Being sued by Asset in Michigan

[Jachred]

1. Who is suing you?

Asset Acceptance

2.For how much?

~1400+costs

3. Who is the original creditor?

xxx

4. How do you know you are being sued?

Served with summons by sheriff

5. How were you served? Were you served?

Served with summons by sheriff; Tried serving and harassing my dad(same name), so he made me call the sheriff to get the paperwork so they'd leave them alone. He called asset to let them know they had the wrong person/address, but they insisted they did not. Wierd.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

None; it was with my father

7. Where do you live?

Michigan

8. When is the last time you paid on this account?

xx

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily).

I have until Jan 30th 2012 to file my answer.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

Nope

12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Yes; I have responses all filled out; I am trying to find a lawyer to handle the case, but preparing just in case its not feasible. I need to file a response to affidavit (refuting theirs) and affirmative defenses

13. What evidence did they send with the summons? An affidavit? A statement from the OC? Anything else they attached as exhibits?

Affidavit as exhibit a and a boiler plate "bill" as exhibit B

14. What is the SOL on the debt?

6 years

Story:

xx

So right now I am in the information gathering page, and going to wait another week for experience to properly file my answer and other paperwork to make sure I do it properly.

I did pull my credit report,..xx

more to come... and thanks to others for posting your experience, its helped me already.

Edited January 16, 2012 by Jachred

[BV80]

Be sure to read your court's Rules of Civil Procedure. They'll have information regarding your responses, defenses, etc. You should also include an opposing affidavit.

[bmc100]

Did asset ever send you a notice that they acquired the debt and that you have the right to dispute and ask for validation. AA breaks the FDCPA all the time...Did anyone from AA call you and did they provide the mini-miranda?

I just sued AA over these same things and the debt was not even mine. I doubt AA would have the original contract you signed with Bally's and the proper documentation that they legally hold the debt. The original contract in this case, since it is not a credit card case is really the only way they can prove you owe the amount they claim.

[Jachred]

Did asset ever send you a notice that they acquired the debt and that you have the right to dispute and ask for validation. AA breaks the FDCPA all the time...Did anyone from AA call you and did they provide the mini-miranda?

I just sued AA over these same things and the debt was not even mine. I doubt AA would have the original contract you signed with Bally's and the proper documentation that they legally hold the debt. The original contract in this case, since it is not a credit card case is really the only way they can prove you owe the amount they claim.

No I used to use my parents house as my mailing address until about 2006, due to the fact I moved around ALOT (12 addresses in past 7 years) but in 2008 I started using my real mailing addresses, and Asset never kept up... and still have not, my dad (who has the same name) has called them and told them I don't live there, he don't owe them anything, and leave him alone and if they tag the Jr. on the end he will forward it to my new mailing address, but they chose to sue first. My dad did not tell me about the previous correspondence with them until after the lawsuit.. So this is really the first i heard of it. I have NEVER talked to them. In their complaint they claim an "Installment Contract" But are not suing on breach of contract, but rather "Statement of Account" that is easily to beat. Hopefully I can find a lawyer to take it up and collect on the violations otherwise I am going to have to go it alone... I am sure I can handle the defending part, just not the violations part.

Thank you for your time reading this...

[Jachred]

oh and the reason he knew it was mine is that they gave him my SSN, instead of his.

[BV80]

If the original creditor has an entry on your credit report, when does that entry say is the last time you paid?

[Jachred]

If the original creditor has an entry on your credit report, when does that entry say is the last time you paid?

I just pulled all three.. Bally's is not on there, only ASSET from earliest I think is 7/10

[BV80]

I just pulled all three.. Bally's is not on there, only ASSET from earliest I think is 7/10

Check your bank statements to make sure you didn't pay on the date they state in the Complaint. If there's a possibility this debt is outside the SOL, I'd get copies of my bank statements from 2006. (2007, as well, to be safe). You can get copies from your bank if you didn't save them.

If the debt is outside the SOL, there's your defense.

[Jachred]

Check your bank statements to make sure you didn't pay on the date they state in the Complaint. If there's a possibility this debt is outside the SOL, I'd get copies of my bank statements from 2006. (2007, as well, to be safe). You can get copies from your bank if you didn't save them.

