Savoir

Digging in the trenches now …

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Basic case history can be found here if you need it:

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1069839&postcount=7

Today I received a half-inch thick packet of papers from the plaintiff’s attorney and it has me very worried.

There was about a years worth of statements, two bills of sale, and 10 pages of something I’ve never seen mentioned on this board before.

The statements

A full years worth of statements from this alleged account that show every purchase I was supposed to have made during that period. This so called account is supposed to be 10 years old however, so that’s not a full accounting. Is it ... and why does it have to be?

The bills of sale

The first one is supposed to be from the OC to the first JDB and has their little logo at the top to make it look like it’s on their letterhead.

No link to my alleged account number; it just references an Exhibit.

Signature from OC is illegible. Job title = Team Leader.

Dated - xx/xx/10

Signature from the buyer is just initials. Job title = hand written and is illegible. Dated - 1-day prior (as best as I can make out).

That is NOT a typo. It is dated 1 day prior. Just a technicality and easily explained away, but still..??

The second bill of sale is supposed to be from the first JDB to the plaintiff.

Again, no reference to my alleged account number; just a reference to another Exhibit.

Signature from the seller looks very similar to the buyer’s signature on the first bill of sale.

Signature from the buyer (plaintiff) is non-existent.

Dated – the same day as the bill of sale from the OC to the first JDB.

The Exhibits

I can find nothing actually marked as an Exhibit per se however, there are a number of pages that look like they were created in a spreadsheet program. One column is a list of what one would assume to be account numbers. All other columns are blacked out. Only one row is complete all the way across and that has information about my alleged account.

The question

Ladies and gentlemen … I don’t mind telling you that I’m extremely worried that they’re going to punch my ticket.

I seem to have only one option in this situation. Attack the chain of ownership. The problem is that I have no idea of how to accomplish this. On the surface it seems ironclad.

I realize that there are technical details that could be pointed out but I have no idea of how to present those facts to the judge or to deliver the ‘final blow’ thereby, proving that they have no standing. I'm not so sure that the technical details will out weigh the preponderance of evidence in any event.

Any help would be a life saver …. !!

As a side note

Plaintiff has had a LOT of cases in my District Court in the last year; most of which have ended in default judgment. I don’t want to be among them.

I am also a little afraid of a judge that is weary of this type of case or one of the ‘good ol’ boys’ will not even pay me any mind.

The end

Thank you very much for the time it took to read all this and for any assurances, assistance and advice that you might offer. I know you aren’t going to do the work for me but, if you point me in the right direction, I’ll take it from there.

Best regards.

Edited by Savoir
to remove a mistake I made in haste

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All of the above accompanied a motion for Summary Judgment.

Hearing in 6 weeks. Man they move fast here!

Edited by Savoir
Just like to add this ...

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Is there an affidavit confirming/authenticating the records/documents supplied? In other words did someone authenticate the stack of papers as being true and accurate records of fact?

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All of the above accompanied a motion for Summary Judgment.

Hearing in 6 weeks. Man they move fast here!

I don't see any authenticated evidence that would lead to a summary judgment. Affidavit is no good (hearsay) and lacks foundation. Bill of Sale is no good (does not identify your alleged account). I see no evidence on the record that the junk debt buyer has standing to file suit in your State. Attack the MSJ due to lack of authenticated evidence and cite the issues I raised. Not sure what you are worried about.

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I don't see any authenticated evidence that would lead to a summary judgment. Affidavit is no good (hearsay) and lacks foundation. Bill of Sale is no good (does not identify your alleged account). I see no evidence on the record that the junk debt buyer has standing to file suit in your State. Attack the MSJ due to lack of authenticated evidence and cite the issues I raised. Not sure what you are worried about.

Massive .... I've never even been in a court room before. I know I'm over reacting but, I get very nervous when I'm unsure of myself.

Even if I went and sat in on a few court sessions I don't know if I would glean much experience because, according to the court cases I've looked at online, most end up with the defendant not showing up.

I've got to educate myself as to the meaning of 'foundation' and 'hearsay' 'lack of standing' and 'authenticated evidence' and then find out how to apply it to their allegations. How do you look up case law and precedent?

