InDebt2

LVNV in Michigan

Recommended Posts

Here we go .........

1. Who is suing you?

LVNV Funding LLC

2. For how much?

Under $3500.00 plus costs, interest and attorney fees.

3. Who is the original creditor?

Crap 1

4. How do you know you are being sued?

Received summons

5. How were you served? Were you served?

Summons taped to my door when I got home.

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?

I have no idea

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).

Summons served – Awaiting Action

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? (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.

I have 21 days to file a written answer with the court and serve a copy to the other party or take other lawful action with the court (28 days if you were served by mail or you were served outside of this state).

We need to know what the "charges" are. Please post what they are claiming.

1. Plaintiff is a corporation authorized to do business in the State of Michigan and the defendant, InDebt2, hereinafter “Defendant(s)” is a resident in MY CITY, Michigan.

2. Defendant entered into a contract for a revolving credit account, “the Account,” with Crap 1.

3. Plaintiff is the successor in interest of said Account having purchased said Account in good faith, for value, and in the ordinary course of business.

4. Defendant did make purchases and charged same to the Account, but the Defendant failed to make the monthly payments due upon the Account and there is an account stated in the sum of $#,###.## (See Plaintiff’s Exhibit 1).

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

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

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?

The only thing attached was Plaintiff’s Affidavit Of Indebtedness And Ownership Of Account (Exhibit 1).

See next post for the complete affidavit.

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

In Michigan the SOL is 6 years.

Link to comment
Share on other sites

Now comes the undersigned affiant, who having been duly sworn and cautioned according to law, depose and states as follows:

1. I am an Authorized Representative for LVNV Funding LLC (hereafter the “Plaintiff”). I am authorized to make this affidavit on its behalf, and the information below is true and correct to the best of my information and belief based on the Plaintiff’s business records.

2. I have personal knowledge regarding Plaintiff’s creation and maintenance of its normal business books and records, including computer records of its accounts receivables. This information was regularly and contemporaneously maintained during the course of the Plaintiff’s business.

3. In the ordinary course of business, Plaintiff regularly acquires revolving credit accounts, installment accounts, service accounts and/or other credit lines. The records provided to Plaintiff have been represented to include information provided b the original creditor or it’s successors in interest. Such information includes the debtors name, social security number, account balance, the identity of the original creditor and the account number.

4. Based upon the business records maintained on accou (blacked out here) #### (hereafter “Account”), which are a compilation of the information provided upon acquisition and information obtained since acquisition, the Account is the result of the extension of credit to InDebt2 by Crap 1 on or about (date here) (the “Date of Origination”). Said business records further indicate that Account was then owned by Crap 1, that Crap 1 later sold and/or assigned Portfolio ##### to Plaintiff’s assignor which included the Defendant’s Account on (date here) (the “Date of Assignment”) and on the Date of Assignment, all ownership rights were assigned to, transferred to, and became vested in Plaintiff, including the right to collect the purchased balance owing of $#,###.## plus any additional accrued interest.

I affirm under penalty of perjury that the above facts are true and correct

Edited by InDebt2
Link to comment
Share on other sites

The records provided to Plaintiff have been represented to include information provided b the original creditor or it’s successors in interest.

I am pretty new at this, but the above IS hearsay....as is #3-4 they CANNOT have "personal knowledge based on Plaintiff's records when Plaintiff Acquired the account from "elsewhere"- not possible, Plaintiff's records have NO record of the OC computing "anything", nor can the Afil testify to the accuracy of any amount(s) prior to them acquiring the alleged account. HEARSAY

Other thing (IMO) is the unbroken chain of custody from this JDB right back to the OC- I doubt they can manage that requirement......

But again I'm new at this xangelx

What say ye experts?

Link to comment
Share on other sites

I am pretty new at this, but the above IS hearsay....as is #3-4 they CANNOT have "personal knowledge based on Plaintiff's records when Plaintiff Acquired the account from "elsewhere"- not possible, Plaintiff's records have NO record of the OC computing "anything", nor can the Afil testify to the accuracy of any amount(s) prior to them acquiring the alleged account. HEARSAY

Other thing (IMO) is the unbroken chain of custody from this JDB right back to the OC- I doubt they can manage that requirement......