If the debt is outside the SOL, there's your defense.

Well I have a number of different defenses... SOL is the main one. However, I did cancel the contract with Bally's so there really should be no debt in the first place.

Statute of Frauds, Failure of consideration; I cant read the handwriting or I'd tell ya why.. I am in the process of looking them up, and how to properly defend with those.

But the main point I am going to argue, is that the last time I remember paying them (Bally's) was in late 2005, and since they have no documentation to the contrary(Or any documentation), that even if i owed the debt it would be outside the SOL. and argue that since there was no debt they cant sue, and since there was no debt, they could not have purchased said debt, therefore they are not the legal owners of any said debt.

But I am really hoping to score a lawyer to properly write everything for me, although I am still looking on how to word my answer, affidavit, and affirmative defense, and motion to dismiss w/ fees and costs (Since the only thing they provided me with was heresay and therefore not evidence). 600.2145 Open account or account stated; proof, counterclaim

Also having trouble with:

RULE 803. EXCEPTIONS TO THE RULE AGAINST HEARSAY — REGARDLESS OF WHETHER THE DECLARANT IS AVAILABLE AS A WITNESS

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

( the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

© making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Also

Sources of information presented no substantial problem with ordinary business records. All participants, including the observer or participant furnishing the information to be recorded, were acting routinely, under a duty of accuracy, with employer reliance on the result, or in short “in the regular course of business.” If, however, the supplier of the information does not act in the regular course, an essential link is broken; the assurance of accuracy does not extend to the information itself, and the fact that it may be recorded with scrupulous accuracy is of no avail. An illustration is the police report incorporating information obtained from a bystander: the officer qualifies as acting in the regular course but the informant does not. The leading case, Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930), held that a report thus prepared was inadmissible. Most of the authorities have agreed with the decision. Gencarella v. Fyfe, 171 F.2d 419 (1st Cir. 1948); Gordon v. Robinson, 210 F.2d 192 (3d Cir. 1954); Standard Oil Co. of California v. Moore, 251 F.2d 188, 214 (9th Cir. 1957), cert. denied 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148; Yates v. Bair Transport, Inc., 249 F.Supp. 681 (S.D.N.Y. 1965); Annot., 69 A.L.R.2d 1148. Cf. Hawkins v. Gorea Motor Express, Inc., 360 F.2d 933 (2d Cir 1966). Contra, 5 Wigmore §1530a, n. 1, pp. 391–392. The point is not dealt with specifically in the Commonwealth Fund Act, the Uniform Act, or Uniform Rule 63(13). However, Model Code Rule 514 contains the requirement “that it was the regular course of that business for one with personal knowledge * * * to make such a memorandum or record or to transmit information thereof to be included in such a memorandum or record * * *.” The rule follows this lead in requiring an informant with knowledge acting in the course of the regularly conducted activity.

law.cornell.edu/rules/fre/rule_803#rule_902_11

I have to figure out whether or not their last minute statement from me constitutes a "Business Record" or heresy evidence.

..

More reading

[Jachred]

I guess another question is WHO may certify that the record is correct.

Rule 902;

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-©, as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them

[Jachred]

Looks like a winner here

This is what is needed to properly buy the debt in Michigan. They should have some original/copy of original paperwork to back the claim of the debt owed.

600.5225 Proof of claims; contents; verification.

Sec. 5225.

Each proof of claim must be sworn to and must state the actual amount unpaid and owing, the actual consideration thereof, when the same was contracted, when the same has become or will become due, whether any or what securities are held therefor, whether any and what payments have been made thereon, that the sum claimed is justly owing from the assignor to the claimant, and that the claimant has not, nor has any other person for his use, received any security or satisfaction whatever other than that set forth in such proof. When the claim is founded upon an account an itemized statement thereof shall be given and when the claim is founded upon any note or similar instrument, a copy thereof shall be attached and the production of the original may be required by the assignee.

Edited January 14, 2012 by Jachred

[BV80]

An attorney would be great.

However, I did cancel the contract with Bally's so there really should be no debt in the first place.