And then ... how do you go about fighting the stack of statements they sent?

I know I've made some mistakes so far and I don't even know what they are.

This, from their Motion For Summary Disposition:

"Defendant failed to include a Counter-Affidavit in his answer to the Complaint"

I did include a Sworn Denial of Debt but apparently, that wasn't good enough.

There is absolutely no way I can afford an attorney at this point and am forced to go this alone (with all your generous support, of course).

This thing is just so overwhelming.

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Is there an affidavit confirming/authenticating the records/documents supplied? In other words did someone authenticate the stack of papers as being true and accurate records of fact?

No affidavit authenticating anything. The paperwork I received included:

1. a Motion for Summary Disposition. *** I think I have to respond/answer this one

2. a brief in support of said Motion. *** not sure about this one

3. Plaintiff's response to my motion to Strike an affidavit they sent with the Summons. ***do I need to respond to this?

4. The Bills of Sale.

5. A stack of statements.

Edited by Savoir

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Please understand that I am not from your jurisdiction, but generally here is what you should need-These are alot of work and you feel out gunned, but take each one at time. Don't look at the whole lot---

Goal- "Create a triable issue of material fact"-something a tirer of fact needs to determine that can't be decided on paper but testimony needs to be heard.

1. a Motion for Summary Disposition. - Defendants Opposition to Motion for Summary Judgement is the name of your filing. Review what they have by paragraph and refute by paragraph any and all information you can no matter how small. If a date is wrong and dosen't correspond to the evidence they submitted call it out. Go back to your answers and affirmative defense and weave them into this document.

2. a brief in support of said Motion.- Defendants Brief in Opposition to Motion, save this one till last if it is the one with all the law citations, these take a good amount of time to track down. If there is a Statement of Undisputed Facts in this document, you will need to counter each fact or in other terms make it disputed.

3. Plaintiff's response to my motion to Strike an affidavit they sent with the Summons- Defendants Opposition to Plaintiffs response to MTS. Yes, you have a second chance to rebutt their arguement against the MTS, you may address and only re-iterate from your original motion, but answer it with a response.

4. The Bills of Sale.- Chain of custody is the key that needs to show, this means an affiant via affidavit is testifying as the the validity. Question to ask yourself, how do they know something, for instance how do they know you recieved the statement from personal knowledege. Do they know the mail room and how it functions at the OC's operation.

5. A stack of statements. -Review each statement carefully looking for small things, do the statements prove from zero to final amount they are suing for, does interst rate match that of the cardagreement they supplied as what they can charge. Did the overlimit or late fees change from 15.00 to 29.00 if so is that part of the agreement.

Finally you will probabley need file an affidavit yourself that is notarized- Might look something like this- you need to understand this will become testimony under oath, so check your wording carefully. Your affidvit counters or equals the plaintiff's affiant, and can assit in creating a "triable material issue of fact"

I, Defenadant, declare as follows:

“My name is Defendant I am over 21 years of age, am of sound mind, am capable of making this declaration, and am personally acquainted with the facts stated herein.

“I do not owe Plaintiff the sums alleged in Plaintiff’s Complaint.

“I have never agreed to any stated account or final balance of any monies allegedly owed to Plaintiff.

“I and Plaintiff have never been able to adjust our differences and reach any agreement regarding any amounts allegedly owed to Plaintiff.

“I have never agreed or promised to pay the amounts allegedly owed to plaintiff.

“I have read the above and foregoing affidavit, and declare under the penalty of perjury under the laws of the State of XXXXXXXX that the facts and statements contained herein are within my personal knowledge and true and correct to the best of my recollection.

You will need to tweak these for your personal situation

Best of Luck

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MOTION FOR SUMMARY DISPOSITION

Little bit of legalese from plaintiff saying I want to bury this chump.

1. This motion is brought under MCR 2.116©(9) and/or (10)

How does one answer this? Does one need to answer this?

What MCR 2.116 Part© deals with is Grounds

#9…. The opposing party has failed to state a valid defense to the claim asserted against him or her.

#10 …. Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

2. Defendant has failed to state a valid defense to the claims asserted against him and has failed to assert facts giving rise to an issue of material fact for trial.

