Somewhat Confused

Update, Needing a Little More Help w/Discover Answers Please....

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I dont have much time in getting this out as I think I only have a day or two, I totally forgot about this with everything that has occured in my mother passing a few weeks ago. If you guys can continue to please help me I would so greatly appreciate it. To quickly summarize below.

After Trial I got this Pre-Trial Order:

This order, and the dates contained herein, will govern the conduct of all pretrial matters in accordance with the pertinent Michigan Court Rules.

1. All Discovery must be completed by September, do not file discovery with the Court. If either party is unrepresented, no requests to admit allowed.

2. Witness lists must be exchanged and files with the court by August. No witness may be called at trial that is not listed.

3. All motions, dispositive or otherwise, must be filled with the court by October.

4. Responses to motions must be filled by November.

5. Final Pre-Trial conference and motion hearing will be held December.

6. This cause is set for Trial on January 2012

7. Trial cannot be adjourned by stipulation of the parties except upon motion to the court for good cause shown.

It is so ordered.

Then I got the - Interrogatories & Request for to Produce:

1. Did you apply to obtain Visa Classic Providian National Bank Credit Account?

2. Did you, by applying for credit, you received credit privileges?

3. If this was not you intention, state why you applied for the credit.

4. Did you receive goods and/or services, pursuant to the Providian credit account.

5. Does a principal balance of $x,xxx.xx remains due and owing on said credit account.

6. If you deny that a balance remains due & owing, please state your specific reasons why said balance is not due & owing.

7. Does any amount remains due & owing on said credit card account?

8. If so, what amount do your records reflect as due and owing?

9. Did you receive statements from on the account, indicating the balance they claim is due and owing?

10. Did you make a payment on said account?

11. Did you dispute any charges or fees on this account in writing to the original creditor?

12. Please attach to your answers a copy of the letter(s) of dispute you sent to the issuer of the credit & a copy of any response.

13. Please provide every address and P.O. Box utilized by the Defendant from February 1999 to the present and the dates of the use of each of these address.

Next page of the Interrogatories was a Plaintiffs Witness List

1. Custodian of Records pursuant to MCR2.401(I)

2. My name - Why they would have my name on their witness list is odd...

3. All Witnesses Called by Defendant

4. All necessary rebuttal witnesses.

5. All witnesses that becomes known through discovery.

Coltfan1972 suggested that I say this for all but #12 & #13.

Objection. Interrogatory is improper and in violation of rules of civil procedure XXX. Plaintiff is asking the Defendant for an admission. Instead of asking to admit or deny, Plaintiff is asking Defendant to give a yes or no response. Any such response, although asked as an interrogatory, is no more than a request for an admission or denial. As the rules of procedure do not allow such request for admissions, the Defendant objects to Plaintiff's request for an admission or denial disguised as an interrogatory.

As for the Civil Rules code the only thing I found is the (coa.courts.mi.gov/rules/documents/1chapter2civilprocedure.pdf) Rule 2.309 Interrogatories to Parties; I don't understand exactly which one of these rule to apply to my situation for the above objection.

As for #12 - Please attach to your answers a copy of the letter(s) of dispute you sent to the issuer of the credit & a copy of any response. I was not aware of this until I received the summons & complaint, so I would have not sent the following so how could I respond to this properly.

As for #13 - Please provide every address and P.O. Box utilized by the Defendant from February 1999 to the present and the dates of the use of each of these address. Should I just reply that I have lived at the same address then as I do now? Or object because it has no relevancy or? And what does the dates of the use of each address mean?

Also as stated before I know the SOL is up on this account as the attorney stated last payment was made in 2006 regarding the Chase Card. DE is (3) years of SOL so I looked up an old Chase Agreement from 1999 (when it was opened) and it stated the following below.

GOVERNING LAW

THE TERMS AND ENFORCEMENT OF THIS AGREEMENT AND YOUR ACCOUNT SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND, TO THE EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE, WITHOUT REGARD TO CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT.

