Asset Suing, SOL, Account Stated questions...

[BraveToaster]

Okay, this is my last lawsuit thread. I'm keeping them separate so as not to confuse the cases. This is the Asset suit against my SO.

1. Who is suing you? Asset

2. For how much? 1K

3. Who is the original creditor? Sears

4. How do you know you are being sued? Personally served

5. How were you served? Were you served? Personally served

6. What was your correspondence (if any) with the people suing you before you think you were being sued? Asset sent a couple of letters asking for settlement, then sued.

7. Where do you live? Michigan

8. When is the last time you paid on this account? Unknown. Perhaps 2001.

9. What is the status of your case (if anything has been opened)? Case is filed and awaiting answer, due in 1 week.

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? If not, don't bother doing this now. No

12. Does your summons require a response? Their Complaint reads as follows:

Verified Complaint

Account Stated

1. That the Defendant resides within the court venue

2. That the amount in controversy is within this court's jurisdiction

3. That the Defendant had an agreemnet for A CREDIT CARD, originally with SEARS

4. That the Defendant has defaulted in payments on the above mentioned account, said account being shown in the attached, marked Exhibit "A" and made a part hereof by reference

5. That the Plaintiff purchased the accont shown in Exhibit "A" and was assigned all rights to the account in the normal course of business.

6. That the Plaintiff has made demand but the Defendant refused to pay and continues to refuse to pay

7. That there is presently due and owing over and above all legal counter-claims the sume of $1,XXX.XX.

8. That the Plaintiff requests Judgment for $1,XXX.XX plus interest, costs and attorney fees.

I declare under penalty of contempt of court that to the best of my knowledge, information and belief that this is good ground to supprt the contents of this pleading.

13. What evidence did they send with the summons? The following affidavit is attached as Exhibit A:

I hereby certify and affirm that, I, ATTORNEY FROM HELL, am the Legal Collections Manager of Asset Acceptance LLC, blah, blah...

I further state that teh said company has purchased and is the owner of a claim against, MY SIGNIFICANT OTHER, Account number XXXXXXX, originally with SEARS, and the amount of $1,XXX.XX is now due and owing with pre-judgment interest continuing to acrue at the rate of 5.00%

I further state that there are amounts due and owing on this account.

I further state that the business records of this account received at the time of purchase have been reviewed and the information contained herein was obtained from said business records.

I further certify that I am duly qualified and competent to testify to the matters states herein, and authorized to make this Affadavit and if called as a witness would testify thereto.

Also attached is what looks like a statement on Asset letterhead showing an account number, stating that $1k is owed, the date they purchased it (6/06, FYI they bought it from LVNV, not Sears) and a date of delinquency (8/02, which I don't think is anywhere near correct).

14. What is the SOL on the debt? Michigan SOL is 6 years, but I have read several times that the MI SOL for store cards is covered under MI UCC and is 4 years.

So, obviously,my first question is whether I'm understanding the Michigan SOL on store cards correctly? I've read the law several times and want to be able to understand exactly why, as I've read, a store card is 4 years and not 6 in case I'm questioned about it in court.

If it is indeed 4 years, well, yay.

Next, I understand this Affidavit is considered hearsay. Michigan law seems to say that you must counter an Affidavit for an Account Stated with an Affidavit of your own. However, I've seen in a least one other thread in this forum (also involving someone in Mich.) with opinions stating that you don't need to counter with your own Affidavit.

I'm also trying very hard to grasp the concept of Account Stated, anyway. We've never received any statements from Asset (until the one they printed with the Summons).

Anyway, I have a bunch of defenses I can throw at them, I'm just trying to understand the Account Stated part, because it is new to me.

I will be filing Counter-Claims against them. They have several violations on the TL of my SO's credit report. I'm hopeful I can make Asset go away. Last year, I simply complained to the Mich. AG about their TL violations on another account and they went "poof!"

Thank you in advance for your help!

[SOC]

Sorry i missed this thread. Is this an issue? Be carefull when dealing with ASSET. I am waiting to take these jokers on myself. I have even sent them a come get me letter with a copy of the collection letter they sent me. But in Mi these guys try a lot of stuff.

[LadynRed]

You can try attacking that affidavit - the so-called business records they claim to have are next to NOTHING, they don't get much of anything when they buy portfolios of bad debt and it is certainly NOT enough to give a full history of the account. In order for an affidavit to be worth the paper it's written on, it has to come from someone who has FIRST HAND KNOWLEDGE of the account - and the only one who has THAT info is SEARS !

Affidavits are hearsay, basically, and you can attack them as such. ASSet and others keep trying this 'account stated' BS but it is disputable.

