Summons and complaint been served

[Hellonwheels]

I am in Michigan. I was just served with a Summons and Complaint for debt owed.

This was with Bank of America. The collection agency is in Virgina and the lawyers are in Michigan about 10 hours from where I am.

Bank of America wrote it off as bad debt. Can I fight this with saying that I have no contract with said company? They state they have evidence but none was provided to me in the complaint. An affidavit was attached from the collection company in Virgina. Oh, and there is no court date nor was the serving ceritfied. The sheriff served me but did not sign it.

[BV80]

Look at the Complaint to see in which court you're being sued. If it were me, the first thing I'd do is read the Rules of Civil Procedure for that court and see what they say about proper service. In my state, the server does not have to sign the summons. He/she must sign a certificate of service and file it with the court. The Defendant does not have to receive a copy of the certificate of service.

Next, I'd check BofA's TL on my credit report to see if the debt has been "sold/transferred". If it has not been sold, then BofA is the Plaintiff. If it has been sold (not just charged off), then you're being sued by a JDB.

Be sure to follow the RCPs for answering the Complaint. You might also want to take a look at the following thread.

http://www.creditinfocenter.com/forums/showthread.php?t=306363&highlight=Michigan

Edited April 6, 2011 by BV80

[Hellonwheels]

Bank of america wrote it off as bad debt and sold to Portfolio Recovery Associates and they have forwarded it to lawyers in Troy, MI.

I am on work comp and soc sec disability. I own a home and two vehicles. I am paralyzed from my accident and that is the reason for the debt.

I have 22 complaints to answer.

At the bottom of the Affidavit it says "This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose". Does that statement make the affidavit invalid for a suit?

[BV80]

At the bottom of the Affidavit it says "This communication is from a debt collector and is an attempt to collect a debt. Any information obtained will be used for that purpose". Does that statement make the affidavit invalid for a suit?

No, it doesn't. They're debt collectors, and they're just covering their bases.

Is the debt still within the SOL?

I have 22 complaints to answer.

You mean 22 separate lawsuits or 22 allegations in the Complaint from Portfolio Recovery?

[Hellonwheels]

No, it doesn't. They're debt collectors, and they're just covering their bases.

Is the debt still within the SOL?

You mean 22 separate lawsuits or 22 allegations in the Complaint from Portfolio Recovery?

Still within SOL. Last payment was 12/2007. Sorry, there are 22 allegations. 4 under jurisdiction, 7 under breach of contract, 6 under Account stated, and 5 under unjust enrichment.

[BV80]

Still within SOL. Last payment was 12/2007. Sorry, there are 22 allegations. 4 under jurisdiction, 7 under breach of contract, 6 under Account stated, and 5 under unjust enrichment.

Glad it's not 22 Complaints.

Portfolio Recovery is a notorious debt buyer. I know you have no contract with them, and you can use that as an affirmative defense, but, according to the law, an assigment of debt means they the rights of the creditor are now transferred to them. That being said, they have to abide by the FDCPA. They must also prove they own the debt, prove the amount, and prove it's within the SOL.

What did the affidavit state? Breach of Contract? If they made allegations concerning a "contract", they will have to provide the applicable cardmember agreement. Information about business records will be in Michigan's Rules of Evidence.

As I stated before, read your RCPS. They'll tell you the time frame for filing an Answer to the Complaint. Also read the link I provided. There are people on these boards from Michigan who, I'm sure, will chime in to help.

Here's another link to help with your answers to the allegations. Be sure that your answers include "admit" or "deny".

http://www.creditinfocenter.com/forums/showthread.php?p=1097491#post1097491

This next link will help provide you with affirmative defenses:

http://www.creditinfocenter.com/forums/showthread.php?t=252142

[Hellonwheels]

Thank you for the information. The affidavit is just saying that PRA has bought the account from BOA and has by all rights to collect on the debt and that the guy who has signed it can testify to the matters. He is an employee fo PRA.

[Linda7]

What is the ballpark figure they are suing you for?

Also, when you check your credit report like BV said, also look for the following inaccuracies. Look at any statement you have or they sent with the complaint, then compare the account numbers with the BOA listing on your credit report "and" also with the letters Portfolio sent. Are they all the same numbers or are any of them different?

[Linda7]

Thank you for the information. The affidavit is just saying that PRA has bought the account from BOA and has by all rights to collect on the debt and that the guy who has signed it can testify to the matters. He is an employee fo PRA.

Make sure you also file a motion to strike any affidavit by this employee who works for PRA. He cannot be a witness to any agreement you had with BOA as he was not an employee of BOA.

[BV80]

Make sure you also file a motion to strike any affidavit by this employee who works for PRA. He cannot be a witness to any agreement you had with BOA as he was not an employee of BOA.