Also is there a way that I can throw this into my defense when I sumbit them my Production of Documents & Request for admissions? Or shall I wait until we are in the hearing and then ask the Judge for dismissal due to that the SOL is up and then throw some kind of rules or something. I am just guessing here as I really have clue what to say or do...

Edited by Somewhat Confused

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I dont have much time in getting this out as I think I only have a day or two, I totally forgot about this with everything that has occured in my mother passing a few weeks ago. If you guys can continue to please help me I would so greatly appreciate it. To quickly summarize below.

After Trial I got this Pre-Trial Order:

This order, and the dates contained herein, will govern the conduct of all pretrial matters in accordance with the pertinent Michigan Court Rules.

1. All Discovery must be completed by September, do not file discovery with the Court. If either party is unrepresented, no requests to admit allowed.

2. Witness lists must be exchanged and files with the court by August. No witness may be called at trial that is not listed.

3. All motions, dispositive or otherwise, must be filled with the court by October.

4. Responses to motions must be filled by November.

5. Final Pre-Trial conference and motion hearing will be held December.

6. This cause is set for Trial on January 2012

7. Trial cannot be adjourned by stipulation of the parties except upon motion to the court for good cause shown.

It is so ordered.

Then I got the - Interrogatories & Request for to Produce:

1. Did you apply to obtain Visa Classic Providian National Bank Credit Account?

2. Did you, by applying for credit, you received credit privileges?

3. If this was not you intention, state why you applied for the credit.

4. Did you receive goods and/or services, pursuant to the Providian credit account.

5. Does a principal balance of $x,xxx.xx remains due and owing on said credit account.

6. If you deny that a balance remains due & owing, please state your specific reasons why said balance is not due & owing.

7. Does any amount remains due & owing on said credit card account?

8. If so, what amount do your records reflect as due and owing?

9. Did you receive statements from on the account, indicating the balance they claim is due and owing?

10. Did you make a payment on said account?

11. Did you dispute any charges or fees on this account in writing to the original creditor?

12. Please attach to your answers a copy of the letter(s) of dispute you sent to the issuer of the credit & a copy of any response.

13. Please provide every address and P.O. Box utilized by the Defendant from February 1999 to the present and the dates of the use of each of these address.

Next page of the Interrogatories was a Plaintiffs Witness List

1. Custodian of Records pursuant to MCR2.401(I)

2. My name - Why they would have my name on their witness list is odd...

3. All Witnesses Called by Defendant

4. All necessary rebuttal witnesses.

5. All witnesses that becomes known through discovery.

Coltfan1972 suggested that I say this for all but #12 & #13.

Objection. Interrogatory is improper and in violation of rules of civil procedure XXX. Plaintiff is asking the Defendant for an admission. Instead of asking to admit or deny, Plaintiff is asking Defendant to give a yes or no response. Any such response, although asked as an interrogatory, is no more than a request for an admission or denial. As the rules of procedure do not allow such request for admissions, the Defendant objects to Plaintiff's request for an admission or denial disguised as an interrogatory.

As for the Civil Rules code the only thing I found is the (coa.courts.mi.gov/rules/documents/1chapter2civilprocedure.pdf) Rule 2.309 Interrogatories to Parties; I don't understand exactly which one of these rule to apply to my situation for the above objection.

As for #12 - Please attach to your answers a copy of the letter(s) of dispute you sent to the issuer of the credit & a copy of any response. I was not aware of this until I received the summons & complaint, so I would have not sent the following so how could I respond to this properly.

As for #13 - Please provide every address and P.O. Box utilized by the Defendant from February 1999 to the present and the dates of the use of each of these address. Should I just reply that I have lived at the same address then as I do now? Or object because it has no relevancy or? And what does the dates of the use of each address mean?

Also as stated before I know the SOL is up on this account as the attorney stated last payment was made in 2006 regarding the Chase Card. DE is (3) years of SOL so I looked up an old Chase Agreement from 1999 (when it was opened) and it stated the following below.

GOVERNING LAW

THE TERMS AND ENFORCEMENT OF THIS AGREEMENT AND YOUR ACCOUNT SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND, TO THE EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE, WITHOUT REGARD TO CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT.