You need to check your wife's credit reports, somewhere on there it should have the date of last activity or a charge-off date from Sears.

[hannah]

In Michigan, an "account stated means a balance struck between the parties on a settlement; and, where a plaintiff is able to show that the mutual dealings which have occurred between two parties have been adjusted, settled, and a balance struck, the law implies a promise to pay that balance. Watkins v Ford, 69 Mich 357, 361; 37 NW 300 (1888)."

"An account stated consists of a “balance struck between the parties on a settlement . . . .” Keywell & Rosenfeld v Bithell, 254 Mich App 300, 331; 657 NW2d 759 (2002), citing Watkins v Ford, 69 Mich 357, 361; 37 NW 300 (1888). “[W]here a plaintiff is able to show that the mutual dealings which have occurred between two parties have been adjusted, settled, and a balance struck, the law implies a promise to pay that balance.” Id. In Kaunitz v Wheeler, 344 Mich 181, 185; 73 NW2d 263 (1955), quoting from White v Campbell, 25 Mich 463, 468 (1872), the Michigan Supreme Court explained as follows: "The conversion of an open account into an account stated, is an operation by which the parties assent to the sum as the correct balance due from one to the other; and whether this operation has been performed or not, in any instance, must depend upon the facts. That it had taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from that. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account. [Emphasis in original.]"

An "account stated" lawsuit won't fly if there is no agreement between the parties involved. If there is no evidence that defendant indicated its agreement with the amounts plaintiff submitted then there is no account stated. But if sued on "account stated" there are certain actions you must take as there are some cases where an account stated stood in Michigan because the defendant did not dispute the amount in a timely manner nor did so in the correct manner. Read how below you must dispute and the law concerning the account stated action.

Michigan Compiled Laws sets out that:

MCLS § 600.2145 (2006)

MCL § 600.2145 § 600.2145.

Open account or account stated; proof, counterclaim.

Sec. 2145. In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.

HISTORY: Act 236, 1961, p 418; by § 9911 eff January 1, 1963.

Pub Acts 1961, No. 236, Ch. 21, § 2145, by § 9911 eff January 1, 1963.

Prior codification:

Pub Acts 1867, No. 112, § 1; Pub Acts 1871, No. 165, eff July 18, 1871; CL 1871, § 5954; Pub Acts 1879, No. 222, eff August 30, 1879; 1881, No. 272, eff September 10, 1881; How § 7525; CL 1897, § 10191; Pub Acts 1915, No. 314, Ch. XVII, § 52; CL 1948, § 617.52.

NOTES:

Editor's notes:

See Editor's notes at act heading.

LEXIS Publishing Michigan analytical references:

Michigan Law and Practice, Payment § 51

ALR notes:

Account stated based upon check or note tendered in payment of debt, 46 ALR3d 1325.

CASE NOTES

1. Construction and effect.

2. Proof of account other than by affidavit.

1. Construction and effect.

Regarding a supplier's counterclaim against a builder to recover the amount charged on an account opened by an embezzling employee of the builder, the supplier's affidavit of account stated under MCL § 600.2145 did not and could not create a genuine issue of material fact as to the scope of the agency relationship between a builder and its employee because a finding of apparent authority was a prerequisite to a finding that an account stated was created. Echelon Homes, L.L.C. v Carter Lumber Co. (2004) 261 Mich App 434, 683 NW2d 171.

Provision of this section declaring plaintiff's affidavit of amount due on account to be deemed prima facie evidence of amount due where plaintiff in action to recover amount due on open account or account stated serves upon defendant, in addition to copy of complaint, an affidavit of amount due on account and a copy of account, was not applicable to render plaintiff's affidavit prima facie evidence of indebtedness where, although defendants failed to file affidavit of denial, plaintiff did not comply with such provision and file copy of account. Wilson Leasing Co. v Seaway Pharmacal Corp. (1974) 53 Mich App 359, 220 NW2d 83, 14 UCCRS 1483.

2. Proof of account other than by affidavit.

Absence of evidence establishing continued course of dealing, or other circumstances suggesting balance struck required for account stated, precluded establishing liability upon accounts stated merely on proof of billing and accounts receivable ledger in action for payment for replacement parts for crane sold by plaintiffs to defendant. R. G. Moeller Co. v Van Kampen Constr. Co. (1975) 57 Mich App 308, 225 NW2d 742, 16 UCCRS 706.

That said, since ASSet purchased from LVNV, you want to attack the chain of assignment in the ownership of the account. More on this later.

Here is an attorney website that does a lot of consumer litigating. There is a lot of good information here on ASSet.