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I'm being sued by Pipestone Financial, LLC


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Please help with next step.

Thanks in advance.

1. Who is suing you? Pipestone Financial, LLC, Assignee of Pipestone Financial, LLC C/O Plaintiff’s Attorney

2. For how much? $7,241.43 plus $568.98 interest costs and attorney fees.

3. Who is the original creditor? Chase Manhattan Bank

4. How do you know you are being sued? I received Summons and Complaint with an Affidavit attached

5. How were you served? Someone drove up gave my brother the papers while he was in the yard and walked away Were you served?

6. What was your correspondence (if any) with the people suing you before you think you were being sued? I have not heard of this company until I was being sued. Never received any mail or communication before the lawsuit.

7. Where do you live? Michigan

8. When is the last time you paid on this account? 2002

9. What is the status of your case (if anything has been opened)? I have filed the Answers, Defenses and Counter claims. The Plaintiffs attorney then filed a motion to strike for failure to comply with MCR 2.111 (B)(1)

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? No

12. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

Here are the Answers, Defenses and Counterclaims

Defendants, appearing pro se, for its reply to the Complaint of Pipestone Financial, LLC, Assignee of Pipestone Financial, LLC, c/o PLAINTIFF'S ATTORNEY states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. In response to paragraph #1, the Complaint states legal conclusions to which no response is necessary. However to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof.

2. In response to paragraph #2, the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein and on that basis generally and specifically denies the allegations contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

3. In response to paragraph #3, to the extent a response is required, defendants are at this time without knowledge or information sufficient to form a belief as to the truth of the allegations contained therein and on that basis generally and specifically denies the allegation contained therein and leaves the Plaintiff to provide proof. Defendant’s demands strict proof.

DEFENSES

As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Second Defense

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Third Defense

Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

As and for a Fourth Defense

Defendant claims a Failure of Consideration as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Fifth Defense

Plaintiff's alleged damages are limited to real or actual damages only.

As and for a Sixth Defense

Defendant claims Lack of Privities as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

As and for a Seventh Defense

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

As and for an Eighth Defense

Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

As and for a Ninth Defense

Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

As and for a Tenth Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

As and for an Eleventh Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

As and for a Twelfth Defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

As and for an Thirteenth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

As and for a Fourteenth Defense

Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements.

As and for a Fifteenth Defense

Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppels, specifically Estoppels in Pais.

As and for a Sixteenth Defense

Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

As and for a Seventeenth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

As and for an Eighteenth Defense

Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

As and for a Nineteenth Defense

Plaintiff has no Fiduciary Duty.

As and for a Twentieth Defense

Plaintiff has failed to name all necessary parties.

As and for a Twenty-first Defense

Plaintiff's alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control.

As and for a Twenty-second Defense

Plaintiff's alleged damages are the result of acts or omissions committed by the Plaintiff.

As and for a Twenty-third Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in unjust Enrichment as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for a Twenty-fourth Defense

Plaintiff's alleged damages are limited to real or actual damages only.

As and for a Twenty-fifth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIMS

Now Therefore, Defendant Prays For The Following Relief:

1. Wherefore, as the FDCPA provides for statutory damages, Defendant(s)requests judgment against the Plaintiff in the amount of $1000.00 per violation plus cost for all actions that were taken by the Plaintiff.

2. Defendant(s) request that this lawsuit be dismissed and that a judgment be entered against the plaintiff for any counter-claims, costs, or attorney fees.

3. That any and all contracts having balances owed to the Plaintiff by the Defendant(s) be declared null and void.

Plaintiff Attorney Filed Motion to Strike Counterclaim

Now comes the Plaintiff, PIPESTONE FINANCIAL, LLC, By and through their attorney, and herby state for their Motion to Strike Counter claim as follows:

1. This matter comes before the Court on Plaintiff's Complaint.

2. Defendant filed an Answer, Affirmative Defenses and a Counterclaim on October 20, 2005.

3. Defendant's Counterclaim fails to sufficiently stat facts as required by MCR 2.111 (B)(1).

4. That Defendant's counterclaim fails to state a claim upon which relief may be granted.

WHEREFORE Plantiff requests this Honorable Court strike Defendant's Counterclaim and award costs and reasonable attorney fees for having to bring this Motion. Dated October 24, 2005

Sorry for the long post

What is my next step? Thanks

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I see you beating around the bush, but no direct attack on the issues. Instead of being fancy, you need to be direct to the point. I could have answered that in two or three paragraphs and it would have been more effective. I would file an amended pleading, substantiate your allegations, and for crying out loud, Keep It Simple, Silly!