Also is there a way that I can throw this into my defense when I sumbit them my Production of Documents & Request for admissions? Or shall I wait until we are in the hearing and then ask the Judge for dismissal due to that the SOL is up and then throw some kind of rules or something. I am just guessing here as I really have clue what to say or do...

SOL has to be pled in the answer. You have to check the procedure for amending your answer to add these affirmatives.

also I think the

Objection; After deligent search and reasonable inquiry defendant is unable to answer due to a lack of information available to defendant. Discovery is ongoing and on information and belief the plaintiff's are required by statute to have properly authenticated evidence of the facts necessary to prove their claims prior to initiation of the present action. The request/interrogatory requests facts which have been denied which is thus improper. Additionally defendant is not in possesion of evidence requested and for that reason defendants objection is proper.

objection might work. It is not boilerplate (yet) and truthfully brings everything to bear. and tweaking anyone?

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Cant say Thank you enough for the response, and yes I have spent the entire day in here today looking up just the same and its seems that a lot of the answers end up being.. admit or deny or object as stated below.

Objection on the ground that it is unduly burdensome to the extent it seeks information that is not within the current knowledge, possession, custody or control of the Defendant.

My only thing in using that, that in the pre-trial order it stateted that - If either party is unrepresented, no requests to admit allowed. As Coltfan pointed out to me the following;

If your state's rules of procedure don't allow request for admissions, why not an objection to each and every interrogatory other than #12 and #13. Those are just back door request for admissions where you would admit or deny. Look at #6. They even ask for an explanation if you deny in # 7.

For example, # 1 - Instead of admit or deny that you applied for a Visa Classic credit card from Providan Bank. They ask if you did apply. That answer calls for a yes or no answer, therefore is just a request for admissions.

Instead of admit or deny it is yes (admit) or no (deny).

What about;

Objection. Interrogatory is improper and in violation of rules of civil procedure XXX (<---couldn't find the correct rule to apply here). Plaintiff is asking the Defendant for an admission. Instead of asking to admit or deny, Plaintiff is asking Defendant to give a yes or no response. Any such response, although asked as an interrogatory, is no more than a request for an admission or denial. As the rules of procedure do not allow such request for admissions, the Defendant objects to Plaintiff's request for an admission or denial disguised as an interrogatory.

I would like to know if it was ok to use that for all the answers except for questions #12 & 13 as I didn't know if I could apply that or just plainly use..

Objection on the ground that it is unduly burdensome to the extent it seeks information that is not within the current knowledge, possession, custody or control of the Defendant.

I think my luck is up on that as I did not submit any affirmative defenses (didn't know I could at that time). When I got the summons and complaint I simply replied with the defendant is without sufficient knowledge or belief to admit or deny allegations in this summons and complaint. We went to court I denied the account and went straight for discovery. And here we are...

Edited by Somewhat Confused

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You stated the SOL is up based on DE law. That is called choice of law. Your court may or may not recognize that.

In my state, I can contact the SC Bar Association and ask for the name of a consumer attorney in my area, and they will give me a name. Because I got that name from the SC Bar referral service, that attorney will give me a free consultation. See if your state bar does the same thing.

If your state does not provide that option, some attorneys will speak to you for a few minutes over the phone. In that case, it might be worth it to call as many attorneys as necessary to find out if you can use the choice of law provision.

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Thanks BV80 I am looking into it as we speak.. thank you... and btw is there any chance on also getting your opinion on the rest? Do you think that the responce Coltfan suggested will be proper to apply to the questions or should I not upset them and simply just admit or deny or...

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Thanks BV80 I am looking into it as we speak.. thank you... and btw is there any chance on also getting your opinion on the rest? Do you think that the responce Coltfan suggested will be proper to apply to the questions or should I not upset them and simply just admit or deny or...

You're very welcome. I hope you can get some answers.

