Needing assistance forming an answer to a summons for CC in Michigan

[tuekee]

Recently I was served a summons from an old credit card and after reading tons of posts I have decided to answer the summons in an attempt to fight it. The Plaintiff is LVNV LLC and has Shermeta, Adams & Von Allmen as attorneys.

First I have never recieved anything from SAVA. I do not believe I have from LVNV directly, however I did recieve something from another lawyer about the account.

I did contact a lawyer who stated I should send a verification to both SAVA and LVNV as well as file a response. I am having a very hard time doing that. Here is the complaint I recieved with the summons.

_________________________________________________

1. Jerisdiction and venue are proper in this court (obvious)

2. Defendant entered into an agreement with Plaintiff's assignor, credit one bank, on [date] with account number [number]

3. Upon information and belief, defendant has possession of the contract upon which this claiim is based. (shouldn't they as well?)

4. The account was duly assigned, in the normal course of business, to the plaintiff.

5. Plaintiff and/or its assignor completed performance under the terms and conditions of the account (not sure what this means)

6. Defendant has defaulted under the terms and conditions of the account by failing to pay as promised.

7. There is a presently due and owing the sum of [amount]

WHEREFORE, Plaintiff prays for judgement in the amount of [amount] plus costs, interst and attorney fees.

I am going to post my response to this thread. Basically I am unsure on the verbage to use and am looking for some clarifications

[tuekee]

here's what i have thus far

______________________________

STATE OF MICHIGAN

IN THE DISTRICT COURT

Attorney to Plantiff

SHERMETA, ADAMAS & VON ALLMEN, P.C.

P.O. Box 5016

Rochester, Michigan 48308

(248) 519-1700

LVNV FUNDING LLC

Vs.

ANSWER TO COMPLAINT

[my name]

[address]

DEFENDANT

___________________________________________________

The DEFENDANT, [my name] answers the complaint of the plaintiff, LVNV FUNDING LLC, in this action as follows;

1. The defendant affirms jurisdiction and venue are proper in this court.

2. The defendant denies section two

3. The defendant denies having possession of the contract upon which this claim is made.

4.

5.

6.

[tuekee]

STATE OF MICHIGAN

IN THE *** DISTRICT COURT

Attorney to Plantiff

lawyers name

address

phone number

LVNV FUNDING LLC

Vs.

tuekee

[address]

DEFENDANT

___________________________________________________

Comes now the Defendant, tuekee, Pro Se, to answer the following paragraphs of Plaintiff’s Complaint:

I. ANSWERS:

1. In response to paragraph #1, The Defendant affirms jurisdiction and venue are proper in this court.

2. In response to paragraph #2, The Defendant denies the allegations contained therein; specifically, that Defendant entered into an agreement with [credit card] N.A. on [date]. No agreement has been submitted into the record to evidence the allegation and leaves Plaintiff to provide proof. Defendant demands strict proof thereof.

3. In response to paragraph #3, The Defendant denies having possession of the contract upon which this claim is made. No signed contract has been submitted into the record to evidence and leaves Plaintiff to provide proof. Defendant demands strict proof thereof.

4. In response to paragraph #4, 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.

5. In response to paragraph #5, Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof thereof.

6. In response to paragraph #6, Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof thereof.

7. In response to paragraph #7, Defendant denies the allegations and 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:

1. 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.

2. The Court would unjustly enrich the Plaintiff by granting the relief sought herein. Plaintiffs alleged damages are limited to real or actual damages only.

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

4. The Statute of Frauds bars the action. Defendant has no written, oral or implied contract with Plaintiff.

5. 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.

6. Lack of Standing. The Plaintiff has shown no proof that they are the owners of the alleged account and the real party of interest.

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.

[BV80]

#5 of your defenses is the same as Lack of Privity.

If it were me, I'd throw in the Statute of Limitations. Make them prove the debt is within the SOL.

[antiquedave]

They have also referenced an assignment agreement in #4 and did not provide it with the complaint so I would add that

"the plaintiff's complaint indicates the existence of an assignment and sale agreement that was not attached to the complaint and defendant requests copies of all assignment and sale agreements pertaning to the alleged account Defendant demands strict proof thereof."

It seems to me the michigan rules said something about if it is referenced it needs to be included so I would really want to get those documents. I'll look for it.

I'd ask a consumer attorney if I had a case with the manner you were sued without any dunning letter and see if they wanted to initiate a suit or if you should include it as a Counter Claim.

[tuekee]

Thanks you two. If it wasn't for forums such as this, I would be lost. I will be adding your suggestions.

antiqueDave- at this point I am waiting to hear back from the lawyer to see if I have anything to go on.

[admin]

As for #1, I would say

"Denied. Defendant is responding pro se and not a lawyer. Defendant is without the legal training to determine whether or not this jurisdiction is proper. This calls for guesswork on part of Defendant"

[tuekee]

First off thanks for all the help. I sent in the response and now have to appear in court on 5/9. I was wondering if anyone could give me an idea of what to expect. I recieved a letter from the SAVA lawyer stating to contact them to try to settle. Should I contact them? What do I need to take to court? Any help would be appreciated

[BV80]

First off thanks for all the help. I sent in the response and now have to appear in court on 5/9. I was wondering if anyone could give me an idea of what to expect. I recieved a letter from the SAVA lawyer stating to contact them to try to settle. Should I contact them? What do I need to take to court? Any help would be appreciated

If your court posts cases online, I would look for upcoming cases with LVNV or with any JDB who's being represented by the same law firm, and attend the hearings. Preferably choose cases where the Defendant is represented by an attorney. Sitting in on the hearings would give you an idea of what to expect and how to prepare. Hopefully you can look up cases by using the name of the law firm. If not, here's some other JDBs the attorney might represent:

Midland

Unifund

Cavalry Portfolio

Portfolio Acquisitions

Cach

[funrun]

Hi everyone, I am having the EXACT same situation with Shermeta Adams and was wondering is anyone could give me any direction or insight. I filed my Answer already, wondering what to expect next and if there is any good advice anyone is willing to share. Thanks in advance!