I thought I did have defenses; I included these in my affirmative defenses:

  • The Statute of Frauds bars the action. Defendant has no written, oral or implied contract with Plaintiff.
  • The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.
  • Plaintiff's Complaint fails to prove a valid assignment of debt and there are neither documents as to the nature of the purported assignment nor any evidence of valuable consideration.
  • 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.

3. The complaint is based upon an Affidavit of Account Stated, which was attached to Plaintiff’s Complaint as Exhibit A and which is incorporated herein by reference. (MCL 600.2145)

I get real tired chasing the rules down but MCL 600.2145 refers to the affidavit again. In my motion to strike I specifically told the court that the affidavit was dated a full month before they even filed and I was bringing up the point about the rule that states:

“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.”

And of course I gave reasons as to why it should be regarded as hearsay.

4. Defendant failed to include a Counter-Affidavit in his answer to the complaint.

I did file a Sworn Denial that I signed, dated and had notarized in the courthouse. Isn’t that sufficient?

5. Attached as Exhibit A are copies of detailed account statements that were sent to the Defendant. These statements indicate payments, purchases, interest and fees that accrued on defendants account.

Goes on to list the OC and alleged account number.

(Continued)

Plaintiff has attached these statements to demonstrate Defendants knowledge of the account, it’s terms and the remaining balance.

So …. I have to attack the authenticity of these alleged statements??

How do I go about doing that? On what grounds …. and why?

6. Attached as Exhibit B is the Chain of Title assigning ownership in Defendants account to the Plaintiff.

I know I’ve got to attack this. Neither of these two documents have anything about my account number on them. But there is a redacted spreadsheet with that info on it.

Again, how? And why?

I guess I just need to know the underlying mechanics of the paper game here. I can find the definitions. But to be able to apply them to concepts I don't understand is an different story.

The brief in Support of the Summary Disposition basically regurgitates all of the above in less formal language. There is no case law at all and just a mention of MCL 600.2145 again.

It's late .... I need sleep.

As mentioned many times ... I REALLY appreciate you being here and for your support and advice.

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I went back and read the original post from the link you posted in the thread, there you make no mention of Affirmative Defenses. But I see that you say you did raise 4 different defenses. Where these filed at the time of your answer?

Next question are you considering your denials to the complaint (answers) to be what you consider a "sworn denial". Or did you have a complete seperate sworn denial/decleration/affidavit outside of your answer?

This maybe important because the MCL that they are using requires you to-

"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."

You see there are 2 items, "answer and affidavit" if you supplied them then you are with-in the procedure, the way they are coming at you they don't believe you have met civil procedure and think they can win on these points. They are less concerned with their weak evidence than you made a procedural error and now you can't attack their week evidence.

Respond to these first and then we can tackle the rest of your questions.

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If by chance you didn't file the affidavit on time here is a case that will help you overcome the mistake. And if you did file the affidavit you can put this in your Opposition case and quote som Michigan Law as a pro se, make them look up a case for a change....

http://www.michbar.org/opinions/appeals/2008/100708/40687.pdf

God must have been helping tonight it was the next link on my google search, was looking for something else.

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Go here and read this pay attention to the law citations, you will want to look some of these up as they should asist you in your opposition.

http://www.ftc.gov/os/comments/debtcollectroundtable2/544507-00015.pdf

This fella testified before the FTC and is talking about your case so far. Review those law citations and I will bet alot of the work for you is done in those cases.

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I went back and read the original post from the link you posted in the thread, there you make no mention of Affirmative Defenses. But I see that you say you did raise 4 different defenses. Where these filed at the time of your answer?

Actually, I raised 11 affirmative defenses and yes they were filed with my answer and on time.

Next question are you considering your denials to the complaint (answers) to be what you consider a "sworn denial". Or did you have a complete separate sworn denial/decleration/affidavit outside of your answer?

No I am not ..... I had a complete separate sworn denial outside of my answer filed at the same time as my Answer/Affirmative defenses. Filed a Motion to Strike Affidavit at the same time.

