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Hey guys,

I wanted to first say that even though I'm trying to avoid culling myself into a false sense of security, this site has definitely helped with some of my anxiety.

Well, I received a summons taped to my door for the world to see yesterday. I'm a bit worried because someone wrote on there that it was the 2nd summons and complaint. It has an issued date of 06/20/11 but I'm assuming that my 28 days to respond begin when I received it 07/21/11.

The Complaint went something like this:

1. This cause of action arose within the jurisdiction of this Court in the County of Macomb.

2. Plantiff's Midland Funding LLC predecessor in the interest is HSBC.

3. Plantiff assignor allowed Defendant to charge goods and or services on open account, and upon Defendant's promise to pay for same.

4. Plantiff's Assignor sent statements on account number 28667101.... to the Defendant who did not dispute the charges or object within a reasonable time.

5. Defendant has not paid the balance owing on the account, despite Plantiff or Plaintiff's Assignor demands for payment.

6. Defendant's failure to pay has resulted in default on the account.

7. Plaintiff's assignor has completed performance and rendered an account stated; Affidavit attached.

8. Defendant is not justly indebted to Plaintiff over and above all legal counterclaims, in the amount of 3,902.41

They basically want the 3902 plus attorney fees and court cost. When I received this I called the attorney's number on the summons (Mistake #1). It was a collections office and they wanted me to pay $4500 over the phone. I start masters school in a month and didn't want to go to court so I told them to mail me the paper work and payment plan (Possible Mistake #2). Is this a roundabout admission of guilt because I don't owe them or anyone else $4500 or $3900?

I have been reading SingleDadJames' threads and this seems pretty typical of Midland. I also noticed that the affidavit was sworn on 03/02/11 and the summons was written on 03/24/11. I still feel like I'm in over my head but I won't just sit and have judgment in their favor.

Now, time for actual questions. When using case studies, do you simply cite the case number or do you cite a excerpt from the judges ruling as well? Should the affidavit cite anything as evidence against their statements or should it simply deny the claims in their affidavit? Is there a actual court form for responses in Michigan or can I just follow the format that the summons and complaint is in? Can I fight back with the information that they are trying to collect two different amounts not specified in the complaint?

I now have a 3" stack of paper on my desk and dozens of sites saved on my computer. it's definitely going to take a long time to read through all of the pertinent information. How long on average does it take unsophisticated people to form responses? I wanted to say thank you to everyone for all of the information that I'm reading through now and thank you for any information on what I just posted.

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You may have already compromised yourself by calling the collection agency. Try and recount exactly what was said, including any possible admissions. If you admitted to the debt during that conversation, it will be on record, and you will be committing perjury if you deny owing said debt in your Answer.

Your Counter-Affidavit should most definitely cite why you disagree, i.e. Hearsay, Statue of Limitations, etc. In Michigan, at least in my Court, it was free to file the Answer and the Counter-Affidavit.

Make sure you read this thoroughly: http://coa.courts.mi.gov/rules/documents/1Chapter2CivilProcedure.pdf

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As for your Answer to the Summons and Complaint, title it simply. Make sure you use a header at the top of every new document, (not every page), including the court's title, case number, the Plaintiff's information (all of it), "VS" (your information). Basically just copy what the summons and complaint looks like, only apply it to you. Then proceed with your document title, in this case:

ANSWER TO COMPLAINT

1. List EACH allegation brought against you just as it appears on the original summons. Make sure you answer honestly. You can use Rule 2.111©(3) in Michigan to state that you lack sufficient knowledge to determine whether or not the allegations are valid- this constitutes a denial. Make sure you clearly state that you either deny or admit each count.

Use this as reference:

http://www.creditinfocenter.com/forums/there-lawyer-house/292720-start-finish-winning-against-midland-funding-aka-jdb.html

BUT remember, they're not from Michigan. Each state differs.

Edited by DefendantNewb

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Thanks guys,

I may have compromised myself. Everything I read about debt said to call the lawyer. Sometimes you just have to take the things you read with a grain of salt. The conversation went something like this:

Me: I'm calling about the summons and complaint I received in the mail. I can't afford to go to court and possibly rack up additional legal fees. Can we do something to stop this from going to trial.

Them: Yes we can, but what made you fall behind in the first place.

