Spouse as Co-defendant, is it worth fighting over? Michigan

[FightBackNow]

When husband and wife are being sued by a JDB and one spouse has had no association with the account (perhaps as an additional user with no signatures or original application available) is there a worthwhile legal strategy to fight in order get one party off the complaint? In this case the spouse did not use the card and ALL payments were from a bank account which was titled only in the defendant spouses name.

I'm thinking about this for the following reasons:

- Additional legal wrangling creates more work for the plaintiff.

- Creates a fall back parachute in case things go bad and protecting assets becomes a factor.

I've already determined that Michigan is not a community property state. In a civil suit is it possible in some cases that one spouse might not necessarily liable for the other spouse's debt, but they are named in the complaint? Please advise.......

Edited August 5, 2010 by FightBackNow

[jq26]

It is very important- here is why. If a judgment should result, in a tenancy by the entirety state (TBE), all TBE property is exempt from a judgment of either the husband or the wife. However, there is no TBE exemption for a judgment against both spouses.

In other words, in many states there is a strong presumption that anything jointly titled by H&W is TBE property even if the title doesn't say so. This is done by statute. And if W has a judgment OR H has a judgment, then all property owned by H&W is exempt. But if the judgment is against H&W together, then H&W property is now on the line.

So the creditor was smart. They know this and are looking to get a joint judgment so they can go after anything held jointly.

Google "tenancy by the entirety in Michigan". There should be a set of statutes that spell it out.

[OZZIE69]

It appears that the creditor obviously knows the law. I thought that if spouse is on card as sole individual that the other spouse could not be held liable. What can this person do to get removed from suit since debt is only in spouses name? I am in MI and may be in the same predictiment in the near future.

[FightBackNow]

It is very important- here is why. If a judgment should result, in a tenancy by the entirety state (TBE), all TBE property is exempt from a judgment of either the husband or the wife. However, there is no TBE exemption for a judgment against both spouses.

In other words, in many states there is a strong presumption that anything jointly titled by H&W is TBE property even if the title doesn't say so. This is done by statute. And if W has a judgment OR H has a judgment, then all property owned by H&W is exempt. But if the judgment is against H&W together, then H&W property is now on the line.

So the creditor was smart. They know this and are looking to get a joint judgment so they can go after anything held jointly.

Google "tenancy by the entirety in Michigan". There should be a set of statutes that spell it out.

Excellent points, thank you jq26. Now the question is how and where does one go about challenging the complaint against both spouses instead of the primary only? Should this be included in the answer or should it be pursued as some sort of motion after the answer has been submitted?

This is a point I have some genuine leverage because my wife never charged anything on the account and not one dime of payments were made out of a joint account which I can easily prove to the court. In fact, if the plaintiff produces a statement(s) as evidence of account (so far nothing except an unsigned member card agreement) I'm fully prepared to use the plaintiff's own evidence to demonstrate to the court I'm the only one who ever paid on the card.

Advise please?

[jq26]

Your state has a decent website. http://coa.courts.mi.gov/rules/

http://coa.courts.mi.gov/rules/documents/1Chapter2CivilProcedure.pdf

If someone doesn't chime in with some civ pro knowledge, I'll try to post more later. I have meetings for the next 6 hours...

[OZZIE69]

Who was the original creditor?? What is amount owed?

Edited August 5, 2010 by OZZIE69

[FightBackNow]

Who was the original creditor?? What is amount owed?

Major CC company with penalties and jackd up interest about 20k. The point is it seems I have an extremely good case with multiple facts demonstrating there is only one debtor. So far the JDB has come up with zero proof of debt, but if they do later on in the process their own evidence will support a single debtor, not husband and wife. Thus it appears one of my first priorities is getting her name off the suit and I don't know the legal terminology or how to go about contesting her being named in the complaint.

Edited August 6, 2010 by FightBackNow

[KentWA]

It occurs to me that you can have twice the fun, increase their work by double and halve your exposure to attorney fees in an event you loose. Once they realize they are going to have to respond to two sets of paperwork the JDB may decide to cut its loses and dismiss.

You will most definately want to address this in the answers. Submit your answers seperately, one for each of you. Deny the existance of said account, you can do that since you know of no joint account. Then submit discovery, addmissions, etc seperately. For the non-debtor spouse you will attack the fact that they ever had an account, for the other use the usual stuff of prove it and prove you have proper assignment, etc.

You are highly likely to get the case againest the non-debtor spouse dismissed and attorney fees for that part of the action are not collectable at that point.

Final thought, if they went after a non-debtor in some attempt to get around the TBE exemption that would likely be an FDCPA violation. If both asserted claims of FDCPA and won it is possible you could each get $1,000! If a JDB saw the possibility that they could win $1,300 and still have to pay $2,000, they are likely going to want to settle.

[FightBackNow]

Your state has a decent website.