But again I'm new at this xangelx

What say ye experts?

Pretty obviousily hearsay but, how do you find out about the chain of custody? It's not patently obvious who THEY aquired it from.

Link to comment
Share on other sites

Comes Now the Defendant, InDebt2, Pro Se, to answer the following

paragraphs of Plaintiff’s Complaint:

I. ANSWER:

  • In response to paragraph #1, Defendant denies in part; specifically, that Plaintiff is licensed or authorized to do business in the State of MY STATE and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.
    and:
    admits in part, specifically, that Defendant is a resident of the MY CITY, MY STATE
  • In response to paragraph #2, Defendant denies the allegation contained therein; specifically, that Defendant entered into a contract for a revolving credit account with Crapitol One / Visa card. No contract has been submitted into the record to evidence the allegation and leaves Plaintiff to provide proof. Defendant demands strict proof thereof.
  • In response to paragraph #3, Defendant denies the allegations contained therein. Specifically, Plaintiff has failed to enter into record any evidence that Plaintiff has purchased said Account nor has Plaintiff disclosed the value given for the alleged purchase. Defendant leaves Plaintiff to provide proof. Defendant demands strict proof thereof.
  • In response to paragraph #4, Defendant denies all allegations in paragraph #4. Specifically, Plaintiff has not provided any evidence showing that Defendant made any purchases charged to the alleged account nor has Plaintiff provided proof that Defendant failed to make payments on the alleged account. Defendant leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.
  • In response to paragraph #5, Defendant specifically denies the allegations contained in the paragraph since no demands were ever made of Defendant by Plaintiff nor has Defendant refused said demand.Defendant leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

Furthermore, Defendant denies every other allegation not previously admitted, denied or controverted.

II. AFFIRMATIVE DEFENSES:

  • The Plaintiff has not proven the alleged debt is valid or the amount of the alleged debt is accurate. The Plaintiff must prove that the alleged principal, interest, collection costs and alleged attorneys fees are all correct, agreed to in the alleged contract, and lawfully charged. Defendant also insists that the Plaintiff provide the alleged contract and a complete accounting proving the amount of the alleged debt.
  • The Court would unjustly enrich the plaintiff by granting the relief sought herein. Plaintiff's alleged damages are limited to real or actual damages only.
  • Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.
  • The Statute of Frauds bars the action. Defendant has no written, oral or implied contract with Plaintiff.
  • The Plaintiff is not a “Successor In Interest” for the purported agreement and no evidence appears in the record to support any related assumptions.
  • Plaintiff's Complaint fails to prove the valid “successor in interest” claim of this alleged debt and there are no documents as to the nature of the purported “successor in interest” claim nor any evidence of valuable consideration.
  • Plaintiff's Complaint fails to allege whether or not the purported “successor in interest” claim was partial or complete and there is no evidence that the purported “successor in interest” claim is bona fide.
  • Plaintiff's Complaint fails to allege that the puchase of this alleged debt conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.
  • 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.
  • The Plaintiff's claim is barred for lack of standing because no Debtor/Creditor relationship exists between the parties, who have had no prior course of dealing.
  • Plaintiff has failed to state a claim against which relief can be granted.

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

WHEREFORE, the Defendant prays that this Honorable Court take nothing of the Plaintiff's Complaint and dismisses this complaint with prejudice.

Adequate? or is more needed?

I intend to file a sworn denial and a motion to strike the affidavit along with my answer.

Link to comment
Share on other sites

Pretty obviousily hearsay but, how do you find out about the chain of custody? It's not patently obvious who THEY aquired it from.

YOU make THEM ......

PROVE EVERY aspect of assignment from

A. OC TO Present Day

B. WHAT Rights (exactly were assigned) e.g. MAKE them PROVE they have a Legal RIGHT to collect from YOU i.e. sue YOU........that YOU owe THEM THE AMOUNT THEY CLAIM

C.) YOU DEMAND they PROVE the Accounting from OC to date IS verified and accurate, contract IS still valid etc.