Regarding the interrogatories. I agree with Coltfan that the interrogatories are asking you to admit. Here's what your rules state concering Interrogatories:

Rule 2.302 General Rules Governing Discovery

(a)(i) A party may through interrogatories require another party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter about which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

They didn't ask you to identify or state. They were asking specific questions. That would be another question I'd ask an attorney.

BTW, what evidence did they include, if any?

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They didn't include any evidence - in court she had a huge folder with a stack of papers (supposed copies of this account) in which she threw some dates out to me & then asked me if that was my address, and if I got the statements & told me when I made my last payment in 2006 etc....

And its to late to make any calls for tonight but in looking it up I came across hellonwheels post (creditinfocenter.com/forums/collections/308860-true-i-can-use-3yrsol-de-instead-where-i-live.html") as it seems he had the same question ... which inlcuded a link to Michigans Choice of Law Provision, (council.legislature.mi.gov/fi...997/borrow.htm). After reading it I think I am even more confused then ever, so yeah will make that call in the morning..

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They didn't include any evidence - in court she had a huge folder with a stack of papers (supposed copies of this account) in which she threw some dates out to me & then asked me if that was my address, and if I got the statements & told me when I made my last payment in 2006 etc....

And its to late to make any calls for tonight but in looking it up I came across hellonwheels post (creditinfocenter.com/forums/collections/308860-true-i-can-use-3yrsol-de-instead-where-i-live.html") as it seems he had the same question ... which inlcuded a link to Michigans Choice of Law Provision, (council.legislature.mi.gov/fi...997/borrow.htm). After reading it I think I am even more confused then ever, so yeah will make that call in the morning..

Here it is:

Lawyer Referral Service—(800) 968-0738

"When you contact the attorney, please state that you received a referral from the State Bar of Michigan. The cost of your initial 30-minute consultation with a LRIS panel member will be no more than $20.00. Any and all fees beyond the initial 30-minute consultation (including, but not limited to, fee agreements for representation) must be negotiated with the attorney."

I hope that helps.

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Statute of Limitations on an Open Account is 4 years in MI - Could this really be true ... (michigancollectionlawblog.com/?p=282)

The Michigan Court of Appeals in Fisher Sand and Gravel v Neal A. Sweebe, Inc. ruled that the four year Statute of Limitations under the Michigan Uniform Commercial Code that applies to Breach of Contract claims also applies to claims for Open Account when that account relates to the sale of goods. This is an important ruling to collection attorneys and those who even dabble in debt collection.

Any collection worth his or her salt knows enough to file a lawsuit with a claim for Breach of Contact, Account Stated and Open Account. We plead the latter two claims when our contract claims is weak or when we simply want back up positions in the event that a court dismisses our Breach of Contract claim.

In Michigan a Breach of Contract claim generally has a six year statute of limitations (MCL 600.5807(8)), meaning that the Plaintiff has six years from the date that the contract was breached, to file his lawsuit against the Defendants. Under the Michigan UCC, however, if a transaction involves the sale of goods, then there is a shorter 4 year Statute of Limitations.

In this case,the Plaintiff’s claim involved the sale of goods to the Defendant. The Defendant had breached this contract more than four years prior to the Plaintiff having filed its lawsuit to enforce its contract. The trial court allowed the plaintiff to file an amended complaint to add a count of Open Account. This was a futile amendment to the complaint. The trial court subsequently found that the Open Account claim must fail on the same grounds as its Breach of Contract; namely that the four year Statute of Limitations under the UCC controls the transaction. The Court of Appeals agreed with the trial Court.

I found the Plaintiff’s attempt to sever the Defendant’s obligations under Breach of Contract from its obligations for Open Account to be an excellent argument allowing for different limitations time periods. While the Plaintiff’s effort was valiant, I believe that the trial court and the Court of Appeals came to the correct conclusion. A Plaintiff cannot separate the nature of its Breach of Contract claim from its claim for Open Account as both of these claims involve the sale of goods. More importantly, the Defendant’s duties to pay under each claim is virtually identical. As discussed below, I think the courts would have to arrive at a different result for a claim under Account Stated. Its undisputed that the sale of goods is governed by the UCC and its statute of limitations. So, where does this leave us collection attorneys?