Me alarms ringing: Er, I didn't. I had a account with oc, I changed addresses and my mail forwarding didn't return the mail that wasn't lost. The post office held it for six months and then sent me all of my mail in one huge bulk. The account certainly wasn't for 3200 or whatever your trying to collect. (In hind sight, I probably shouldn't have said anything. The oc was roughly from 2006-2008 and my memory about it was vauge at best)

Them: Ok, we want 4500. How will you pay.

The rest is me telling them that I can't pay that, them telling me about their payment plan and me telling them to mail me the paper work. I have never owed anyone 3200 or 4500 for that matter. I've always intended to be truthful and if this comes up I'll have to be prepared to argue about the wording used from a savvy collector versus an unsophisticated person.

Sorry for the long posts and thanks for the info. I'll keep posting if anyone is interested in my mistakes.

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At this point I have no idea how you should proceed legally. I'm sure more experienced posters will be along shortly with some suggestions, as nothing on here constitutes formal legal advice.

At this point, if they do end up winning a judgement against you, you're in for a HUGE bill. Attorney's fees, the original judgement amount, the fee they paid to have you served, etc. will all be tacked on at once. With said judgement, they can continue to levy your bank account until the judgement has been satisfied. So, if you're paid on the 1st, they'll levy on the 1st, the 15th, and the 1st of the month thereafter until it's paid. (They usually assume that people are paid on or around the 1st and 15th so that's when they levy). In addition to the bank levies, if those prove to be unsuccessful, they can summon you to Court for garnishment. If you plan to fight this, you need to do so CAREFULLY. A lawyer will charge you upwards of 1-2k to represent you, and if you lose, after your lawyer's been paid, you're out that money you could have put towards the judgement. You're dealing with a large claim here. In my opinion, anything exceeding 1k should be treated with the utmost delicacy due to the fact that "attorney's fees" alone can run you a couple grand if granted. Meaning you could easily end up paying 2k on top of what the judgement is for, depending on how long litigation is drawn out. I've seen cases of $200, $600, on upwards of $3,000 in attorney's fees granted in judgements, it just depends on the judge and the amount in question.

What were the details in the Affidavit? Did they attach any legally binding documentation? ie credit card statements, original credit contract, bill of sale, etc. Also, when was the Affidavit made (signed) and how many days past the filing of the summons and complaint?

The problem here is that most banks keep fantastic records of 'media' on file, they're quite diligent. Especially now. If the company (suing you) does in fact request media from the original issuer, should you choose to fight this, they might be able to do so easily (and at your expense should they win). I've seen companies tack on charges of $500.00 just for "Discovery." Meaning they charged the Defendant $500 to request media from the original issuer. Media being the original credit contract, a bill of sale from the original issuer to the current debt owner, credit card transactions, the like.

There are so many variables, and each case is incredibly unique. Some judges are fair and have a sympathetic bone for those consumers that are targeted by sharks, others love to stick it to consumers. Personally, I've been assigned a judge that's known for throwing people in jail for simple infractions. So, I'm treading carefully, buying time, and trying to come up with the total amount the Plaintiff is asking for so I can settle before it goes to trial if I have to. Although I'm confident in my abilities, I am not willing to risk a default judgement that contains astronomical fees.

If you have some dough, I'd suggest attempting to settle. If you're flat broke, you might be better off accepting a payment arrangement from the collection agency to avoid an insane judgement that they'll hit you with at once should you lose. If you've got 4k available to you and it wouldn't put you on the streets if it was taken, you should fight it. If you do not have 4k, you need to settle. Debt collectors are required to file in "Civil" court for a reason. They (the Court) want you to resolve your issue civilly, without them. That's why before a judge will hear most collection cases, they ask if the parties have, or sometimes request that the parties do, attempt to resolve the issue without them. When you're gambling with such a large potential judgement, you need to be so, so careful.

If you decide to fight, the links I provided you with will aid you tremendously.

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Me: I'm calling about the summons and complaint I received in the mail. I can't afford to go to court and possibly rack up additional legal fees. Can we do something to stop this from going to trial.

This was fine, you can make arrangements to settle without admitting.

Them: Yes we can, but what made you fall behind in the first place.

This was their attempt to get you to ADMIT.

Me alarms ringing: Er, I didn't. I had a account with oc, I changed addresses and my mail forwarding didn't return the mail that wasn't lost. The post office held it for six months and then sent me all of my mail in one huge bulk. The account certainly wasn't for 3200 or whatever your trying to collect. (In hind sight, I probably shouldn't have said anything. The oc was roughly from 2006-2008 and my memory about it was vauge at best)

You've now admitted to owing the original issuer. Therefore, in your response to summons, you must admit to owing the original issuer, that is, if they recorded the conversation you had with them and plan to use it against you should you deny owing the original issuer. This is tricky, and some might suggest that you simply deny per rule 2.111©(3) and make them prove it, however in my humble opinion, you've shot yourself in the foot and you do not want to risk perjury. Although perjury is rarely brought against Defendants in credit card litigation, it happens!