IOW YOU make THEM PROVE their case ENTIRE Chain from OC. to the Complaint NO exceptions DEMAND STRICT PROOF THEREOF (ALL)

Edited by hopefulscambeater.
Link to comment
Share on other sites

I intend to file a sworn denial and a motion to strike the affidavit along with my answer.

We're working on our answers as well - about 2 weeks into our 21 days. Will you share your sworn denial and a motion to strike the affidavit when you have them ready?

Link to comment
Share on other sites

I see the sworn denial is pretty easy: 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 $xxxx including attorney fees is the correct amount.

What about the motion to strike the affidavit? Do you think it needs to be this in-depth?: http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=249195&highlight=memorandum+support+motion+strike+affidavit+michigan

Link to comment
Share on other sites

I see the sworn denial is pretty easy: 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 $xxxx including attorney fees is the correct amount.

What about the motion to strike the affidavit? Do you think it needs to be this in-depth?

Yes .... the sworn denial is pretty easy. Take note that it does have to be notarized.

I believe that the motion to strike should be as in-depth and as detailed as you can get it; quoting rules of evidence and case law if you can.

Watch out for that 'written instrument' stuff though, that's not necessarily a valid argument in an account stated cause of action.

Plaintiff can always argue that MCR 2.113(F)(1)(B) applies in any event.

Stress the hearsay aspect of the JDB's affiant and make sure that you check the timeliness of the affidavit.

Please realize that I'm not a lawyer and this is only my opinion and not legal advise.

Link to comment
Share on other sites

Tried to send a PM as a Word document but couldn't attach a file.

You may have to taylor this for your particular affidavit but, you get the idea.

Formatting is a little off at the bottom due to copy and paste ..... you may have to format it according to the RCP's for your District.

MOTION TO STRIKE AFFIDAVIT

Comes now the defendant Your name, Pro Se, and makes request that this Honorable Court strike the Affidavit entered by Plaintiff labeled as "Your exhibit #" in the above captioned proceeding.

1. Plaintiff has submitted into evidence a sworn Affidavit referred to as Exhibit # in Plaintiff’s complaint (hereafter referred to as "Affidavit").

2. Said Affidavit pertains to records, acts and events that allegedly occurred between Defendant and a third party, Original Creditor. (hereafter referred to as OC).

3. Upon information and belief, at no time was the Affiant, or any of Plaintiff's employees present to witness any alleged acts or creation of records of any alleged transactions occurring between Defendant and the alleged original creditor OC.

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 in that it was not made at or near the time of the alleged acts or events.

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

7. Upon information and belief, the Affiant is not currently and has never been employed with OC, and therefore cannot have personal knowledge of how OC prepared and maintained it’s records and is unqualified to testify as to the truth of the information contained in the Affidavit.

8. Plaintiff has provided no evidence to support that they are the owner of said debt. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. Only pertinent if the affidavit refers to the purchase of the debt.

9. Defendant argues that although Affiant may be competent to attest to the authenticity and accuracy of the books and records directly under Affiant’s control; Affiant cannot attest to the authenticity nor to the accuracy of records that were allegedly transferred by a third party as Affiant has no personal knowledge of the accuracy of third party bookkeeping nor has personal knowledge of the accuracy of the alleged underlying issues. Affiant’s testimony via Affidavit must be regarded as hearsay.

10. Plaintiff’s Affidavit is insufficient as a matter of Law pursuant to MCL600.2145.

Only pertinent if affidavit is dated outside of the time limit imposed by MCL600.2145

WHEREFORE, the Defendant prays this Honorable Court that Plaintiff's Affidavit be stricken from evidence in the above action.

Respectfully submitted,

Your name

Dated: _________ 2010

By:________________________

Your name

Your address

Your city, State, Zip Code

Your phone number

Edited by InDebt2
corrected event
Link to comment
Share on other sites

BRIEF IN SUPPORT OF MOTION TO STRIKE AFFIDAVIT

It is respectfully submitted that MRE 803 specifically provides that:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(6)“Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, transactions, occurrences, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” MRE 803(6)

Since Plaintiff’s Affidavit relies on nothing other than said “records of regularly conducted activity” and has provided no other evidence supporting it’s claim, it should be regarded as hearsay.