Moral of the Story for Collection Attorneys – Know that if your breach of contract claims is out of statute, then your Open Account claim is equally out of statute. BUT….take heart. This opinion does not foreclose you from filing a claim for Account Stated claim. Arguably, a court could hold that the same 4 year Statute of Limitations applies to Account Stated claims but I think that that argument would be less persuasive. A debtor’s obligation to timely object to an invoice in a timely fashion in order to defeat an account stated is independent of whether the underlying contract involves the sale of a good or the sale of service. A court would have to do a bit more reasoning to hold that the UCC Statute of Limitations applies to an Account Stated claim.

Moreover, if there were a contract between the parties that involved a sale of goods, a Plaintiff may choose to forego that argument if its claim is beyond the four year statute and simply attempt to enforce it on common law claims such as Unjust Enrichment or Promissory Estoppel.

I could admonish my fellow collection attorneys to be careful about taking cases that are outside the statute of limitations, but I think you know that already. So I will advise you that if you take such a case, think creatively and consider your common law options.

Edited by Somewhat Confused

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Statute of Limitations on an Open Account is 4 years in MI -

(michigancollectionlawblog.com/?p=282)

The Michigan Court of Appeals in Fisher Sand and Gravel v Neal A. Sweebe, Inc. ruled that the four year Statute of Limitations under the Michigan Uniform Commercial Code that applies to Breach of Contract claims also applies to claims for Open Account when that account relates to the sale of goods. This is an important ruling to collection attorneys and those who even dabble in debt collection.

Any collection worth his or her salt knows enough to file a lawsuit with a claim for Breach of Contact, Account Stated and Open Account. We plead the latter two claims when our contract claims is weak or when we simply want back up positions in the event that a court dismisses our Breach of Contract claim.

In Michigan a Breach of Contract claim generally has a six year statute of limitations (MCL 600.5807(8)), meaning that the Plaintiff has six years from the date that the contract was breached, to file his lawsuit against the Defendants. Under the Michigan UCC, however, if a transaction involves the sale of goods, then there is a shorter 4 year Statute of Limitations.

In this case,the Plaintiff’s claim involved the sale of goods to the Defendant. The Defendant had breached this contract more than four years prior to the Plaintiff having filed its lawsuit to enforce its contract. The trial court allowed the plaintiff to file an amended complaint to add a count of Open Account. This was a futile amendment to the complaint. The trial court subsequently found that the Open Account claim must fail on the same grounds as its Breach of Contract; namely that the four year Statute of Limitations under the UCC controls the transaction. The Court of Appeals agreed with the trial Court.

I found the Plaintiff’s attempt to sever the Defendant’s obligations under Breach of Contract from its obligations for Open Account to be an excellent argument allowing for different limitations time periods. While the Plaintiff’s effort was valiant, I believe that the trial court and the Court of Appeals came to the correct conclusion. A Plaintiff cannot separate the nature of its Breach of Contract claim from its claim for Open Account as both of these claims involve the sale of goods. More importantly, the Defendant’s duties to pay under each claim is virtually identical. As discussed below, I think the courts would have to arrive at a different result for a claim under Account Stated. Its undisputed that the sale of goods is governed by the UCC and its statute of limitations. So, where does this leave us collection attorneys?

Moral of the Story for Collection Attorneys – Know that if your breach of contract claims is out of statute, then your Open Account claim is equally out of statute. BUT….take heart. This opinion does not foreclose you from filing a claim for Account Stated claim. Arguably, a court could hold that the same 4 year Statute of Limitations applies to Account Stated claims but I think that that argument would be less persuasive. A debtor’s obligation to timely object to an invoice in a timely fashion in order to defeat an account stated is independent of whether the underlying contract involves the sale of a good or the sale of service. A court would have to do a bit more reasoning to hold that the UCC Statute of Limitations applies to an Account Stated claim.

Moreover, if there were a contract between the parties that involved a sale of goods, a Plaintiff may choose to forego that argument if its claim is beyond the four year statute and simply attempt to enforce it on common law claims such as Unjust Enrichment or Promissory Estoppel.

