Sued In Michicagn by Capital One/Blatt Hasenmiller leibsker Moore LLC

[michigandermarty]

1. Who is suing you?

Capital One rep by Blatt Hasenmiller leibsker moore pllc

2. For how much?

1600

3. Who is the original creditor?

Capital One

4. How do you know you are being sued?

Served by first class mail.

5. How were you served? Were you served?

Served by first class mail.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

One letter, back in may saying I had a court case opened. I sent DV, got email of certified Delivery confirmation. No response until I got the summons in the mail.

7. Where do you live?

Michigan

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

I dont remember this account

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily).

Open

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.

Yes

12. Does your summons require a response in writing?

Yes

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

An affidavit from a Capital one Employee from February.

14. What is the SOL on the debt? To find out:

6 years

summons was issued 7/27. Letter was postmarked 8/4/2010 and looked like a piece of solicitation mail except for the officer of the court label. I received it when I arrived home from a Contract Job(I work for a company as a contractor. I work all over Michigan and Chicago area IL) on 8/15/2010. It says I have 28 days after receiving this summons to respond. There was a court order allowing them to serve me via mail, as they couldn't serve me in person. I don't think they tried very hard..

I did, at one time, have a capital one card. I have no idea what the card number was, nor what the account number was. This was back in the early to mid 2000's. It only had a 500 dollar limit, and it was paid off with a bank loan with my other credit card in 2005, which I just made the last loan payment on! I have not used credit cards since.

1st Question. Would the received date be the 15th?

Complaint text and questions: Typos and punctuation errors are theirs

Some odd number printed here, that is not the court case number. Same number is handwritten on the affidavit attached.

State of Michigan

in the 84th District court

Capital one Bank(Usa). N.A.

Plaintiff

v

Me

(No case number listed on this sheet)

Complaint

Now Comes the plaintiff and claims as follows:

1. Plaintiff is a national banking association authorized to do business in the state of Michigan and the defendant(s) ME , , herinafter "Defendant(s) is a resident/are residents of the City of XXX, Michigan.

(How would I answer this paragraph? Yes, I am a resident of said city. But I cannot admit that plaintiff is authorized to do business. Can they put this in the same paragraph?)

2. Plaintiff and Defendant(s) entered into a contract for a revolving credit account.

(OK, deny, with verbiage having no knowledge, notice the said revolving credit account)

3. Defendant(s) did make purchases and charged same to the account, but the Defendant(s) failed to make the monthly payments due on the account.

(deny,with verbiage)

4. Plaintiff has completed performance and rendered an account stated in the sum of $1641.77 (See Plaintiff's Exhibit 1)

(Now they say account stated? ok.. thought it was a revolving credit account. How is it now a stated account? and of course the affidavit is dated and signed in february. Not sure how to attack it, since it is from a Cap one employee, but it is an old affidavit.. not sure how to use this info: Any affidavits, reports, and the like prepared in advance of litigation are not admissible. People v Huyser, 221 Mich App 293, 298; 561 NW2d 481 (1997))

5. The Plaintiff has declared the Defendant(s) to be in default and demands payment of the balance due on the account. Defendant(s) has/have refused said demand.

(When did they declare to me that I was in default or demand balance due? and when did I refuse this demand?)

WHEREFORE, the plaintiff prays for judgment against the Defendant(s) in the amount of $1641.77 plus costs, interest and statutory attorney fees.

(So, they jut get to tack on the fees and costs without declaring an amount? something doesn't seem right)

CAPITAL ONE BANK (USA), N.A.

(in tiny print, even though court rules say it cannot be any smaller than 12 point font)-> I declare that the complaint information above and attached is true to the best of my knowledge, information and belief.

Signature of crackerjack box attorney

crackerjack, Attorney for the Plaintiff

------------------------------------------------------

Ive been pouring over rules of the court for Michigan, cases, forum posts, etc for a few days and plan on typing up my answers and affirmative defenses tomorrow, which I will post as well when done.

