Widto

Summons taped to my door, Michigan, HELP!

Recommended Posts

Hi all. New to the forum, first post (sorry its so long, just want to cover as much as I can without any personal info).

I've been reading the forums for about a week on how to prepare my answer and I'm struggling to come up with a proper "Answer" to my particular situation. I've read many different "forms" to an Answer (I know one size don't fit all) and I think I've now gone into information overload.

Any help to clear my head and point me in the right direction would be an enormous help.

1. Who is suing you?

BFG LLC

2. For how much?

Between 8-9K

3. Who is the original creditor?

This is a tough one to answer. In one part of the “AFFIDAVIT OF ACCOUNT”(AoA) it lists BofA, NA but in another part of AoA it lists both BofA, NA and HNB (Hunt1n&ton N@tion@l Bank). Also in the Complaint and AoA it’s listed in this same manner.

4. How do you know you are being sued?

I received a Summons and Complaint

5. How were you served? Were you served?

Summons and Complaint was taped to my front door

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

None

7. Where do you live?

Michigan

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

According to the AoA Sept. of 2007

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

I need to file an Answer with the court and send copies to the “other party”

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 in writing? Yes, 21 days, 10 days remaining. (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

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

AoA also Complaint and AoA

14. What is the SOL on the debt?

6 years

This is what they are saying

Parties, Jurisdiction and Venue

1. Plaintiff, BFG LLC (“Plaintiff”), is a limited liability company (LLC) duly organized by Michigan law.

2. Plaintiff is an assignee of BofA, NA – HNB.

3. Defendant me (“Defendant”) is/are (a) resident(s) of XXXXXXXXX MI 48XXX.

4. Defendant is indebted to Plaintiff in the amount of 8-9xxx.xx, which is exclusive of costs and fees, as well as over and above all legal counterclaims.

5. Jurisdiction and venue are appropriate before this Honxxxx Court.

General Allegations

6. Defendant was originally indebted to BofA, NA – HNB (hereinafter the “original creditor”) under a credit agreement (“account” and/or “agreement”) which the Defendant and the original creditor entered into on or about Jxxe xx, 2007, identified as account number xxxx-xxxx-xxxx-xxxx (“account number”).

7. The amount due on this account is 8-9xxx.xx. The original creditor charged this account off as unpaid on or about Axxxx xx 2008. A last payment was credited to the account on or about xxptxxbxx xx, 2007 in the amount of $x0.00.

8. Plaintiff purchased the Defendants herein account on or about xxptxxbxxr xx, 2009 From CXXH LLC seller via an assignment and bill of sale causing the dependent to become liable to plaintiff on this debt. Upon the information and belief CXXH LLC purchase this account via an assignment and bill of sale from FIA. On or about Jxxxx xx 2008. Up on information and belief FIA purchase this account via an assignment and bill of sale from BofA, NA on or about Nxxxxxxr xx 2007.

9. Plaintiff is the true and lawful owner and assignee of this account.

10. The Defendant is now indebted to the plaintiff on the above account by virtue of the purchase and assignment of the debt.

11. Plaintiff incorporates the attached affidavit of accounts into this complaint.

12. Defendant accepted and used the above credit account.

13. Defendant made purchases using the above credit account.

14. Defendant failed to make repayment to the original creditor, or any person or entity, for the amounts borrowed.

15. Defendant's failure to repay the amounts borrowed caused damages to the original creditor, and others, including the plaintiff.

16. The original contract note or evidence of indebtedness, as well as monthly account statements, are all in, or were in the procession of the Defendant, where those documents were sent to the Defendant by the original creditor. MCR 2.113(F)(1)(B) and (2).

17. Original contract, note or evidence of the indebtedness is inaccessible to the plaintiff as it may no longer be in existence, or has been placed in storage by the original creditor and may not be able to be found, or only located at great cost, time and expense. MCR 2.113(F)(1)© and (2).

18. The original contract, note, or evidence of indebtedness is of a nature that attaching it is not required, unnecessary or impractical, for the reason that such document is or was in the position of the Defendant who not only receive and used this credit account to make purchases (see further MCL 445.862(a) and see Credigy Receivables, INC. v. Townsley, Michigan Court of Appeals, No. 280027, October 16, 2008), but is also aware of the contents in nature of the contract and further for the reasons also given in the paragraphs above and within this complaint. MCR 2.113(F)(1)(d) and (2).

19. MCL 445.862 (a) provides a in relevant part: " The retail charge agreement shall be considered signed and accepted by the buyer if after a request for a retail charge account the agreement or application for a retail charge account is in fact signed by the buyer or if the retail charge account is used by the buyer or by another person authorized by the buyer.” [Emphasis supplied] Therefore use of the account is equivalent of a signature to the “contract.”