I could admonish my fellow collection attorneys to be careful about taking cases that are outside the statute of limitations, but I think you know that already. So I will advise you that if you take such a case, think creatively and consider your common law options.

I understand the premise of the argument. Some states do have one SOL for a breach of contract and another SOL for an open account. Other states add "revolving account".

An "open account" can be different from a "revolving account". For instance, a drywall contractor in the construction industry can have an "open account" with a material supplier. It doesn't involve a credit card. The dyrwall contractor can order supplies from the supplier. The supplier sends out invoices (bills) every month. That's considered an "open account", not a revolving account. I assume it's because the account is with the same business. It does not involve multiple businesses the way a revolving account does via a bank credit card.

I'm not an attorney, so I can only understand so much. I do know, however, that case law is important. If it were me, and if my state does not have a statute pertaining to revolving accounts, I'd be researching case law concerning open accounts vs. breach of contract that is binding in my court. For instance, case law in Michigan or the Sixth Circuit Court of Appeals (which includes Michigan) is not binding precedent for a lawsuit in SC.

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Researching that as we speak I just might have a chance & I know that I couldn't have done it with out this Forum all the great people in here & especially you! ;)

I printed out my answers to the interrogatories. I also copied from another post in here a set production of documents from defendant to plaintiff and I added below that, my Request for Admissions (I think it was yours I actually used for that). I am anxious to see what happens next.

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Spending a little more time in here learning when I came across Singledadjames post about "My Thoughts on Account Stated in MI and in General". Great, I had no idea about this affidavit nor did I know that I had to properly file a counter affidavit to oppose the affidavit of indebtedness. So I looked at my summons & complaint and behold there it was a page called Affidavit.

James stated that under MI rule, if the plaintiff files and attaches a timely affidavit (An affidavit dated within the 10 days before the filing of the complaint) that affidavit can be used as prima facie evidence of the defendant's indebtedness.

With my paperwork there was (2) copies of a summons one dated in Oct 2010 the second dated Fed 2011. Along with an affidavit which was dated back in Aug 2010... would that then not be considered a timely affidavit? Also in his summary he also states that if didn't file, I may still have options but things can get a little more difficult. He listed the following examples.

For example, is the plaintiff’s affidavit properly notarized and dated?
Mine is notarized & dated over a Year ago - Aug 2010
Does their complaint follow proper format for a pleading?
Don't know what that means, it s a paper that says Affidavit & listed 1-3- (1) states I hereby certify that I am an authorized rep of Portflo etc.. (2) States action is pursue by Portflo as successor in interest of blah.. (3) States that she (employee of them) is qualified & competent to testify about the matters & authorized to make this affidavit. She has access to records of said account etc...
Does the complaint or affidavit make claims based on a written instrument?
Would a written instrument be that they (Portflo) states they have records of this account, and testify that the amount of the claim is just and true to the best of her personal knowledge.
If so under the MI rules of civil procedure a copy of that written instrument must be attached to the pleading as an exhibit.)
There was nothing attached to it.

So I am correct to assume that it is way to late to file a counter affidavit, any chance that I have in arguing something against this or have it thrown out because of the date and because there was no written instrument attached to the pleading (<--that would be the summons & complaint correct) as an exhibit.

Edited by Somewhat Confused

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Spending a little more time in here learning when I came across Singledadjames post about "My Thoughts on Account Stated in MI and in General". Great, I had no idea about this affidavit nor did I know that I had to properly file a counter affidavit to oppose the affidavit of indebtedness. So I looked at my summons & complaint and behold there it was a page called Affidavit.

James stated that under MI rule, if the plaintiff files and attaches a timely affidavit (An affidavit dated within the 10 days before the filing of the complaint) that affidavit can be used as prima facie evidence of the defendant's indebtedness.

With my paperwork there was (2) copies of a summons one dated in Oct 2010 the second dated Fed 2011. Along with an affidavit which was dated back in Aug 2010... would that then not be considered a timely affidavit? Also in his summary he also states that if didn't file, I may still have options but things can get a little more difficult. He listed the following examples.

