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I have been reading reading and more reading about how to respond to a summons from midland. This is not my first go around with a lawsuit but the first time I am going to stand up and fight, up until now I folded before court and settled with the CA. I have two main questions:

1. Do I need to file an affidavit as well? Another site that I go to for answers says that I should file my own affidavit- just wondering if this is necessary?

2. Do I file my motion to strike the affidavit with my answers to their summons or should that be filed after I have submitted my answer? I wonder that as I was served last month from Portfolio (yea I'm having a great month! :cool:) and did not know you could file a MTS on the affidavit and wonder if I can still file one for that lawsuit as well.

I am in Michigan if that makes any difference, I need to file my answer ASAP as my 21 days slipped away fast. Thanks for any help!!

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I have been reading reading and more reading about how to respond to a summons from midland. This is not my first go around with a lawsuit but the first time I am going to stand up and fight, up until now I folded before court and settled with the CA. I have two main questions:

1. Do I need to file an affidavit as well? Another site that I go to for answers says that I should file my own affidavit- just wondering if this is necessary?

2. Do I file my motion to strike the affidavit with my answers to their summons or should that be filed after I have submitted my answer? I wonder that as I was served last month from Portfolio (yea I'm having a great month! :cool:) and did not know you could file a MTS on the affidavit and wonder if I can still file one for that lawsuit as well.

I am in Michigan if that makes any difference, I need to file my answer ASAP as my 21 days slipped away fast. Thanks for any help!!

While I have no concrete responses for your questions, I just wanted to say how impressive it is that you are choosing to stand up and fight this time around...good for you! I know someone will come along and offer you great advice.

Best of luck on your case!

tigger

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Cookie74, I ran across the below and remebered your thread. I am not sure if it is still current law or fits your situation, but is a reference and place to start. Good luck.

600.2145 Open account or account stated; proof, counterclaim.

Sec. 2145.

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.

History: 1961, Act 236, Eff. Jan. 1, 1963

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Crap..I mailed yesterday without it, I suppose that I can go next week and have it noterized and mail out? I included a motion to strike their affidavit (that is one word that I would have never believe I could spell without looking it up) I guess I should file my own.

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If they sent an affidavit with the complaint I'd send a counter affidavit denying the debt.

Next time I get sued I plan on sending Interrogatories and Production of Documents requests as well with the pleading.

Do you have any counter claims? You have 12 months to file them so if they messed up that can give you some leverage, also look very closely at the affidavit and compare it to the Brent V Midland case that addressed the false affidavit they were using.

My experience has been that almost every collection agency that contacted me violated FDCPA in some fashion and had I documented correctly I could have probably gotten every debt I owe wiped out at no cost out of my pocket.

look for posts by singledadjames he won his suit and I think it was Midland too.

I you want to talk about FDCPA violations PM me,

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wow, I just skimmed Brent v Midland, why oh why do they continue to use false affidavits? How many times do they need to be sued or have cases tossed out because they use them???

I will have my affidavit noterized and mail it out on Monday. I'm not sure if I would have any counter claims to anything, what should I look for? I do not have a current copy of my credit report (can't stand to even look at it, depresses me to no end!) but I can get a hold of that to look for any discrepancies.

I'm learning more and more how to fight these people every day and could just kick myself for settling the other lawsuits!

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wow, I just skimmed Brent v Midland, why oh why do they continue to use false affidavits? How many times do they need to be sued or have cases tossed out because they use them???

I will have my affidavit noterized and mail it out on Monday. I'm not sure if I would have any counter claims to anything, what should I look for? I do not have a current copy of my credit report (can't stand to even look at it, depresses me to no end!) but I can get a hold of that to look for any discrepancies.

I'm learning more and more how to fight these people every day and could just kick myself for settling the other lawsuits!

Phone calls could create a violation depending on what they said, or the type of messages they left or if anyone else heard the calls, sometimes the collection letter itself violates the law by the way it is structured and worded, the affidavit as you see in brent v midland can be a violation

lots of ways for them to mess up and violate the law,

did you keep copies of everything?

Do you think you have other crditors that are or will also come after you?

I've been putting up Michigan Specific information here

US DEBT WEB A Grassroots Approach

Edited by antiquedave
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I'm in the middle of two suits right now one with midland and one with portfolio- which I need to start another thread on because their answer to my answer and has me scratching my head, all they did was deny all of my answers:confused:. I don't recall if they called, I don't answer the house phone much as all the calls I get are collections. I've been going through all my papers to see if this is the first agency to have this debt or if it has been passed around. I find a lot of these CAs get scared off when I DV them.