20. Additionally, 15 USC 1642 mandates that no credit card shall be issued except in response to a request or application. Further 12 CFR 226.12(a)(2), fn. 21 state that an “accepted credit card” means any card up a car hauler has requested or applied for and receive, or has signed, used or authorize another person to use to obtain credit.

21. Defendant received credit statements from the original creditor for the amounts borrowed. The failure of a Defendant to object within a reasonable time to statements of account rendered constitutes an admission of their accuracy. Hawley v. Professional Credit Bureau, Inc., 345 Mich 500, 76 NW2d 835 (1956).

22. Defendant made a payment or payments upon those statements to the original creditor or others.

23. Defendant receive monthly credit statements from the original creditor but did not make a dispute or objection within a reasonable time, nor within sixty (60) day time period from receipt of the statements as mandated by the Fair Credit Billing Act (FCBA), 15 U.S.C. 1666(a); 12 C.F.R. 226.13(B).

24. The Defendant had or has a credit account with the account number xxxx-xxxx-xxxx-xxxx.

25. The Defendant had or has a credit account with BofA, NA – HNB.

Count I – Breach of Contract

Plaintiff herein restates and incorporates by reference all paragraphs within this complaint.

26. The agreement between the parties was for legally sufficient t consideration where the original creditor advanced credit to the defendant who accepted and used the credit.

27. Plaintiff and the original creditor have done and performed all things required of them under the terms of the agreement by offering and advancing credit to the Defendant.

28. Defendant received and used the credit offered by the original creditor to make various purchases and transactions.

29. Defendant did not re-pay the amounts borrowed.

Edited by Widto
Link to post
Share on other sites

30. Defendant is required under the agreement to repay the amounts borrowed.

31. Defendant has breached the Agreement by failing to repay the full amount due under the Agreement, thereby causing Plaintiff to suffer damages.

Count II – Breach of Implied Contract

Plaintiff herein restates and incorporates by reference all paragraphs within this complaint.

32. The original creditor offered and extended credit to the Defendant.

33. The defendant received, accepted and used the credit from the original creditor.

34. The defendant failed to fully repay the original creditor for the amounts borrowed, but did make a payment or payments on this account thereby ratifying this account.

35. Repayment of amounts borrowed by persons from creditors is customary and naturally anticipated.

36. Michigan law implies an understanding and intent on behalf of a person to repay the amounts borrowed in such a situation. R. G. Moeller Co. v. Van Kampen Co., 57 Mich. App. 308, 225 N.W.2d 742 (1975).

37. Defendant is bound by an implied obligation to repay the amount borrowed from the original creditor to the Plaintiff.

Count III – Quantum Meruit/Unjust Enrichment (Equity)

Plaintiff herein restates and incorporates by reference all paragraphs within this complaint.

38. Defendant received credit from the Plaintiff and/or original creditor.

39. Defendant used the credit and/or obtain money from the Plaintiff and/or the original creditor.

40. Defendant did not repay the full amount of the used and/or borrowed credit.

41. Defendant has been unjustly enriched in the amount of the debt owed by borrowing and/or obtaining money from the original creditor, but failing to repay the amount to the original creditor or to any creditor, assignee or party.

42. Plaintiff demands relief in equity upon the grounds of quantum meruit and/or unjust enrichment in the form of an order compelling repayment of all amounts borrowed but not repaid.

Count IV -Common Law Account Stated

Plaintiff herein restates and incorporates by reference all paragraphs within this complaint.

43. The original creditor provided credit to the Defendant under an open credit Agreement.

44. The original creditor sent cardholder statements of the account to Defendant, who received and retained the statements without objecting to them within a reasonable time.

45. Under the Fair Credit Billing Act ("FCBA"), the Defendant is required to have, within sixty (60)' days of receiving a statement, provided the requisite written notice of a billing error in regards to the statement. 15 U.S.C. 1666(a); 12 C.F.R. 226.13(B).

46. Defendant failed to object to the statements within a reasonable time, nor within the sixty

(60) day period.

47. Defendant assented to and/or affirmed the account by tendering a payment or payments to the Plaintiff and/or the original creditor upon the statement or statements rendered.

48. Plaintiff has completed performance and rendered a common law account stated.

Count V -Statutory Account Stated: MCL 600.2145

Plaintiff herein restates and incorporates by reference all paragraphs within this complaint.

49. The original creditor provided .credit to the Defendant Under an open credit agreement.

50. The original creditor sent cardholder statements of the account to Defendant, who received and retained the statements without objecting to them within a reasonable time.

51. Under the Fair Credit Billing Act ('.'FCBA"), the Defendant is required to have, within sixty (60) days of receiving a statement, provided the requisite written notice of a billing error in regards to the statement. 15 U.S.C. 1666(a); 12 C.F.R. 226.13(B).