[bmc100]

Michigan Rules of civil procedure state in a responsive pleading to admit, deny or lacks knowledge or information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial. If you deny, then you have to state the reasoning of your denial. You can use defenses, Michigan Complied Laws or Rules of CP as reasoning based upon the complaint and any defects it might have.

1. The Plaintiff failed to state a claim upon which relief can be granted. The complaint as it stands lacks a legal basis to recover alleged damages. Under MCR 2.111((1), the complaint lacks a statement of facts, without repetition or which the pleader and specific allegations necessary to inform the adverse party is called on to defend.

2. The complaint does not comply with MCR 2.113(, the written instrument needs to be attached to the complaint if it is not in the possession of the defendant or of public record as stated in the Defendant’s Answer. The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account.

3. The Plaintiff cannot rely upon MCL 600.2145 “Account Stated” or Open Account. MCL 600.2145 specifically states that a copy of said account, 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. The Defendant requests any future claim of Account Stated to not be admissible to this court, future affidavits are not admissible as evidence since they will not be attached to the complaint.

4. The Plaintiff does not comply with Truth In Lending Act 15 U.S.C. 1643(, for the Plaintiff has the burden of proof to show that all transactions were made or authorized by the Defendant and the interest and finance charges are correct.

5. The complaint violated the Statute of Frauds in order to prove a breach of contract, the agreement has to be in writing or show a record detailing the date and circumstances of the request for credit, Truth In Lending Act 15 U.S.C. 1642. The Plaintiff failed to comply with this requirement.

6. The Plaintiff has a Lack of Standing. The Plaintiff has failed to establish proof of ownership of the alleged account and has not proven a standing to sue. MCR 2.112(A)(2). The Defendant is under the impression that GE Money Bank sold the alleged account to a junk debt buyer.

7. the alleged agreement is null and void by reason of non-delivery. The Plaintiff failed to supply the alleged agreement to the Defendant.

You dont have to worry about saying section 2....your answers should numerically match the line items in the complaint.

There should also be an affidavit attached to he complaint, if not use MCL 600.2145.

[bmc100]

They have also referenced an assignment agreement in #4 and did not provide it with the complaint so I would add that

"the plaintiff's complaint indicates the existence of an assignment and sale agreement that was not attached to the complaint and defendant requests copies of all assignment and sale agreements pertaning to the alleged account Defendant demands strict proof thereof."

It seems to me the michigan rules said something about if it is referenced it needs to be included so I would really want to get those documents. I'll look for it.

I'd ask a consumer attorney if I had a case with the manner you were sued without any dunning letter and see if they wanted to initiate a suit or if you should include it as a Counter Claim.

It is MCR 2.113( is the rule you are referring to.

[wewe]

I recently received a summons for an old credit card debt, and I'm in the process of answering it.  I do not have to appear in court, only answer at this point. Here is my complaint:

1.    My name and address

2.    The defendant opened an account agreeing to make monthly payments for purchases charged to the account

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

4.    Plaintiff has completed performance and rendered an account stated in the of .......

5.    The 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 .....

 

Here is my answer I have drafted.  After all of the legal stuff at the top this is my answer:

 

1.   The defendant affirms.

2.   The defendant denies. No agreement has been submitted into the record to evidence the allegation and leaves Plaintiff to provide proof. The plaintiff's complaint indicates the existence of an assignment and sale agreement that was not attached to the complaint and defendant requests copies of all assignment and sale agreements pertaining to the alleged account.  The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account.  Defendant demands strict proof thereof. The Plaintiff has failed to establish proof of ownership of the alleged account and has not proven a standing to sue.

3.   No agreement has been submitted into the record to evidence the allegation.  The exhibit provided is based on hearsay.

4.   Defendant has insufficient information to admit or deny, and therefore must respectfully deny. Defendant demands strict proof thereof.

5.   Defendant has insufficient information to admit or deny, and therefore must respectfully deny.   

    Defendant demands strict proof thereof.

 

My affirmative defenses:

1.  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 roving the amount of the alleged debt.

2.  The court would unjustly enrich the plaintiff by granting the relief sought herein.  Plaintiffs alleged damages are limited to real and actual damages only.

 

Wherefore the defendant asks the court for judgment:  a. dismissing the complaint herein with prejudice.  

 

Does this look like a reasonable answer to the complaint?  They attached an affidavit but nothing else.  Also in the affidavit it does state that my account number was 1234123412341234 prior to the charge off, and subsequently it has changed and is currently 1235123512351235, for the debt she owes.  Does this mean anything?

 

Thank you so much for your help.

[bmc100]

wewe, create your own thread in "Is there a lawyer in the house" and post the details of your case.