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If by chance you didn't file the affidavit on time here is a case that will help you overcome the mistake. And if you did file the affidavit you can put this in your Opposition case and quote som Michigan Law as a pro se, make them look up a case for a change....

http://www.michbar.org/opinions/appeals/2008/100708/40687.pdf

God must have been helping tonight it was the next link on my google search, was looking for something else.

The only flaw I can see in this is that I really didn't provide any contrary evidence.

This being stated, I will go back to it for a more thorough study.

Thanks much...

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Go here and read this pay attention to the law citations, you will want to look some of these up as they should asist you in your opposition.

http://www.ftc.gov/os/comments/debtcollectroundtable2/544507-00015.pdf

This fella testified before the FTC and is talking about your case so far. Review those law citations and I will bet alot of the work for you is done in those cases.

I've seen that and read it through 50 times. I have looked into some of the cases he mentioned and never saw much of anything that really applied to me.

I can see the key points regarding account stated in the Keywell & Rosenfeld v Bithell case but the whole concept of that case seems pretty silly to me. Again, I will read that at length and study it for pertinent points of law.

Thank you once more ...... you've been invaluable.

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Here is an example of how to go after point #1

NOW COMES THE DEFENDANT IN THE ABOVE TITLE ACTION;

Defendant moves this Court for an Order denying summary judgment against the Defendant for the reason that there are genuine issues of material fact and the Plaintiff is not entitled to judgment against the Defendant as a matter of law.

This Motion in Opposition to Plaintiff’s Motion for Summary Judgment and is based upon-

(1) Plaintiff’s error in stating “#9…. The opposing party has failed to state a valid defense to the claim asserted against him or her.” Defendant filed with his answer the following Affirmative Defenses to the Claim on 1/1/2010.

(2) Plaintiff has failed to acknowledge the following (11) Affirmative Defense filed with the Defendant’s answer of which (X number) are fatal to the Plaintiff’s Motion and Evidence presented in Plaintiff’s motion. The first is “Lack of Standing”. Plaintiff has not shown the necessary chain of custody from alleged original creditor, to themselves as this alleged debt has been assigned multiple times, to different alleged owners, by Plaintiff’s own complaint.

What you do is take each point they have made, and challenge it and then point back to your answer and affirmative defenses you raised. Remember the MSJ they have filed is another pleading document, it is not live testimony in court, so just as they emblished the truth in their complaint, this is more of the same. Relate your challenges back to exhibits they have attached first, when you can and then back to the documents you have filed, Answer, Affimative Defense and Motion to Strike.

Finally, they are trying to win this based on procedure, meaning if you don't file opposition to this they will win. They are counting on you getting frustrated and flustered with having to reguritate information already filed into a different form and set of papers. They are counting on you saying screw it I am tired of fighting this is to much work.

So you can feel like you are making progress go through and answer each point once with a general rebuttle. The go back through a second and third time to add a little more beef to each point of their Motion. Work on it for 2-3 hours walk away, when you return review and add to the points. This will help with the overwhelming nature.

Your biggest issue to overcome is from your original post-

3. A jurisdictional allegation telling the court that the amount in dispute is under $25,000

I may have messed this one up as I admitted, thinking that I can't really argue that the amount disputed is under $25,000

4. That I opened a charge account with so and so on such and such a date and an agreement was delivered to me.

Admit in part - Denied in part

I am not clear on how they used these in their MSJ....

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Your biggest issue to overcome is from your original post-

3. A jurisdictional allegation telling the court that the amount in dispute is under $25,000

I may have messed this one up as I admitted, thinking that I can't really argue that the amount disputed is under $25,000

4. That I opened a charge account with so and so on such and such a date and an agreement was delivered to me.

Admit in part - Denied in part

I am not clear on how they used these in their MSJ....

They never even mentioned number 3 in the MSJ

The jumped on number 4 pretty hard.

'Defendant admits to opening an account with OC however; denied that he is indebted to the Plaintiff as Plaintiff has failed to provide proof of indebtedness.'

They go on to explain how they have now included a bunch of statements to indicate payments, purchases, interest & fees.

Thanks for getting me started in the right direction ... I am forever in your debt .... in a figurative way of course. I don't want to get sued again !!

