Going to court tomorrow for mediation

[bbell]

Hi,

This is my first time posting on this forum although I did find a lot of useful information here when my husband was first served in December - a big thank you for that:) For reference, I am in Michigan.

I filed an Answer, Affirmative Defenses & CC in response to the S&C my husband rec'd. I read the court rules and as I understood them (and from what I remember from my paralegal days within the collection firm that is now suing us), the judge has to allow/order discovery - usually done at a scheduling conference. I waited for an answer to my CC and/or a scheduling conf. notice from the court but the CA never responded to my CC and the court only sent a notice scheduling mandatory mediation.

I'm not sure what to do at this point.... I think I should have just filed a default judgment as to the CC and a motion for summary as to the original complaint but I didn't - mostly out of uneasiness and a feeling of intimidation (I am really mad at myself for feeling this way). I didn't want to make the wrong move so I kept second-guessing myself on the next step and time just kept running while I was busy being indecisive:oops:

So, we are off to mediation in the morning now and I am not sure what to take with me... should I prepare discovery to take with me? Prepare a Motion for Summary Dismissal/Judgment on the off-chance the attorney doesn't show up to mediation and then walk over and file the motion with the court?

The fact that the CA didn't file a response to the CC is not surprising - as I said, I used to work in the office and this particular firm operates in heavy volume and tends to shy away from anything requiring too much work. I should add that the CA never sent me an initial letter - the first written contact they made was the S&C (phone contact is possible but my husband does not answer calls from #'s he doesn't recognize) - so I could not go through the DV process but addressed that in the Answer & CC. This debt has been sold multiple times and at one point 3 different JDB were claiming "ownership" at the same time. From personal experience I know there is a 99.9% chance they don't have a Notice of Assignment - although the original Complaint refers to one and claims it is "attached" when all that was attached was a bunch of monthly statements.

Thanks in advance for your help!

[Guest usctrojanalum]

Are counterclaims required to be answered where you are from? Where I am from all counter claims are automatically deemed denied and no response is necessary - is that a possibility?

[bbell]

According to MI Court Rules [MCR 2.110(], a counter-claim requires a response.

Do you think I could file a DJ in the morning prior to the mediation appt or would that not do me any good?

I really don't have any experience with Mediation - I never worked on any cases where the court ordered it - so I am not sure how it works and what the purpose is in a case like this... I mean, the Plaintiff hasn't even bothered to file a response to the CC and seems pretty unmotivated to do anything at all once this moved past being a default case.

[Guest usctrojanalum]

If MCR allows you to request a DJ you can try that, but you would not be able to get a clerks default judgment because the amount you are seeking is not a "sum certain." the type of judgment you would be awarded would have to be after a trial for damages is held.

[bbell]

If MCR allows you to request a DJ you can try that, but you would not be able to get a clerks default judgment because the amount you are seeking is not a "sum certain." the type of judgment you would be awarded would have to be after a trial for damages is held.

I asked for damages in the amt of $2158 + costs (didn't incur any) + reasonable atty fees (didn't incur any)... the counterclaim was based on Plaintiff's failure to send an initial demand letter for us to respond to - this FDCPA violation led to missed time at work for both of us to prepare response pleadings and appear in court.

Since the damages are specific in the CC, I should be able to use the clerk's DJ, correct?

[bbell]

So tomorrow, prior to attending the mediation, I want to file the Motion for Summary below and a DJ as to the counter-claim....

My only question is if I can file these motions if the court has ordered mediation? Although I guess it can't hurt to file them.... I just don't want to tip my hand and file them prematurely only to find out I have to wait till mediation is over.

DEFENDANT’S MOTION FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116©(7),(8)

NOW COMES Defendant, *******, Pro Se, and for his Motion for Summary Disposition states as follows:

1. On October 23, 2010, Plaintiff filed a complaint with this honorable court in the above-captioned action.

2. The Plaintiff’s standing, as outlined in the caption of the complaint, is based on a written instrument.

3. Paragraphs 1, 2 and 3 of Plaintiff’s Complaint are based on a written instrument.

4. Plaintiff failed to attach the written instrument pursuant to MCR 2.113(F)(1).

WHEREFORE, Defendant requests that this Honorable Court grant Defendant’s Motion for Summary Disposition and Order the Complaint to be Dismissed Without Prejudice, pending the filing of an Amended Complaint by the Plaintiff that complies with MCR 2.113(F)(1) within thirty days, and for Dismissal With Prejudice for failure to file an Amended Complaint complying with MCR 2.113(F)(1) within thirty days.

Respectfully Submitted,

______________________________

****** ******

In Pro Per

123 Pro Per Ave

MyTown, MI 12345

Dated: The 1st of Never

Edited March 15, 2011 by bbell