52. Defendant failed to object to the statements within a reasonable time, nor within the sixty

(60) day period.

53. Defendant assented to and/or affirmed the account by tendering a payment or payments to the Plaintiff and/or the original creditor upon the statement or statements rendered

54. Plaintiff has completed performance and rendered a statutory account stated.

55. Pursuant to MCL 600.2145, Plaintiffs Affidavit of Account is attached hereto and is also hereby incorporated by reference into this Complaint.

Count VI -Promissory Estoppel/Equitable Estoppel (Equity)

Plaintiff herein restates and incorporates by reference all paragraphs within this complaint.

56. Defendant promised Plaintiff and/or the original creditor that if Plaintiff and/or the original creditor provided credit to Defendant, Defendant would make full repayment.

57. Defendant's promise was clear, definite and unequivocal, and was specifically made to induce Plaintiff and/or the original creditor to extend the contemplated credit for Defendant's benefit.

58. In reliance on the promise, Plaintiff and/or the original creditor performed all that was expected of it by extending credit to Defendant, who received and used the credit.

59. Despite full performance and repeated requests for payment, Defendant has refused and/or failed to repay Plaintiff as promised,

60. At the time of making the promise and inducing the action on Plaintiffs and/or the original creditor's part, Defendant could reasonably foresee that his OT her failure to perform pursuant to the promise would cause the damages Plaintiff has suffered.

61. To avoid injustice, this court must specifically enforce Defendant's promise to repay the amounts borrowed.

62. Plaintiff demands equitable relief upon the grounds of promissory estoppel and/or equitable estoppel.

Demand for Relief

63.. As of the filing of this complaint, over and above all legal counterclaims, the Defendant owes the Plaintiff the amount of $8-9k. which is exclusive of costs and fees.

64. Plaintiff demands an order causing of repayment by the Defendant of the balance of $8-9k.

65. Plaintiff demands a civil judgment award of the amount pled together will all allowable costs and interest, as well as a statutory attorney fee should a default judgment be entered.

66. Plaintiff demands that Defendant be ordered in equity to return the amounts borrowed or received from the original creditor but not repaid. WHEREFORE, the Plaintiff respectfully requests this Honorable Court to enter a Civil Judgment, and/or an Equitable Decree, to repay the amounts borrowed and/or received but not repaid, against the Defendant in the amount of $8-9k, together with all allowable costs, interest and attorney fees.

Link to post
Share on other sites

Can we say "law student" or "recent grad?!?!" Geez....

Your defense is:

1. They cannot be both "assignee" and "owner". Either BoA owns this acct and they are the assignee to collect or they bought the acct.

2. They did not purchase from BoA. They bought it from another JDB. You need to challenge the sale (chain of ownership).

3. They stated in multiple paragraphs.....we don't have any evidence. All we have is an "affidavit" and we are going to justify not having the evidence by saying the OC gave you those documents previously or "you didn't challenge in a timely fashion which defaults to you agree to the debt and the amount."

You need to challenge the affidavit as hearsay.

Also, when they were justifying their position regarding lack of evidence...(the part of "proof it is your acct", the very case they cite was a "affirm in part, remand in part") The remand was all about the lack of proof of the amount they CLAIM the defendant owed. [Credigy Receivables, INC. v. Townsley, Michigan Court of Appeals, No. 280027, October 16, 2008)]

8-)

This looks like this guy was trying to use anything and everything he could find...(case law from 1956 and 1975!?!) Also: "19. MCL 445.862 (a) provides a in relevant part: " The retail charge agreement shall be considered signed and accepted by the buyer if after a request for a retail charge account the agreement or application for a retail charge account is in fact signed by the buyer or if the retail charge account is used by the buyer or by another person authorized by the buyer.” [Emphasis supplied] Therefore use of the account is equivalent of a signature to the “contract.”" Hmmm, this is NOT a retail charge agreement. This is a credit acct. A retail acct is like Kays. (shows how new this atty is.)

Review on this site: http://www.creditinfocenter.com/legal/motion-to-strike-affidavit.shtml

Here would be my simplistic answers....

1.

1. agreed

2. Plaintiff cannot be an assignee of BofA, NA – HNB as stated if assertion by Plaintiff is as stated in paragraph 8.

3. agreed.

