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Michigan Affidavit Question

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I have court tomorrow against everyone's favorite JDB Midland.

I have the typical affidavit described here by just about everyone. I am not 100% sure about the 10 day from date of filing thing. I believe all I could find out was 'timely'. If someone could clarify this 10 day period, would appreciate.

Also, I did not include counter claims or file my own affidavit.

Basically I denied everything and the item that refers to the affidavit I denied saying

Defendant is without knowledge of information sufficient to form a belief as to the truth of the allegations, assignments and entitlements in paragraph # to include the attached affidavit and therefore denies the same and puts Plaintiff to its strictest proof thereof.

Also, in my Affirmative Defenses I said:

Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

Can I use either of these to launch attack on their affidavit if this becomes admissible? Or did I blow it by not counter-claiming?

I was planning to attack the validity at trial with a motion to strike using the 'timely' claim if I can find more info on the 10 days thing.

I just dont want that piece of crap to become admissible because I forgot something.

Need sleep...sorry if this is not as clear as I intended.

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In Michigan under MCL 600.2145 - Account States:

: to recover the amount due on an open account or upon account stated, if the Plaintiff or someone on his behalf makes an affidavit of account due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, 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 commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless with the defendant’s answer, by himself or agent makes an affidavit and serves a copy therefore on the plaintiff and his attorney, denying the same. The statute states that once the affidavit is served with the case summons, the affidavit must be dated within 10 days of the Summons.

Basically if the Affidavit was not dated within 10 days of the summons, the affidavit should not serve as primia facie evidence. You still should have filed a counter-affidavit denying or objecting to what is in it. Especially if it was made by an employee for Midland.

Here is a case from Capital One that shows this issue:

http://coa.courts.mi.gov/DOCUMENTS/OPINIONS/FINAL/COA/20050922_C253563_43_253563.OPN.PDF

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Thanks for the quick reply and reference. I now have the statute number or whatever it is called but I still need to know how to proceed from here. Lawyer requested 90days for discovery. Judge said he'd send me a schedule. He mentioned mediation scheduled for 1 month after discovery and something about a trial following if still not resolved.

Not sure if I should just sit and wait to see what they send me and address those items or if I should be initiating things on my own.

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look up a thread called "Start to Finish..how I beat Midland Funding"...I have another link written by an attorney on how to defend a CC lawsuit. It is from Texas, do not pay attention to the case law, but the same arguments apply.

http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

Also, look under the Michigan Court of Appeals for case law look up...type in Midland and see what pulls up.

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Seems like I read that the state of Michigan attorney general has filed suit against Midland...see what you can find.

Also google: "Brent vs Midland"....Brent slammed Midland on the basis of false affidavits, and Midland had to pay big time !

I read where the state of Texas also file suit against Midland...see what you can find. use these cases as " consideration of the court", as these cases per say were based on Texas and Ohio law (Brent)

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Thanks for the input. Will definitely read the TX document. Too bad not a MI document. Not much MI info in simple layman terms. Mostly convoluted LAWman terms.

The affidavit is definitely more than 10 days old.

STill trying to figger out what to do with this information.

I received Plaintiff request for admissions, interrogatories and request for production of documents to defendant today. Since this is not specifically affidavit related, I will not add more here.

But if there is a sample of how to format this outdated affidavit issue for MI and in what doc it should be included (after the pre-trial and in Discovery phase), pls post a link here.

Thanks!

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If you have a counterclaim FDCPA violation you can still file a separate lawsuit against them, if you need a referral to a good consumer attorney in Michigan PM me.

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Does anyone know how to properly format a counter-affidavit? and if so should it be filed as a counterclaim and the fee for a counterclaim be paid upon filing it with the Answer?

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Does anyone know how to properly format a counter-affidavit? and if so should it be filed as a counterclaim and the fee for a counterclaim be paid upon filing it with the Answer?

I'm also interested in the format. I talked to the clerk today about my own case and there is no fee for filing a affidavit with your answer at the 41-A District Court. I don't know about other districts.

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COUNTER-AFFIDAVIT

Make sure you title it like so, and include a Certificate of Service with it. You cannot file your Counter-Aff with your Answer, they're separate documents so each needs a C of S.

*Correction, you can file them at the same TIME, just not in the same pile ie paperclip or binder clip. You shouldn't be stapling anything.

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If you have a counterclaim FDCPA violation you can still file a separate lawsuit against them, if you need a referral to a good consumer attorney in Michigan PM me.

Thank you for this. I will see how my case goes first. From what I understand, these are separate lawsuits and if I do not get dismissed with prejiduce when it is all over, then I will certainly look into this.

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If the affidavit was signed by someone outside Michigan, look at this.

Check out MCL 600.2102..Affidavits from people in another state or country, is required or maybe received in a judicial proceeding in this state, to entitle the same to be read, it must be authenticated as follows:

2. It must be certified by a some judge of a court having a seal to have taken before him, specifying the time and place where taken.

3. The Genuineness of the signature of the judge, the existence of the court, and the fact the such judge is a member thereof, must be certified by the clerk of the court under the seal thereof.

If I am reading this right, all of the affidavits signed or taken by a person of another state have to have the affidavit certified by a judge in that state. None of the affidavits I have seen were taken in front of a judge.

Edited by bmc100

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If the affidavit was signed by someone outside Michigan, look at this.

Check out MCL 600.2102..Affidavits from people in another state or country, is required or maybe received in a judicial proceeding in this state, to entitle the same to be read, it must be authenticated as follows:

2. It must be certified by a some judge of a court having a seal to have taken before him, specifying the time and place where taken.

3. The Genuineness of the signature of the judge, the existence of the court, and the fact the such judge is a member thereof, must be certified by the clerk of the court under the seal thereof.

If I am reading this right, all of the affidavits signed or taken by a person of another state have to have the affidavit certified by a judge in that state. None of the affidavits I have seen were taken in front of a judge.

Michigan also has a Uniform Recognition of Acknowledgments that allows documents notarized in other states:

Section 565.262 UNIFORM RECOGNITION OF ACKNOWLEDGMENTS ACT

565.262 “Notarial acts” defined.

Sec. 2.

As used in this act:

(a) “Notarial acts” means acts that the laws of this state authorize notaries public of this state to perform, including the administering of oaths and affirmations, taking proof of execution and acknowledgments of instruments, and attesting documents. Notarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of this state by the following persons authorized pursuant to the laws and regulations of other governments in addition to any other person authorized by the laws of this state:

(i) A notary public authorized to perform notarial acts in the place in which the act is performed.

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