If someone doesn't chime in with some civ pro knowledge, I'll try to post more later. I have meetings for the next 6 hours...

Thanks jz25, but I've got those links. My problem is not knowing what terminology is used when answering a summons where part of the answer is contesting a spouse named in the complaint. Once I'm informed about what the process of having her removed is called and what should be filed, google will be my friend when it comes to complying with Michigan law. I firmly believe the facts are really on my side when it comes to getting my spouse removed from the lawsuit. This is a very important feature from an asset protection standpoint if things go bad.

[FightBackNow]

It occurs to me that you can have twice the fun, increase their work by double and halve your exposure to attorney fees in an event you loose. Once they realize they are going to have to respond to two sets of paperwork the JDB may decide to cut its loses and dismiss.

You will most definately want to address this in the answers. Submit your answers seperately, one for each of you. Deny the existance of said account, you can do that since you know of no joint account. Then submit discovery, addmissions, etc seperately. For the non-debtor spouse you will attack the fact that they ever had an account, for the other use the usual stuff of prove it and prove you have proper assignment, etc.

You are highly likely to get the case againest the non-debtor spouse dismissed and attorney fees for that part of the action are not collectable at that point.

Final thought, if they went after a non-debtor in some attempt to get around the TBE exemption that would likely be an FDCPA violation. If both asserted claims of FDCPA and won it is possible you could each get $1,000! If a JDB saw the possibility that they could win $1,300 and still have to pay $2,000, they are likely going to want to settle.

Thanks for the advise Kent. I'm preparing my answer to the complaint right now so it's imperative that I get this right.

Anybody know where to find Michigan guidelines on what constitutes liability on non-liability of a non card holding spouse in a credit card lawsuit?

[KentWA]

FightBackNow, The beauty of my tactic above is that you are not going to have to dig up information that you are likely not to find. They will have to prove liability separately.

[OZZIE69]

http://www.leagle.com/unsecure/page.htm?shortname=lev.creditcarddef.mi

This may help

[FightBackNow]

You will most definately want to address this in the answers. Submit your answers seperately, one for each of you. Deny the existance of said account, you can do that since you know of no joint account. Then submit discovery, addmissions, etc seperately. For the non-debtor spouse you will attack the fact that they ever had an account, for the other use the usual stuff of prove it and prove you have proper assignment, etc.

You are highly likely to get the case againest the non-debtor spouse dismissed and attorney fees for that part of the action are not collectable at that point.

Is it feasible to get the entire case dismissed on the basis of an improper party named (my spouse) and make them refile a new case in my name only if they want to proceed in the future?

Quick point of clarification: How exactly would it affect attorney fees if husband and wife answered separately and one party to the suit were thrown out? You implied fees would be cut in half (doubt the sleazy attorneys would view that as good news ), how does that work?

[FightBackNow]

This may help

Thanks Ozzie, from the article:

Michigan Is Not a Community Property State

This means that your spouse may not be liable for your credit card debts, if they were made on an individual card instead of a joint account. So even if your spouse was authorized to use the card, if he or she wasn't on the account, your spouse may walk away scot-free.

Let me tell you, the plaintiff is in for a rude surprise on this aspect of the case ! The alleged debt claimed by the JDB (which still has a long way to go in order to be proven) is clearly separate between spouses by just about any standard. I've got the goods on this one and for the first time in this nasty process am feeling EMPOWERED !!!

[KentWA]

Is it feasible to get the entire case dismissed on the basis of an improper party named (my spouse) and make them refile a new case in my name only if they want to proceed in the future?

Quick point of clarification: How exactly would it affect attorney fees if husband and wife answered separately and one party to the suit were thrown out? You implied fees would be cut in half (doubt the sleazy attorneys would view that as good news ), how does that work?

The most likely course of action would be that they (JDB or Court) would dismiss the wife from the case and allow it to continue againest you. Dismiss in its entirety would be unlikely.

If the case is dismissed againest your wife, then any attorney fees they expended in the pursuit of the case againest her is uncollectable, they would have to account in detail what fees were for time spend againest each defendant in the case. In the worst case where you lost, they would then need to justify all time that they spent only pursuing the case against you.

[jq26]

The most likely course of action would be that they (JDB or Court) would dismiss the wife from the case and allow it to continue againest you. Dismiss in its entirety would be unlikely.

This is what will likely happen. This is common in malpractice cases. Many physician practices are partnerships with hundreds of partners. The plaintiff will name every single partner. You will literally have 200 defendants. Then the named defendants who have no interest in the case have the suit against them dismissed, leaving the parties that have an interest.

Every state is different. And federal doesn't apply. Although all states and federal RCP all have analogous procedures.

[nobk4me]

Maybe your wife could file a motion to dismiss the suit against her, on the grounds she was not on the card and does not owe the debt.