I want to get all of my paperwork a little more organized this weekend, its pretty sad that I need to start a three ring binder to keep all of this straight!

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I'm in the middle of two suits right now one with midland and one with portfolio- which I need to start another thread on because their answer to my answer and has me scratching my head, all they did was deny all of my answers:confused:. I don't recall if they called, I don't answer the house phone much as all the calls I get are collections. I've been going through all my papers to see if this is the first agency to have this debt or if it has been passed around. I find a lot of these CAs get scared off when I DV them.

I want to get all of my paperwork a little more organized this weekend, its pretty sad that I need to start a three ring binder to keep all of this straight!

I now have five 3 ring binders and a box of papers that weigh 20 pounds and I can't count the documents and pdf's I have saved on the thumb drives.

Of course Portfolio will deny your answers it doesn't matter what you say they will be contrary that is what they are being paid for, it does not mean that they are right, even if what you say is 110% correct legally they are going to find a way to undercut it and try to get it excluded somehow.

I have a current FDCPA lawsuit against a debt collector based 100% on the letter that they sent, and have settled with 2 for calling after the Cease and Desist and validation letter.

I would suggest that you log all of your calls, who they are from, what number they called, whether they have called your cell phone, the time, and let your answering machine record all of the messages.

I take a digital picture of the phone display on every call I get,

get your letters together and organized, I'm betting you have some violations that you can take action on.

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Funny you say something about logging phone calls... just got a call at work from some random CA wanting all kinds of info and how I wanted to resolve the matter blah blah blah, instructed the chicky to send me something "oh we sent something on the 10th' REALLY? Did you put it on the back of a turtle? She asked for home phone number and I know they have called me there as I google all the numbers that I don't recognize on the caller id, that made her pause because I don't believe they left a message, long story short she wouldn't shut up and I ended up hanging up on her.

5 three ring binders! Guess I know what I'll be doing this weekend, besides stealing office supplies. Although it's not really stealing since they are mine already!

I'm not sure what to do next with the Portfolio answer, should I send a motion for discovery? Also can I still send then a motion to strike the affidavit even though I have already answered? Is there a time limit?

Thanks!

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you don't have to put up with them calling you at work

if it were me I would be sending every one of the collection agencies that call you a vaildation of debt letter and a cease and desist on the phone calls,

everything in court is on a timetable becoming familiar with the Michigan rules of civil procedure will help you figure out what those are.

We can't do anything that would be considered practicing law, we talk about it on the forum but we don't practice law and cannot tell you what to do, when you want answers I know it is hard.

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  • 4 weeks later...

So midland and their attorney responded to my answer and they are trying to say

1) that they did not have to attach the original contract quoted case law- Auto club insurance association vs. state farm ins co., 221 mich app 154;561 NW2d 445 (1997), ehresman vs bultynck & company, p.c., 203 mich. app. 350:511 nw2d 724 (1994)- which looks like it deals with employer/employee arbitration?, bearslee vs horton, 1855 wl 2190 (mich), people of the state of michigan vs. hester, 24 mich. app 475, 180 nw2d 360 (1970)

2) they are also stating that the affidavit is not hearsay and it falls under the self-authentication documents exception MRE 902(11) which states- Certified records of regularly conducted activity. The original or a dupicate of a record, whether domestic or foreign, or regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person cerifying that

(A) the record was made at or neart the time of the occuraence of the matters set forth by, or from information transmitted by, a person with knowledge of those amtter:

(B) the record was kept in the course of the regularly conducted business activity; and

© it was the regular practice of the business activity to make record.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection suffciently in advance of theor offer into evidence to provide a adverse party with a fair opportunity to challenge them.

Are they just trying to bury me with a load of case law hoping I won't show up? They are also tossing around the assignor/assignee and that the matter has been properly assigned and they have all the rights that the OC had. The affidavit that was attached are used regularly and considered to be proper and sufficient evidence and of course they want my motion denied and costs and sanctions assessed against me because they had to respond...boo hoo!

What is my next step? I have never taken a suit this far I always buckle and settle but if I still have a leg to stand on I want to fight.

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So midland and their attorney responded to my answer and they are trying to say

1) that they did not have to attach the original contract quoted case law- Auto club insurance association vs. state farm ins co., 221 mich app 154;561 NW2d 445 (1997), ehresman vs bultynck & company, p.c., 203 mich. app. 350:511 nw2d 724 (1994)- which looks like it deals with employer/employee arbitration?, bearslee vs horton, 1855 wl 2190 (mich), people of the state of michigan vs. hester, 24 mich. app 475, 180 nw2d 360 (1970)

2) they are also stating that the affidavit is not hearsay and it falls under the self-authentication documents exception MRE 902(11) which states- Certified records of regularly conducted activity. The original or a dupicate of a record, whether domestic or foreign, or regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person cerifying that

(A) the record was made at or neart the time of the occuraence of the matters set forth by, or from information transmitted by, a person with knowledge of those amtter:

(B) the record was kept in the course of the regularly conducted business activity; and

© it was the regular practice of the business activity to make record.