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You've now admitted to owing the original issuer. Therefore, in your response to summons, you must admit to owing the original issuer, that is, if they recorded the conversation you had with them and plan to use it against you should you deny owing the original issuer. This is tricky, and some might suggest that you simply deny per rule 2.111©(3) and make them prove it, however in my humble opinion, you've shot yourself in the foot and you do not want to risk perjury. Although perjury is rarely brought against Defendants in credit card litigation, it happens!

DefendantNewb might be right. On the other hand, it is possible to deny the debt and just say that you were confused when you were talking to the collector over the phone; that the debt they're trying to collect on is an old debt, and you had it confused with a different one. After all, you were not under oath when you talked to the collector. And you may not have even had their paperwork in front of you. So you can easily say you were confused and erred in what you said to them.

On the other hand, DefendantNewb might be right and you might be in a sticky situation. I'd definitely look for some legal advice over this.

But my (non-legal) opinion, is that filing a general denial of the debt would probably be OK. Take that with a grain of salt.

The other thing to consider is the statute of limitations. Since the debt might have been from 2006, the statute of limitations might have expired. (Don't know what it is in your state.) And, if that's the case, then you can easily say it's your debt, but the SOL is expired. So you might want to look into when your last payment on the account was, and if the SOL is expired.

Very important, though: if you're going to fight this, then you need to get your response in on time. Since your notice says "second notice," I wouldn't assume that the clock starts with the date you received that. I would assume it possibly starts with the date of the first notice (or at least the date you were supposedly served with the first notice) and go from there. If it's past the allowed date, then I would explain to the court that you never got the first notice. You might want to also call the court and ask them how long you have. Talk to a clerk there.

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The other thing to consider is the statute of limitations. Since the debt might have been from 2006, the statute of limitations might have expired. (Don't know what it is in your state.) And, if that's the case, then you can easily say it's your debt, but the SOL is expired. So you might want to look into when your last payment on the account was, and if the SOL is expired.

Very important, though: if you're going to fight this, then you need to get your response in on time. Since your notice says "second notice," I wouldn't assume that the clock starts with the date you received that. I would assume it possibly starts with the date of the first notice (or at least the date you were supposedly served with the first notice) and go from there. If it's past the allowed date, then I would explain to the court that you never got the first notice. You might want to also call the court and ask them how long you have. Talk to a clerk there.

^^^

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^^^

I also agree. Thanks guys. The second was hand written by someone next to the summons. If I had received the first or if they had sent it, the court would have sent me a copy like they did for the second. I probably would also have a default judgment against me. I don't believe they did but I'm not going to assume and contact the clerk Monday.

Apparently, I also disputed the account through my Experian account on 04/08/11 or 04/22/11. I filed two disputes; one because my deceased father's credit information was combined with mine (Same Name except Jr.) and the other was a direct dispute of this account. At the time I really did not know how to properly dispute or send validation letters. Now I can't get Experian to send me copies of the dispute. The way I was treated, I doubt that they will even admit that I filed a dispute. It made me angry enough to cancel my Experian account. I have the dispute report number but I don't have enough time to send them a method of verification letter.

As soon as I finish reading the court rules, I think I going to attack under the premise that this is a account stated. You guys are probably already aware of the FTC Debt Collection Roundtable report by J. Malik. It pointed out a fact that someone like me would not know.

Most affidavits filed by junk debt buyers, debt collectors and the like are often dated months before the issuance of the Summons and often by someone with no knowledge of the debt at issue. The clear and simple fact is the filing of the affidavit alone is false and misleading unless there was a true meeting of the minds and a 'balance struck' between the parties in the action. Keywell & Rosenfeld v Bithell, 254 Mich. App. 300, 331: 657 N.W.2d 759 (2002).

Does 'balance struck' mean that I had to agree the debt was mine and that I agreed to the amount before they created the affidavit?

If I have 28 days from being served, then I'll take my time and carefully craft my response and affidavit and submit it by the end of next week. I don't have anything to lose because they said that they would seek a judgment and legal fees even if I agreed to pay them or not.

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