Mine is notarized & dated over a Year ago - Aug 2010

Don't know what that means, it s a paper that says Affidavit & listed 1-3- (1) states I hereby certify that I am an authorized rep of Portflo etc.. (2) States action is pursue by Portflo as successor in interest of blah.. (3) States that she (employee of them) is qualified & competent to testify about the matters & authorized to make this affidavit. She has access to records of said account etc...

Would a written instrument be that they (Portflo) states they have records of this account, and testify that the amount of the claim is just and true to the best of her personal knowledge.

There was nothing attached to it.

So I am correct to assume that it is way to late to file a counter affidavit, any chance that I have in arguing something against this or have it thrown out because of the date and because there was no written instrument attached to the pleading (<--that would be the summons & complaint correct) as an exhibit.

What is the cause of action? Account stated? Breach of Contract?

According to MI rule:

600.2145 Open account or account stated; proof, counterclaim.

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.

Hopefully they sued on account stated or suit on account...something like that. If your rules allow, and if you're still in the allotted time frame, I would file a Motion to Strike. My argument would be that the Plaintiff did not comply with Rule 600.2145, therefore, their affidavit should not be admitted.

A written instrument might mean a contract or cardmember agreement. Did they mention either one of those in the affidavit or Complaint?

Edited by BV80

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If only I knew what I was doing when answering this Summons & Complaint as I do now, anyhow it states for the first summons (which is a copy). And one I never received.

Number #6 - Plaintiffs assignor has completed perfomance and rendered an account stated - affidavit attached. This is dated October 2010.

Second one doesnt state anything other then Notice to Defendant you are being sued etc.... and that one is dated Fed 2011.

Edited by Somewhat Confused

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If only I knew what I was doing when answering this Summons & Complaint as I do now, anyhow it states for;

Number #6 - Plaintiffs assignor has completed perfomance and rendered an account stated - affidavit attached.

It appears they are suing on account stated. In my opinion, the statute should apply.

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I would have to see if the rule allows... still reading..

A written instrument might mean a contract or cardmember agreement. Did they mention either one of those in the affidavit or Complaint?

No they did not...

Edited by Somewhat Confused

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Researching that as we speak I just might have a chance & I know that I couldn't have done it with out this Forum all the great people in here & especially you! ;)

I printed out my answers to the interrogatories. I also copied from another post in here a set production of documents from defendant to plaintiff and I added below that, my Request for Admissions (I think it was yours I actually used for that). I am anxious to see what happens next.

I'm not sure here as I've only had time to skim the thread and haven't read it in great detail. At the beginning of the thread you posted the pre-trial order which basically says that if either party is unrepresented requests for admission are not allowed. If that is the case you shouldn't be sending any requests for admission. They'll either be ignored or objected to since the court said they aren't allowed since you are not represented by an attorney.

I'm pretty sure that means either party can not specifically title a REQUEST FOR ADMISSIONS section and ask specific admissions to be admitted or denied. That doesn't mean cleverly crafted interrogatories can't be used to accomplish the same thing.

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I would have to see if the rule allows... still reading..

No they did not...

From what I gathered from skimming the thread you failed to file your counter affidavit required for an account stated under MCL 600.2145. That's a mistake but it doesn't have to be a game ender. The fact that you didn't file the counter affidavit really only comes into play if the plaintiff raises the issue. I suspect they'll never bring it up.

If it were me and they DID raise that issue of my failure to file a counter affidavit then I might question whether or not I was ever technically required to do so in the first place. My personal non-attorney lay person opinion is that since their affidavit was dated well before the 10 days referred to in MCL 600.2145 they submitted an affidavit that was insufficient as a matter of law. Since their own affidavit didn't follow the statute it never created the burden of you submitting a counter affidavit in the first place. At least that's what I'd say should they be foolish enough to raise the issue.