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well, if you have an alleged FDCPA violation, you need to state the facts. You haven't done so. I'm surprised they didn't move to strike all those defenses, half of which, imo, don't help you at all.

Thank you for your comments Recovering Attorney.....I will be looking into amending my defenses which ones should I change

I see you beating around the bush, but no direct attack on the issues. Instead of being fancy, you need to be direct to the point. I could have answered that in two or three paragraphs and it would have been more effective. I would file an amended pleading, substantiate your allegations, and for crying out loud, Keep It Simple, Silly!

Thanks Equaliser for responding to my post.....would you please give me an example of what you mean...thanks in advance.

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Briefly,

ANSWER

1) The Defendant denies all allegations of the complaint.

2) The Defendant denies the bill is valid.

3) The Defendant challenges the amount of the bill.

4) The Defendant challeges the authority of the plaintiff's attorney and demands proof that the attorney is licensed in this state, and has a contract with the plaintiff.

CAUSE OF ACTION

5) The Defendant alleges that the plaintiff and his attorneys are in violation of (Cite USC Stat.) of the FDPCA on the grounds that (describe actual proof of violation).

COUNTERCLAIM

6) WHEREFORE, the Defendant prays the court for $1,000 in damages according to (citation) of the FDCPA, along with court costs and expenses and whatever else the court deems fair and equitable.

Judges hate B.S., so I can guarentee you've already ticked your judge off. You are not a lawyer or a paralegal. It's like giving an ultralight pilot an F-22 Raptor and ordering him to dogfight a pilot of the Chinese Air Force. Ain't going to happen! You have to be like a guerilla fighter and keep your tactics simple and straight to the point. All that other crap means squat. And be sure to cite the appropriate statutes and case law.

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To the defenses Equaliser offers, I would add:

On information and belief, plaintiff lacks the legal capacity to maintain this action.

This action is barred by the applicable statute of frauds

On the counterclaim, after you set for the facts of your FDCPA claim, add the phrase " and the defendant has suffered damage thereby"

** I would check your Michigan statutes. If you have a mini-FDCPA, the relief might be better than the feds, and it may be another point of leverage.

And for relief, I would style it as follows:

Wherefore, defendant asks the court for judgment:

a. dismissing the complaint herein;

b. in favor of the defendant on the counterclaim for actual and/or statutory damages:

c. the costs and disbursements of this action; and

d. such other, different and further relief as the Court finds proper.

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  • 3 months later...

Case Update

Received notice from 36th district court of Pending Case Evaluation:

State of Michigan

36th District Court

Notice To Litigants

Pending Case Evaluation

Pursuant to Administrative Order of the 36th District Court, all general civil cases in which the money damages exceeds $5000.00 are to be mediated under Michigan Court Rule (Case Evaluation) 2.403.

The parties will receive notification of the Case Evaluation and general information regarding this process from the court's designated Case Evaluation Clerk or the Detroit Metropolitan Bar Association. Notice of hearing date will come directly from Detroit Metropolitan Bar Association to Parties approximately 45 days after an Answer to the compliantis filed with the court.

Case sent to DMBA December 15, 2005.....Robert Smith Mediation Clerk

Then it looks like the plaintiff's attorney entered a Request for Default Judgement for failure to appear in court on January 31, 2006 unless a motion to set aside default in 21 days is filed. How can they do this?

On February 15th received the Court Case Evaluation Package from the Detroit Metropolitan Bar Association and the Hearing is set for April 5th 2006. How can they file for default Judgement when the case is not scheduled until 2 months from now?

Any comments will be greatly appreciated.

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