forth herein. 23. Defendant neither admits nor denies the allegations contained in paragraph 23 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 24. Denied. No such evidence of use of the alleged credit card has been documented in Plaintiff’s Complaint. Furthermore, Defendant has no such possession of “the Contract” or “terms and conditions.” 25. Denied. No such evidence of alleged monthly bills, monthly payment due, or total balance due has been documented in Plaintiff’s Complaint. 26. Denied. No such evidence of alleged contract has been documented in Plaintiff’s Complaint. Furthermore, Defendant realleges same as paragraph 6. 27. Denied. Defendant realleges same as paragraph 6. COUNT IV – MONEY HAD AND RECEIVED AND/OR MONEY PAID 28. Defendant restates and realleges his answers to paragraphs 1 through 27 of Plaintiff’s Complaint as though fully set forth herein. 29. Defendant neither admits nor denies the allegations contained in paragraph 29 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 30. Denied. No such evidence of use of the alleged credit card has been documented in Plaintiff’s Complaint. 31. Denied. Defendant realleges same as paragraph 6. COUNT V – UNAUTHORIZED USE OF CREDIT CARD AND RELIANCE ON APPARENT IR ISTENSIBLE AUTHORITY AS NEGLIGENT WAIVER OF RIGHT TO DISPUTE THE BALANCE DUE 32. Defendant restates and realleges his answers to paragraphs 1 through 31 of Plaintiff’s Complaint as though fully set herein. 33. Denied. No such evidence of “contract terms and conditions” has been documented in Plaintiff’s Complaint. 34. Defendant neither admits nor denies the allegations contained in paragraph 34 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 35. Defendant neither admits nor denies the allegations contained in paragraph 35 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. 36. Defendant neither admits nor denies the allegations contained in paragraph 36 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. CONDITIONS PRECEDENT 37. Denied. Defendant realleges same as paragraph 6. ATTORNEY FEES 38. Denied. No such evidence of “terms of the cardholder agreement” has been documented in Plaintiff’s Complaint. WHEREFORE, Defendant respectfully requests that this Court enter a judgment in favor of Defendant and against Plaintiff, dismissing Plaintiff’s Complaint against Defendant with prejudice, and awarding Defendant’s monies be returned and any other relief this Court deems appropriate. I need help responding to the affidavit, and should I also file a motion to dismiss along with the answer? How would I do so? Again, thanks in advance guys! Any help will be appreciated.