Odds are they know darn well their boilerplate stale affidavit isn't compliant with MCL 600.2145 and that's why they'll never push the issue. The statute is just a way for them to slide cases through the system for stupid,scared,or lazy defendant's who won't bother to show up or mount a defense.

The "business records" they are referring to in the BS affidavit is likely text and numbers on a computer screen.

In my case the JDB provided absolutely nothing with the complaint except the affidavit. When you really push them in Discovery they'll provide some more in house BS. When they get really pressed they'll probably pay for copies of past statements. If that's all being provided by a JDB and not being authenticated it's pretty useless at trial if you properly argue and object to things.

Have you looked into adding Affirmative Defenses to your answer. Right now that will be their way out. I believe they can seek to have the case dismissed or motion for summary disposition based on the fact that you don't have any affirmative defenses.

I'd prepare to ammend my answer and add AD's and/or learn how to respond to a Motion for Summary Disposition. If they decide to continue pursuing you the MSD is almost guaranteed before they ever go to trial. That's my uneducated opinion. :p

Edited by SingleDadJames

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One more bit of advice. I'm pretty sure the SOL on a charged off CC account will be held to be 6 years in MI. SOL is procedural in MI and the court typically rules that whatever the choice of law provision in the cc agreement says about SOL doesn't override MI's SOL. If you can find case law showing the court has upheld the SOL in the cc agreement by all means use the argument, but my research shows the MI SOL of 6 years typically wins out.

Here is a handy little reference that covers the issue. I believe the main info pertaining to the topic is found on pg. 9 of the PDF. I'd print and read the whole thing though as it provides a quick summary and MI case law of many hot debt collection case topics! I can't tell you where I obtained it from, but it's a sheet used by the Dark Side of the force so it gives you an idea of some arguments they make and how they can/can't support them:

10-MI-Debt-Collection-Issues.zip

Edited by SingleDadJames

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Hi James, I have to say that I am very fortunate to have found your posts as I am learning a lot from you (thanks). I unfortunately have already sent everything out with admissions included, oh well I am sure they will get a good laugh at me pretending to know what I am doing...anyhow its a slow learning process for me as I may not grasp everything but you guys in here have been really good to me in helping.

As for the affirmative defenses I thought I was pretty much out of luck in doing that as that should have been done with the summons and complaint correct?

I'd prepare to ammend my answer and add AD's and/or learn how to respond to a Motion for Summary Disposition.

Have to go to work now but when I get home I will have a look into how to do that (ammend my answers) and read up on responding to Motion for Summary.

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Hi James, I have to say that I am very fortunate to have found your posts as I am learning a lot from you (thanks). I unfortunately have already sent everything out with admissions included, oh well I am sure they will get a good laugh at me pretending to know what I am doing...anyhow its a slow learning process for me as I may not grasp everything but you guys in here have been really good to me in helping.

As for the affirmative defenses I thought I was pretty much out of luck in doing that as that should have been done with the summons and complaint correct?

Don't sweat sending the requests for admissions. I JUST caught that and was hoping it wasn't too late. They'll either ignore them or object. Worst case scenario they object to everything you sent because you didn't follow the court's local specific pre-trial rules. You then just take them out and resend. I suspect they'll just not answer the requests for admission b/c they don't have to. You'd never get anything useful anyway as no matter what they'll typically be evasive and respond with BS anyway!

Regarding your affirmative defenses you CAN ammend your answer. I never ended up making changes to my answer but I do recall the rules pertaining to ammending a pleading are found in:

MCR 2.118 Amended and Supplemental Pleadings

Basically you have to ask the court for permission to do so via a motion. It's more work than it would have been to just properly do things in your original answer but you can still make changes. Since it seems like you didn't include any defenses it might be a good idea to consider. Some courts are more lenient with pro-se litigant's but when it comes down to it the plaintiff will exploit your lack of defenses at some point.

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Single Dad James you are a good man. resident expert in michigan law. I only wish more attorneys from other states would summon up the blood like CALawyer here in california.

It is good to see people helping each other nowadays instead of the endless screwing over of our fellow man for big profit.

one measure of wheat for a penny I guess

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