Can that affidavit be stricken? I know the affiant is not an employee of BofA, but he's not attesting to the agreement the OP had with the OC. His statement is that he knows PRA bought the account from BofA. Affidavits are supposed to be based upon personal knowledge. Being an employee of PRA would allow him to have knowledge of PRA's procedures. NOT the OC's procedures, but he would (supposedly) have knowledge of PRA's procedures, and that's what the affiant attested to in the affidavit.

Don't get upset with me! I'm not trying to help PRA. I'm trying to look at it from the judge's viewpoint. If the OP were to move to strike the affidavit and the motion was denied, what happens if they provide an affidavit with the so-called "evidence"? Would the judge be inclined to grant it considering he denied the first one? If it were me, I wait on the motion to strike and save it for an affidavit they might provide with the evidence. That's where the "personal knowledge" falls short.

[Guest usctrojanalum]

Dispute the balance and the charges, and the interest rate. Therefore when someone from PRA tries to testify as to having knowledge about those areas you can slam them for not being able to know because they were not employed by BOA and do not have the knowledge required to establish the balance and the interest/finance charges. File your answer denying or admitting the allegations in the complaint and then properly plead affirmative defenses.

[Hellonwheels]

What is the ballpark figure they are suing you for?

Also, when you check your credit report like BV said, also look for the following inaccuracies. Look at any statement you have or they sent with the complaint, then compare the account numbers with the BOA listing on your credit report "and" also with the letters Portfolio sent. Are they all the same numbers or are any of them different?

They are suing me for a bit over $15,000 plus court costs and lawyer fees. They sent no supporting documents. Only the complaint and affidavit was with the summons.

The account number matches my credit report.

One thing that is different is that BOA has my account type as revolving and PRA has it as an open account. Dont know if that matters.

[Hellonwheels]

Dispute the balance and the charges, and the interest rate. Therefore when someone from PRA tries to testify as to having knowledge about those areas you can slam them for not being able to know because they were not employed by BOA and do not have the knowledge required to establish the balance and the interest/finance charges. File your answer denying or admitting the allegations in the complaint and then properly plead affirmative defenses.

My boyfriend was a paralegal but has not studied or researched law in over 10years. He suggested determining the legality of a UCC defense (the debt has been discharged, the collection agency does not have charge-back warrant, etc.), but is unsure of the current status of such a strategy. He said he had read conflicting case law, some judges accepted it as valid and ruled in the defendants' favor, while other judges ruled it a fraudulent defense. Any knowledge or opinions? Thank you.

[Linda7]

Can that affidavit be stricken? I know the affiant is not an employee of BofA, but he's not attesting to the agreement the OP had with the OC. His statement is that he knows PRA bought the account from BofA. Affidavits are supposed to be based upon personal knowledge. Being an employee of PRA would allow him to have knowledge of PRA's procedures. NOT the OC's procedures, but he would (supposedly) have knowledge of PRA's procedures, and that's what the affiant attested to in the affidavit.

Don't get upset with me! I'm not trying to help PRA. I'm trying to look at it from the judge's viewpoint. If the OP were to move to strike the affidavit and the motion was denied, what happens if they provide an affidavit with the so-called "evidence"? Would the judge be inclined to grant it considering he denied the first one? If it were me, I wait on the motion to strike and save it for an affidavit they might provide with the evidence. That's where the "personal knowledge" falls short.

No, BV you are correct - I was on my way out to lunch and didn't read the whole post. As long as they stick to what they have actual knowledge of, it is acceptable. However, don't let it stand as their evidence of the original debt with the original OC. They must show a complete chain of custody, beginning with the debt being with the OC.

[Hellonwheels]

Going to see a lawyer today. Just dont know what to do at this point. He said he would help file the answer and explore possible bankruptcy. My total debt is around 29,000 from multiple accounts. The BofA being the largest, then another one for a little over 9,000 and a couple of smaller ones that I am not really worried about. I dont want to lose my house or vehicles. Not sure which way to go.

If I fight this debt and lose and have a judgement against me, can I then claim bankruptcy? or do I have to do bankruptcy before the judgement?

[BV80]

If I fight this debt and lose and have a judgement against me, can I then claim bankruptcy? or do I have to do bankruptcy before the judgement?

That's a question for the attorney. If you can come to a settlement agreement that you can afford, either yourself or through arbitration, you may not have to go through bk.

Edited April 7, 2011 by BV80

[Hellonwheels]

I cant afford to settle for anything. My wages are 50% of what they were before my injury.

