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I provided the State of Michigan court (e.g., state district court) with an answer to a complaint brought against me by Midland Credit Management LLC. The answer to the complaint also stated my affirmative defenses which were: (1) Stale Affidavit pursuant to MCL 600.2145. I am relying on this affirmative defense because the affidavits provided by the plaintiff were over 200 days old which is beyond the 10 day timeframe in the state of Michigan pursuant to MCL 600.2145. (2) Arbitration Agreement Bars Bringing Suit. I am relying on this affirmative defense because after looking over the credit card agreement from the card issuer who sold the debt to Midland Credit Management LLC I noticed in the card agreement that there is an arbitration provision. I provided a copy of this agreement via Exhibit along with the answer to the complaint and affirmative defenses. (3) Failure to Establish a Claim for Breach of Contract. I am now waiting to have a pretrial conference in a week and wanted to know which of of the following should I file: (#1) Motion to Dismiss [or] (#2) Motion for Summary Judgment? The reason I am confused is because I read this https://get.courtroom5.com/the-motion-to-dismiss-or-the-motion-for-summary-judgment-know-the-difference/ article about the differences between motions to dismiss versus motions for summary judgment and when it is best to use one versus the other and I am in need of further clarification so that I can prepare things.
Greetings, A Law firm named Berndt & Associates representing Jefferson Capital Systems LLC, whom bought the debt from Fifth Third Bank sent me a letter the end of this past summer trying to collect a credit card debt. I sent the firm an email provided on the law firm's website (email@example.com) stating that I can not afford to pay them, due to me having health issues, barely able to work part time and I just scrape by month to month (the letter was a couple of paragraphs and more explanatory). I sent it in text form as well as an attached PDF. I never received any type of reply or letter after. Fast forward to this past week, about 5 months later and I received a letter in the mail with a court summons, with Second typed in under it, I have attached a picture of the top of the form. Berndt & Associates also filed a motion for a second summon s with a motion stating "Defendant evading service." in the 2nd box. Also included was a complaint with 7 lines as well as stating: WHEREFORE, Plaintiff prays for Judgment against Defendant(s) in the sum of...$ There was also an ORDER REGARDING ALTERNATE SERVICE asking for electronic certified mail-RRR. There was a bill of sale from Fifth Third to Jefferson Capital, as well as a few pages of mostly redacted sales document with my information included. The next day I had a note in my mail box that missed a certified mail that was to be signed for, assuming from them, since it is from the same city as the law office. I never received a First summons, I'm confused as to why I received a Second alleged summons though. I have a record of the email that I sent to Berndt & Associates , can I present that as evidence? Also, can I ask to see the received email from their end, since I sent it to the email provided on the law firm's website? With this presented, does this mean that they are providing false information on the summons stating "defendant evading service"? I have had a debt collection lawyer,use dirty tactics in the past and ultimately was involved in 2 class action lawsuits against them, but that was after they ruined my life for a bit. I don't want to let this happen again. Can you please help me?
Hello All - Anyway ever have a Bank fail to submit an Affidavit in the Complaint and Motion for Summary Judgement and then just magically produce a new one dated that week and served that day to Defendent in Court? I did. I have been watching this forum for help as I have decided to fight BIG BANK Discover over a credit card debt. I think I have zeroed in on something but need some case law. 1) They filed the Complaint in October, 2014 using an account stated theory with 1 statement attached for a 10 year account. 2) I filed an answer but not an affidavit. I didn't know that I needed to. But I did find some case law disputing that, but the REAL gangbuster is they neither did they. 3) Then they moved for Sumary Disposition, and I responded with genuine issues of material fact, but in the Motion, they explicitly said twice that they had properly filed and Affidavit to the Complaint and that it was also attached to this Motion. Yet, their exhibit summary did not contain it listed and it wasn't there. 4) The Judge offered them two weeks, and the lawyer shot back one. This was on a Friday when on that next Monday both Michigan and Ohio were shut down, including Courts due to a blizzard. The next Friday was the new hearing. I amended my Response with more time and served them on Wednedsay. On Thursday I went to the court to see if they filed anything yet, and they had filed an Affadavit DATED that previous Monday February 2nd, 2015 not October 2014 when they filed the Complaint. It was the standard Robo Affidavit where Discover Bank has its factory in Franklin Ohio by an Abigail Paton of Discover Financial Products (4 entities removed from Discover Financial Services with which the alleged contract was made). I googled and saw Ms. Patton has signed Affidavits as far away as SanDiego. 5) I prepared a Motion to strike that night. Plaintiffs waited to serve me until the actual hearing, and I served them back my pre-paid Motion. Their lawyer got out his law book and started fliiping through it. I asked the Judge to Move to Strike, and he said he would Strike but then asked the Plaintiff if they would just re-file again and he said yes, so the judge changed his mind and said he would give me more time. I said I didn't need it but he seemed like he wanted my motion in writing. I pointed out that the affidavit they neglected to submit with the Complaint affected their account stated theory, and they have failed to produce 4 years of statements, an orginal agreement with terms on it, so there is no way to determine the amount. The six years I did get had 2 purchases totoalling $700 yet I paid $15,000 (or 1700% interest) as far as what they could prove. He "gave me" 2 more weeks but their lawyer was too busy so it ended up being six weeks. QUESTION: Can the Bank claim they filed an affidavit with a Complaint dated in October 2014 and then again in a January 2015 Motion to dismiss and then when compelled to produce the Affidavit because I showed up (unlike 90% who don't bother) and produce an Affidavit dated the next business day (Monday - blizzard Day) 2015 and use it like it just fell behind a file cabinet and they found it? That would certainly make it cheaper for Banks to eliminate the paperwork until someone demands it. You can't swear in legal proceedings that you did something - have someone with knowledge review your records (even though sehe failed to attach them as required) before filing the Complaint, and wait unti the second hearing for a Summay Disposition to creat a new Affidavit. I know there is a problem there, but can't find the Michigan law or case law to cite for the next hearing. Please help - you scholare are fabulous!