I just would like some advice on how to proceed on some of the answers, what affirmative defenses I can use and if I can attack the affidavit somehow. I don't have money for a lawyer, nor much left after bills.

Thanks in advance.

[inthesticks]

No advice but I'm interested in the responses you get as I have a similar situation going on with same OC and attorneys.

[chuckygee]

If you paid this account off, I would start gathering the proof it was paid. Sounds like you should be able to fight this one in court. I would file the required answer with affirmative defenses. The affirmative defense would be "Payment".

In order for this defense to prevail, you would need to show proof of payment.

Don't limit yourself to the single affirmative defense, use whatever other ones are supported, but if you paid already, this should be an easy win.

[michigandermarty]

The problem is, I have no record of this account or account numbers. I purged it all.

I don't even have record of the payment I made on the card back in '05. I have dug around and have no proof.

I cant prove that this is the card I paid off. I cant see how it is.

I received no validation.

I am typing up my responses and affirmative defenses and will share them when done, to see if I have made any errors.

Very frustrating.

[chuckygee]

Expensive lesson to learn. Always keep record of accounts paid off until well after statute of limitations has expired. And since you paid with another loan, you won't have a bank record to back it up.

[michigandermarty]

My answers.Still working on affirmative defenses

Now comes The Defendant, xxxxxx, Pro Se, who denies the following paragraphs of Plaintiff's Complaint:

1. Defendant denies the allegations contained in the portion of paragraph 1 of the Complaint that states the Plaintiff is an authorized national banking association authorized to do business in the state of Michigan as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged statement, and admits to the portion of Paragraph 1 that states the Defendant resides in the City of xxx, MICHIGAN

2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 2 of the Complaint and therefore denies the same and puts Plaintiff to its strictest proof thereof.

3. Defendant specifically denies the allegations contained in paragraph 3 of the Complaint filed herein against him/her as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged statement(s) and puts the Plaintiff to its strictest proof thereof.

4. Defendant denies any alleged obligation to Plaintiff in paragraph 4 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant puts Plaintiff to its strictest proof thereof.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5 of the Complaint as plaintiff has failed to provide any documentation of alleged debt and therefore denies the same and puts Plaintiff to its strictest proof thereof.

6. Defendant specifically denies each and every allegation of the complaint not specifically admitted herein.

Affirmative Defenses

1. 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.

2. 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.

3. Plaintiff’s counsel did not afford Defendant due process of the law, under Fair Debt Collection Practices Act, Section 809(

4. 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.

5. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

WHEREFORE, the defendant prays that the court take nothing of Plaintiff's Complaint by virtue and dismisses the complaint. Further the defendant sayeth not.By the Defendant acting pro se

Sworn Denial

I deny that this is my debt and if it is my debt, I deny that it is still a Valid

debt and if it is a valid debt, I deny the amount sued for in the amount of $1641.77 including attorney fees is the correct amount.

Signed.

Edited August 20, 2010 by michigandermarty

[michigandermarty]

As an aside, the affidavit is from a litigation consultant at Cap one, and I say again, the affidavit was done in February.

Any advice as to how to attack this? a sworn denial? I want them to have to bring the consultant in to trial to prove this data.

[chuckygee]

You will need to go over the affidavit with a fine tooth comb and look for inconsistencies; interest rates different, dates incorrect, and such. The challenge is going to be surviving a MSJ if you cannot find proof of payment.

[michigandermarty]

There is only one date in the affidavit, stating that I am currently endebted to capital one for 164177 as of 08/26/2009then Only My name, and an account number. Interest rate of .00% accruing from said date.notarized and signed by Jamie williams on february 10th 2010

[michigandermarty]

I added my defenses and sworn denial to my answers post.

Someone please (or multiple someones) critique it.

[michigandermarty]

I added my defenses and sworn denial to my answers post.

Someone please (or multiple someones) critique it.

Ok, found a typo in my answers and fixed it. Hoping someone can give me advice/ et al. The advice given already, while good, doesn't help me in this matter