Lawyer said I can still claim bankrupcy after the judgement. He informed me I qualify for Chapter 7. He said to send the answer and see how it goes. See if they actually have any evidence and can prove it. So I guess I do what I can on my own til I cant do anymore then claim bankruptcy. I know after this one that the other collection agency will also probably file a summons and complaint. I hope I can beat the both of them, but I doubt it as the second one is held by Asset Associates and they are known for winning apparantly. He also told me that things have changed and 80 to 90% of the collecton agencies have the contracts and statements now. Plus, in Michigan there does not have to be a witness from the OC in court. All of this is overwhelming.

[BV80]

He also told me that things have changed and 80 to 90% of the collecton agencies have the contracts and statements now.

They may have some statements and cardmember agreements, but those documents don't get them anywhere if they can't prove ownership of the account.

Did you mean Asset Recovery?

[Hellonwheels]

They may have some statements and cardmember agreements, but those documents don't get them anywhere if they can't prove ownership of the account.

Did you mean Asset Recovery?

Sorry it is Asset Acceptance that has the 9,000 debt.

[SingleDadJames]

First It would probably help if you could post some more details about the complaint and their allegations if you haven't done so already. You don't need to post personal identifying info. You can give us a general idea, ballpark amounts etc.

One important question: Does the complaint mention anything about "account stated" anywhere? Sometimes it looks something like "Plaintiff's assignor has completed performance and rendered account stated" etc. Look at it closely and if it does then there are additional steps you to need to take to cover your rear. EDIT: DUH..I just reread the thread and see you mention account stated.

You probably need to file a counter-affidavit to deny the debt and counter their account stated allegations. (See MCL 600.2145)

In MI a plaintiff can file a claim under an account stated theory with little more proof than an affidavit from someone (ok ANYONE) claiming you owe such and such amount and the complaint. If you fail to properly respond in these cases they can get you by default.

Right now it sounds like the affidavit you mentioned was more an affidavit of ownership because you didn't indicate it includes any alleged amount due etc. or any reference to the affiant claiming to have reviewed the records associated with the account. That being said you still might need to submit your own affidavit.

Your FIRST step is to file an answer (and the affidavit if needed) if you wish to fight this. Since you were served personally in MI you have 21 days from the date you were served to file your answer. Keep in mind this is 21 CALENDAR days. NOT business days. Since prolonging the entire process is probably going to be of benefit to you I would drag my heels and use ALL of the time allowed to make sure you do things correctly.

You likely won't hear anything from the court until you file an answer. Then you'll probably receive either a notice of a first "status conference" or something regarding mediation.

You can buy yourself some time if you respond properly and use the time permitted to you.

Also if the plaintiff's attorney is truly 10 hours away from the court in your county you have yet another advantage. Although they have an option of trying to appear by phone or by employing a rent a lawyer to appear for them early on...it still makes things a little more difficult for them.

Edited April 8, 2011 by SingleDadJames

[SingleDadJames]

He also told me that things have changed and 80 to 90% of the collecton agencies have the contracts and statements now. Plus, in Michigan there does not have to be a witness from the OC in court. All of this is overwhelming.

I'm no attorney..and I'm certainly no expert but I don't know if I agree with all of that!

Keep in mind if you talk to 3 or 4 attorneys you are likely to get 3 or 4 different points of view. Also...if this attorney is going to help you "explore" or file bankruptcy, then giving you any advice to help you win this case obviously wouldn't be in their best financial interest.

[SingleDadJames]

One last bit of info...

The Michigan Rules of Civil Procedure can be found here:

http://coa.courts.mi.gov/rules/documents/1chapter2civilprocedure.pdf

You will definitely need to get familiar with them if you are going to go it alone.

Also a great general info primer on fighting debt collection/cc cases in MI can be found here:

http://www.elderlawofmi.org/file_download/8bb661dc-d0b8-4e49-b1bd-b8d04f787316

You mention your income was from SS and Work-Comp. Both of these are protected from garnishment should a judgment be entered against you. In MI the first $500 in deposits in a savings account cannot be garnished either (unless of course you owe the financial institution directly). This all certainly makes ever getting a dime from you post judgement even more difficult for them. I wouldn't be shy in pointing that out to them later on when the time is right.

Edited April 8, 2011 by SingleDadJames

[Hellonwheels]

Here is the comlaint and my answers so far. Please feel free to tweak and give info I think I am in for the ride of my life on this.

Now comes Plantiff PRA assignee of FIA Card Services/bank of ("plantiff") by and through its attorneys, xxxxxxxxxx and for its complaint against defendant xxxxx defendent states as follows:

Jurisdiction

1. That pursuant to MCR 2.133©(2), there is no other pending or resovlved civil action arisign out to the transactions or coocurrences alleged in this complaint.