Edited by Savoir

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Many times in the complaint they are remiss in calling out the exact account by account number, they may have generalized this information for the complaint. If this is the case for you, you need to address this point heavily.

'Defendant admits to opening an account with OC however; denied that he is indebted to the Plaintiff as Plaintiff has failed to provide proof of indebtedness.'

In your oppostion it might look something like this-

Plaintiff's reference to charge #4 of the complaint makes an attempt to infer Defendant has admittied to opening account # XXXX XXXX,XXXX XXXX with the OC listed in the complaint. Plaintiff's neglect to reference the account number in the complaint, forced the Defendant to supply a general admission and denial due to the general nature of information supplied in the complaint.

Plaintiff did not supply at the time of the complaint the alleged business records it now relies on as true and correct copies from the OC

Plaintiff's evidence exhibit X "statements of account number XXXXXX, have not been authenticated as true and correct business records, by an affiant competent to testify as to there blah, blah blan...

Hope this gives you some idea's, as you continue this monumental task, unfortunatley as you go deeper in the legal process you can see that it really isn't about truth and law and rights, it is about who can manipulate the english language the best....

Finally be sure to do an accounting of the statements, Total Charges, Total Payments, Total Interest and late fees. If they don't have the entire account back to zero, you may need this information later. This is an account stated claim, always good to know how much the bill is based on actual charges and payments and interest of the statements they did supply.

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Finally be sure to do an accounting of the statements, Total Charges, Total Payments, Total Interest and late fees. If they don't have the entire account back to zero, you may need this information later. This is an account stated claim, always good to know how much the bill is based on actual charges and payments and interest of the statements they did supply.

I've read many times on this board that they need to account back to zero balance but have never been able to ascertain as to why they would need to or if they need to in my area. Can you enlighten me?

Plaintiff did not supply at the time of the complaint the alleged business records it now relies on as true and correct copies from the OC

Plaintiff's evidence exhibit X "statements of account number XXXXXX, have not been authenticated as true and correct business records, by an affiant competent to testify as to there blah, blah blah ...

I have no idea of how I will ever repay you for your invaluable assistance but if there's any way .....

Hope this gives you some idea's, as you continue this monumental task, unfortunately as you go deeper in the legal process you can see that it really isn't about truth and law and rights, it is about who can manipulate the english language the best....

Yes, I'm beginning to get the drift thanks to your invaluable coaching. Manipulation .... the word itself is malodorous.

I've got lots of work to do and precious little time to accomplish it in. Normally, I'm pretty good under the gun except in areas unfamiliar.

Thanks again ... so much !!!

Edited by Savoir
grammer

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Thanks to you both for sharing all of this invaluable info and advice- can I ask what to do when the statements don't start with a zero balance? As in the case of being presented with a full account history on say a "Capital One" credit card for example, but it had been previously sold in good standing by a previous creditor with a balance that was carried over? I've been presented with a stack of statements but the opening balance isn't zero... Thanks so much for letting me pipe in!

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I've read many times on this board that they need to account back to zero balance but have never been able to ascertain why they would need to or if they need to in my area. Can you enlighten me?

A good deal of the time I have seen a year or 18-24 months of statements sent to me. I have 4 active suits. Typically, these will have the 6 months of no activity other than late charges and overlimit fees. What I am trying to find is what is the dollar amount of charges, payments, and interest and fees. If they don't start from a zero balance then the amount they can prove is what they have proffered to the court with the evidence provide. You maybe sued for $5K but the statement they provide may only add up to $1000.

So this is my take and I maybe way off base. Account Stated is a theory that the underlying contract agreement is void, and new contract is been made based on useage of the account. Well if there are very few charges and limited payments, in statements they have provided is that enough to create the new contract. What if no payments are reflected in the statement did you assent to a new and binding contract. What if there are no charges, due to a balance transfer and then default.

Another good question to bring up if a payments are made, how do they prove you paid? Do they have a copy of a check in evidence, if it was an online payment how do they attribute the payment to you....

Realistically, you want to get the statements kicked due to businees records hersay and lack of affiant that can authenticate.

Opposition to MSJ is about creating a triable issue of material fact. The burden of proof is on them, they have attached their exhibits, your job is to rip them to threads in as many ways as possible.

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