Defendant further argues that:

MCL 600.2145 specifically provides that:

In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, 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. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. 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.MCL 600.2145

Since Plaintiff’s Affidavit is clearly dated outside the specific parameter “filing of the complaint” and Plaintiff did not “annex thereto a copy of said account” it should be deemed insufficient as a matter of law and stricken from the record in the above captioned case.

Respectfully submitted,

Dated: _________ 2010

By:________________________

Your Name

Your address

Your City, State, Zipcode

Your phone number

Link to comment
Share on other sites

ORDER FOR MOTION TO STRIKE AFFIDAVIT

WHEREFORE, in consideration of Defendant’s Motion to Strike Affidavit of Indebtedness and Owenship of Account, it is hereby ORDERED and ADJUDICATED that Defendant’s motion shall be granted

SO ORDERED this day of ___________, 2010

_______________________________________

Honorable Your judge

Your District Court

Your County

Link to comment
Share on other sites

CERTIFICATE OF SERVICE

The undersigned hereby certifies that, on November 16, 2010 a copy of the foregoing Motion To Strike Affidavit of Indebedness and Ownership of Account was deposited in the United States Certified Mail, Return Receipt Requested, postage paid, addressed to:

Your attorney

It’s address

It’s City, State, Zipe Code

_______________________________

Your Name

Your address

City, State, Zip code

Your phone number

Link to comment
Share on other sites

These are great, thanks! With ours, the affidavit is dated 9/1 and the complaint is dated 10/1 at the bottom, by the attorneys signature, and issued 10/19 by the court clerk. So that's nowhere near the 10 days.

I have a question you can probably answer. We filed our answers and our sworn denial with the court on Friday, and only sent our answers to the plaintiff. Are we supposed to also send them our sworn denial?

Link to comment
Share on other sites

These are great, thanks! With ours, the affidavit is dated 9/1 and the complaint is dated 10/1 at the bottom, by the attorneys signature, and issued 10/19 by the court clerk. So that's nowhere near the 10 days.

Clearly insufficient as a matter of law.

http://www.legislature.mi.gov/(S(e2iswkjeelxwam55ubc5fj55))/mileg.aspx?page=getobject&objectName=mcl-600-2145

I had to read it many times to get wraped around it but once you do, the plain language of the rule says what you need it to say, IF the cause of action in your case is 'account stated'.

Also, for future reference, The Good Lord forbid, the date of concern is the day the suit is recieved (filed) with the court.

Edited by InDebt2
clarification
Link to comment
Share on other sites

Feels a little inadequate compared to some of the great posts I've read here since ....

Case law is REALLY hard to find in Michigan.

Has anybody ever dealt with Blatt, Hasenmiller, Leibsker & Moore?

Any input?

I've never had to deal with them, but I feel your pain trying to find case law in MI. I searched FOREVER, with help from members of this forum, and still could not find any case law to help with my Motion to Strike their affidavit etc.

Link to comment
Share on other sites

I've never had to deal with them, but I feel your pain trying to find case law in MI. I searched FOREVER, with help from members of this forum, and still could not find any case law to help with my Motion to Strike their affidavit etc.

Thanks SingleDad.

At least I don't feel quite so inadequate in my search efforts.

It would appear that most people here in MI would rather accept default than fight.

I've read virtually all of your posts and they have been great help; I wish you the best in your efforts.

Link to comment
Share on other sites

Credit Infocenter has an article How to write a motion to strike affidavit and near the bottom of the article they reference

Stolicker v. Muller, Muller, Richmond, Harms, Meyers & Sgroi, P.C., 1:04cv733 (W.D.Mich., Sept. 8, 2005).

have not researched, don't know how to research case law, hope it might help. I am in the same situation, being sued by Midland Funding for an old cc. Very nervous and scared, but can't let it go unanswered and certainly can't afford to hire an attorney.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.