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection suffciently in advance of theor offer into evidence to provide a adverse party with a fair opportunity to challenge them.

Are they just trying to bury me with a load of case law hoping I won't show up? They are also tossing around the assignor/assignee and that the matter has been properly assigned and they have all the rights that the OC had. The affidavit that was attached are used regularly and considered to be proper and sufficient evidence and of course they want my motion denied and costs and sanctions assessed against me because they had to respond...boo hoo!

What is my next step? I have never taken a suit this far I always buckle and settle but if I still have a leg to stand on I want to fight.

Did Midland include an affidavit or statement from the OC stating the records are authentic? Midland's affiant can't testify to the authenticity of the records because Midland didn't create the records.

What evidence has Midland provided?

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I have recieved nothing from them and in an interesting twist there was a settlement letter in the mail yesterday, they want to save me 30%...wow! I have not recieved anything from the court for a court date yet either and that usually comes within days of my answer being recieved.

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I have recieved nothing from them and in an interesting twist there was a settlement letter in the mail yesterday, they want to save me 30%...wow! I have not recieved anything from the court for a court date yet either and that usually comes within days of my answer being recieved.

If your court allows discovery requests, I'd send a Request for Production of Documents. Request the bill of sale, all statements showing a complete accounting of the debt including all charges, payments, interest, fees starting with a -0- balance, a copy of the application with your signature, and a copy of the cardmember agreement.

You can also send a Request for Admissions if your rules allow. In fact, again if the rules allow, I'd send the admissions after I got the documents. That way I could tailor the admissions to what they sent.

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If your court allows discovery requests, I'd send a Request for Production of Documents. Request the bill of sale, all statements showing a complete accounting of the debt including all charges, payments, interest, fees starting with a -0- balance, a copy of the application with your signature, and a copy of the cardmember agreement.

You can also send a Request for Admissions if your rules allow. In fact, again if the rules allow, I'd send the admissions after I got the documents. That way I could tailor the admissions to what they sent.

Thank you, I will get working on that right away! I have been doing more research on these clowns and I'm not even sure they are licensed in Michigan to collect! I have checked the state's website and have found nothing under Midland funding, midland credit, encore or even a wildcard search with midland* are they hiding behind the attorney? Or because there is an attorney involved they can still sue without being licensed?

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Thank you, I will get working on that right away! I have been doing more research on these clowns and I'm not even sure they are licensed in Michigan to collect! I have checked the state's website and have found nothing under Midland funding, midland credit, encore or even a wildcard search with midland* are they hiding behind the attorney? Or because there is an attorney involved they can still sue without being licensed?

From what I understand, if the attorney is licensed in that state, they can sue. Check your state statutes to make sure.

You might also try contacting some consumer attorneys to get some free advice. In my state, I can contact the state bar association's lawyer referral service, ask for the name of a consumer attorney, and that attorney will provide a free consultation, because I got his name from the referral service. That way you can ask about discovery, licensing, etc.

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IF this is the standard boilerplate affidavit from "MCM" it is without a doubt hearsay, Midland purchases charged off defaulted debt that IS their business; therefore they were Not around when the account was maintained much less created..........ALL they have done is bought a "pig in a sack" and Then have the audacity to claim "personal knowledge" and "accuracy of records" they have never had any other dealings with= hearsay totally

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IF this is the standard boilerplate affidavit from "MCM" it is without a doubt hearsay, Midland purchases charged off defaulted debt that IS their business; therefore they were Not around when the account was maintained much less created..........ALL they have done is bought a "pig in a sack" and Then have the audacity to claim "personal knowledge" and "accuracy of records" they have never had any other dealings with= hearsay totally

Funny thing is I found another affidavit from another court case that had the same notary and affiant and the affidavit was exactly the same just change the names and amount. I can't believe after being sued they still try and get away with this!

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They get well over 90% Default Judgments in their favor doing so, as long as these "affidavits" are not closely checked AND they're not contested I am sure they'll continue to use them unless they MUST stop...... sad but how it is IMO

I have to believe using them is an easy to prove FDCPA violation so whenever they're suing for around $1K I'd bet a counter will shut them down ASAP ;)

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