4. Deny.

5. Agreed.

General Allegations

6. Leave to Plaintiff as to their proof.

7. Denied.

8. Leave to plaintiff as to their proof. No knowledge of valid transfer or sale of any account.

9. Leave to the plaintiff as to their proof.

10. Leave to the plaintiff as to their proof.

11. Object to affidavit as hearsay.

12. Leave to the plaintiff as to their proof.

13. Leave to the plaintiff as to their proof.

14. Leave to the plaintiff as to their proof.

15. Leave to the plaintiff as to their proof.

16. Leave to the plaintiff as to their proof

17. Leave to the plaintiff as to their proof

18. Leave to the plaintiff as to their proof

19. MCL 445.862 (a) is irrelevant. Acct that plaintiff allegedly purchased is not a retail acct as definied in 15 USC 1642

20. Irrelevant.

21. Leave to the plaintiff as to their proof

22. Leave to the plaintiff as to their proof.

23. Leave to the plaintiff as to their proof

24. Leave to the plaintiff as to their proof.

25. Leave to the plaintiff as to their proof.

Count I – Breach of Contract

26. Leave to the plaintiff as to their proof.

27. Leave to the plaintiff as to their proof.

28. Leave to the plaintiff as to their proof.

29. Leave to the plaintiff as to their proof.

30. Leave to the plaintiff as to their proof.

31. Leave to the plaintiff as to their proof.

Count II – Breach of Implied Contract

32. Leave to the plaintiff as to their proof.

33. Leave to the plaintiff as to their proof.

34. Leave to the plaintiff as to their proof.

35. Irrelevant.

36. Irrelevant.

37. Denied. Leave to the plaintiff as to their proof.

Count III – Quantum Meruit/Unjust Enrichment (Equity)

Defendant states that the application of Quantum Meruit/Unjust Enrichment would apply to the Plaintiff not to the defendant. Plaintiff has not established ownership of any debt that Defendant is obligated to pay nor has plaintiff established that the amount claimed is due and owing to any entity.

38. Leave to the plaintiff as to their proof.

39. Leave to the plaintiff as to their proof.

40. Leave to the plaintiff as to their proof.

41. Denied.

42. Plaintiff has not adequately established a prima facia case for unjust enrichment.

Count IV -Common Law Account Stated

43. Leave to the plaintiff as to their proof.

44. Leave to the plaintiff as to their proof.

45. Leave to the plaintiff as to their proof.

46. Leave to the plaintiff as to their proof.

47. Leave to the plaintiff as to their proof.

48. Leave to the plaintiff as to their proof.

Count V -Statutory Account Stated: MCL 600.2145

49. Leave to the plaintiff as to their proof.

50. Leave to the plaintiff as to their proof.

51. Leave to the plaintiff as to their proof).

52. Leave to the plaintiff as to their proof.

53. Leave to the plaintiff as to their proof

54. Denied.

55. Affidavit of account is inadmissible as hearsay.

"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.]"

Count VI -Promissory Estoppel/Equitable Estoppel (Equity)

56. Leave to the plaintiff as to their proof.

57. Leave to the plaintiff as to their proof.

58. Leave to the plaintiff as to their proof.

59. Denied.

60. Denied. Insufficient evidence provided to establish this statement.

61. Denied. Leave to the plaintiff as to their proof.

Link to post
Share on other sites

Thanks for your reply momof5 it has really helped me to clear my head as to what to say.

Further, as I type my answer thoughts flow into my head on how to perform a MTS. This is what I've come up with so far (some copied some my own)

Critique please,

MOTION TO STRIKE AFFIDAVIT OF ACCOUNT IN SUPPORT OF PLAINTIFF'S CLAIMS

Comes now, Defendant (me) and respectfully states the following:

1. Plaintiff has submitted into evidence Exhibit “A” which consists of an “affidavit of account”.

2. Said document pertains to acts and events that allegedly occurred between Defendant and a third party, BofA, N.A. – HNB, two separate entities entirely. This alone cannot be considered as factual as it is impossible to have a single account number with two competing entities.

3. At no time was the creator of the “affidavit of account” or any of Plaintiffs employees present to witness any alleged acts or creation of the records of transactions occurring between defendant and BofA, N.A. or HNB.

4. As such said affidavit falls under the hearsay rule and is inadmissible as evidence.

5. Defendant further states that the affidavit is not subject to the hearsay business records exemption because it was not made at or near the time of the alleged acts or events, and;

6. The information contained in the document is merely an accumulation of hearsay, and;

7. Upon information and belief, the creator of the document (her name inserted here) in Plaintiff’s Exhibit “A” is not currently and has never been neither employed with BofA, N.A. nor HNB and therefore cannot have personal knowledge of how BofA, N.A. or HNB’s records were prepared and maintained, and;

8. Is unqualified to testify as to the truth of the information contained in Plaintiff’s Exhibit “A”.

WHEREFORE, the Defendant prays that Plaintiff’s Exhibit “A” be stricken from evidence in the above action.

Link to post
Share on other sites
Guest
This topic is now closed to further replies.