1. Deny. Defendant is not a lawyer, defendant does not know about jurisdiction.

2. That the plantiff is doing busines in the city of Norfolk, State of VA.

2. Deny. Defendant has no knowledge of Plantiff.

3. That upon infromation and belief, defendant is domiciled in the city xxxxxxx.

3. Admit. Defendant currently resides in xxxxxxxI.

4. That the amount in contraversy is $xx,xxx.xx, exclusive of court costs and attorneys's fees.

4. Deny. Defendant has no knowledge of alleged debt.

Count I

Breach of Contract

5. The plantiff incorporates by reference paragraphs 1 through 4.

5. Deny in part. Defendant denies paragraphs 1, 2, and 4. Admit to paragraph 3.

6. that on or about xxxxxx, defendant entered into a conract with plantiff's assignor for goods sold and delivered and/or services rendered on open account, Account number xxxxxxxxxx

6. Deny. Defendant has no contract with Plantiffs Assignor.

7. That a copy fo the contract is attached or, alternatively, the contract is in the possession of the defendant pursuant to MCR 2.113(F)(1)( (see attached exhibits).

7. Deny. There is no attached contract nor is contract in Defendants possession.

8. The contract was entered into for valid consideration and lawful and proper purposes and is legally enforecable in all respects.

8. Deny. Defendant has no knowledge of contract with Plantiff.

9. The plantiff has performed all of its obligations and fulfilled all of tis conditions precedent under the terms of the contract.

9. Deny. Defendant has no knowledge of contract with Plantiff.

10. That defendant has, without excuse, defaulted upon and materially breached the contract.

10. Deny. Defendant has no knowledge of contract with Plantiff.

11. That as a result of defendant's breach, plantiff has suffered damages in the sum of xxxxxxx ( see attached exhibits),

11. Deny. Facts in Count. No Exhibits attached.

Count II

Account Stated

12.The Plaintiff incorporates by reference paragraphs 1 through 11

12. Deny in part. Defendant denies paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, and 11. Admits to paragraph 3.

13. The plaintiff and defendant have consented to sa sume as the credit balance due from one another on the account.

13. Deny. Defendant has consented to nothing.

14. That a defendant has received periodic billing statements from plantiff to which defendant has made payment(s) towards and /or not objected to.

14. Deny. Defendant has no knowledge of receiveing billings, has made no payments to Plantiff.

15. That defendant's payments and/or failure to question the state of the account within a reasonable amount of time constitutes an admission of correctness.

15. Deny. Defendant has made no payment to plantiff. Defendant does not have a contract with Plantiff to question.

16. The defendant has been given all set-offs, credits and/or allowances on teh account and is idebted to plantiff in the amount of $xx,xxx.xx (see attached Exhibits)

16. Deny. Defendant denies any knowledge of plantiffs statement of facts. Defendant further notes that no exhibits are attached.

17. That a statement of the account and an affidavit verifying the account are attached to this complaint and incorporated by reference (see attached exhibits)

17. Deny. Defendant has no knowledge of account.

Wherefor plantiff prays that judgement be entered in its favor against defendant in the amoutn of $xx,xxx.xx including pre-suit interest of $x,xxx.xx as of xxxxxx plus costs and attorney's fees to which plantiff is legally entitled to.

Count III

Unjust Enrichment

18. That plantiff incorporates by reference paragraphs 1 through 17.

18. Deny in part. Defendant denies paragraphs 1, 2, 4, 5,6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17. Admit to paragraph 3.

19. That, alternatively, defendant has received a benefit from plantiff in the amount of $xx,xxx.xx

19. Deny. Defendant has not received any benefit from Plantiff.

20. That defendant has been unjustly enriched at the expense of plantiff.

20. Deny. Defendant denies being unjustly enriched at the expense of Plantiff.

21. That defendant is required to make restitution to plantiff.

21. Deny. Defendant denies having to make restitution to Plantiff.

That it is inequitable for defendant to retain the benefit.

22. Deny. Defendant denies having obtained benefit from Plantiff.

Wherefor plantiff prays that judgement be entered in its favor against defendant in the amoutn of $xx,xxx.xx including pre-suit interest of $x,xxx.xx as of xxxxxx plus costs and attorney's fees to which plantiff is legally entitled to.

[Hellonwheels]

You mention your income was from SS and Work-Comp. Both of these are protected from garnishment should a judgment be entered against you. In MI the first $500 in deposits in a savings account cannot be garnished either (unless of course you owe the financial institution directly). This all certainly makes ever getting a dime from you post judgement even more difficult for them. I wouldn't be shy in pointing that out to them later on when the time is right.

[Hellonwheels]

The affidavit that is attached is from an emplyee from PRA saying he is an employee that can testify to the fact that the account was purchased from fia carservices/bank of america/mbna account seller. Gives amounts and such.