Michigan Summons and Complaint

[jenawade]

Hubby was served yesterday. I’ve spent hours looking through this site but haven’t gotten anywhere yet. Lots of links to where I can read through Michigan law but it’s all too overwhelming. Maybe someone can help.

Portfolio Recovery Associates, LLC, as successor in interest of HSBC Bank Nevada NA

Complaint:

1. Jurisdiction and venue are proper in this court.

2. Plaintiff, Portfolio Recovery Associates, LLC, predecessor in interest is HSBC Bank Nevada, NA.

3. Plaintiff’s assignor allowed Defendant(s) to charge goods and or services on open account, and upon Defendant’s promise to pay for same.

4. Upon information and belief, Defendant(s) has possession or the agreement upon which this claim is based.

5. Plaintiff’s assignor sent statements on account number ***** to the Defendant(s) who did not dispute the charges or object within a reasonable time.

6. Plaintiff and its predecessors in interest have performed its obligations under the terms of the agreement.

7. Defendant(s) have not paid the balance owing on the account despite Plaintiff and assignor demands for payment; Defendant’s failure to pay has resulted in default on the account.

8. Defendant(s) is now justly indebted to Plaintiff over and above all legal counterclaims, in the amount of $1,800. See attached documents which evidence Plaintiff’s assignment and the amount due and owing on this account, “Exhibit A.”

Wherefore, Plaintiff respectfully requests that a judgment be entered in its favor and against Defendant(s) in the amount of $1,800, plus costs, interest and attorney fees.

Exhibit A:

• 1st page, Portfolio’s “Statement of Account,” has account #, hubbies name & address, Issuer (HSBC), Assignee (Portfolio), Date Account Opened, Last Payment, Date of Charge Off, Balance at Purchase, Purchase Date.

• 2nd page, Portfolio’s “Affidavit,” although a full page, basically says the undersigned is competent and authorized by Portfolio to testify, that they now own the account, and that hubby owes them $1,800.

• 3rd page is a blanket “assignment and bill of sale,” from HSBC that just says they’ve entered into a purchase agreement for accounts. Nothing about hubbies account.

• The final pages are just a copy of HSBC’s generic credit card legal stuff – all that small print stuff.

That’s the whole package. From what I’ve read here we have a chance of getting this dropped, but I’m also reading that everything we submit needs to be state specific and all the examples I’ve read are from other states. And I can't make heads or tails of the legal sites, the information becomes a big blur.

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I received a response over in the 'State Laws, Case Law, Sample Forms' sub forum that said I would be better off posting the message where I'm putting it now.

Is there some kind of template I can start with specific to Michigan? Hubby and I are in school full time while working full time; add in the kids, our pets, and maintaining the household and there just isn't enough time to devote to this to make sure we don't mess up on a technicality.

[OZZIE69]

http://courts.michigan.gov/scao/selfhelp/general/answers.htm#filing

http://courts.michigan.gov/scao/selfhelp/intro/questions.htm

http://www.michiganlegalaid.org/library_client/resource.2006-03-07.0642840284/html_view

Read about arbitration also.

Edited October 25, 2010 by OZZIE69

[jenawade]

Read about arbitration also.

Good stuff here, thanks! (I had to remove the links in the quote).

[jenawade]

I'm working on the responses now, which will mostly consist of, "defendant lacks knowledge or information sufficient to form a belief as to the truth of an allegation," and "this request calls for admission of matter defendant has denied and thus it is improper." But how do I answer, (1) "Jurisdiction and venue are proper in this court." Is that an 'Admit'? And what about (2) "Plaintiff, Portfolio Recovery Associates, LLC, predessor in interest is HSBC Bank Nevanda, N.A." I have no personal knowledge of this....do I just 'Admit' to this as well?

Thanks!

[jenawade]

This is what I have. Any advice would be appreciated!

1. Admit.

2. Deny. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Plaintiff has provided no evidence to show that HSBC BANK NEVADA, N.A. is the original party of interest or that Plaintiff has been assigned all the rights, title and interest to the alleged HSBC BANK NEVADA, N.A account. Defendant demands strict proof thereof.

3. Deny. Plaintiff has provided no evidence indicating Plaintiff’s assignor allowed Defendant to charge goods and or services on open account, or that the Defendant promised to pay for same. Defendant demands strict proof thereof.

4. Deny. This request calls for admission of matter Defendant has denied and thus it is improper.

5. Deny. No demands for payment have been made upon the Defendant by the Plaintiff prior to the issuance of the Complaint(s). Plaintiff has provided no evidence supporting this claim. Defendant demands strict proof thereof.

6. Deny. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof.

7. Deny. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Plaintiff has provided no copies of itemized account statements or any other supporting evidence. Defendant demands strict proof thereof.

8. Deny. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. Defendant objects to affidavit as hearsay

AFFIRMATIVE DEFENSES

As and for a First Defense

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.

As and for a Second Defense

Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

As and for a Third Defense

Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Fourth Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

As and for an Fifth Defense

Plaintiff’s Complaint fails to allege a valid assignment for this account and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

As and for a Sixth Defense

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.

As and for a Seventh Defense

Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff for this account. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

As and for an Eight Defense

The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

As and for a Ninth Defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

As and for a Tenth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

As and for a Eleventh Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for a Twelve Defense

Plaintiff's alleged damages are limited to real or actual damages only.

As and for a Thirteenth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

WHEREFORE, Defendant prays that the Complaint be dismissed with prejudice.