Did you owe anything on the account at the time you cancelled the contract? Could there have been an early termination fee?

But the main point I am going to argue, is that the last time I remember paying them (Bally's) was in late 2005, and since they have no documentation to the contrary(Or any documentation), that even if i owed the debt it would be outside the SOL. and argue that since there was no debt they cant sue, and since there was no debt, they could not have purchased said debt, therefore they are not the legal owners of any said debt.

Just because they didn't provide much documentation with the Complaint doesn't mean they don't have any more. That's what the discovery process is for. The copy of the bill they already included must be authenticated either by a live witness or by an affidavit. That's the meaning of Rule 803(6). Rule 902(11) explains how a document is "self authenticating" by the means of an affidavit attesting to the validity of the document.

When the claim is founded upon an account an itemized statement thereof shall be given and when the claim is founded upon any note or similar instrument, a copy thereof shall be attached and the production of the original may be required by the assignee.

If I'm not mistaken, there's MI case law which states that failure to attach a copy of an instrument is not fatal to their case. An affidavit from them could serve as prime facie evidence of a debt.

It appears you need to concentrate on proof of ownership. In discovery, you can request that proof of ownership. If you know for sure the debt is outside the SOL, you could request proof of the date of last payment. BUT, I'd make sure I know the date of last payment before bringing it up.

[Jachred]

Thank you again for your reply. I don't exactly remember of the date of last payment, there is no way for me to find out. There may have been a cancellation fee, but I was traveling and well did not keep good documentation(Lesson Learned). I just figured I did everything right, and hoped for the best, never did I think they'd sue. I am hoping for a dismissal based on 1) their lack of records (I hope), I do not want to do discovery if I don't have to 2) Based on information here, I could collect at least $2000 in damages for FDCSPA for a) Filling in wrong juistriction 2) disclosing my information to a third party.

I would even settle for around $200 to make it "Go Away" even though I don't owe them anything at least according to my records.

I will keep reading, I have most of my answer form typed out..

Let me see what you think...

[Jachred]

Complaint

Account Stated

NOW COMES... blah blah

1) Defendant resides within the courts venue and venue is proper in this court

Deny; Untrue. My residence is outside of the courts venue

2) The amount in controversy is within this courts juristriction

ADMIT

3) I had a agreement with OC

Deny; Untrue

4) I defaulted on agreement being shown in exibit A (Affadavit) and exibit B (Statement of account not previously sent to the Defendant)

Deny; Untrue submitted counter-affidavit affirming the same

5) JDB owns the account

Niether agree or deny; Defendant has no knowledge of how JDB acquired this account.

6) JDP Notified me me and I did not pay

Deny; Untrue. This is the first communication I have had with JDB

7) There is due and owing above all counter-claims sum of x

Deny; Untrue

8) They request judgement

No answer; this is a request of the court thus requiring no answer.

Wherefore the Defendant prays the court will dismiss the complaint due to the lack of (Evidence/standing.. cant read the writing) and award Defendant costs and fees.

.... blah blah

Edited January 15, 2012 by Jachred

[BV80]

For #5, I would state:

Defendant has insufficient information to admit or deny and, therefore, must respectfully deny.

On the others, it's not necessary to state "untrue".

[inthesticks]

I'm not sure I would admit #2. The court may have subject matter jurisdiction but if the venue is improper do they have personal jurisdiction?

[Jachred]

I'm not sure I would admit #2. The court may have subject matter jurisdiction but if the venue is improper do they have personal jurisdiction?

No, they wouldn't have personal jurisdiction, but the amount in question is within the courts jurisdiction. Maybe something like

ADMIT; While the court may not have personal justification over the claim, the amount in question is within the limits of the courts jurisdiction.

Reason is, I don't want to come off as an a$$ to the court denying everything, just the important things... if i admit to one i feel like they think I am taking this seriously rather than just a general blow-off.

[legaleagle]

You need to get some records, or they will wipe the floor with you. Obviously, they have something from Bally's that says otherwise, and you admitted to having a Bally's account here. If they are referring to a contract, ask for it in dicovery.

If you don't live too far away, go back to the Bally's where you signed up. Ask the manager if he has a record of the account that shows payments. You should also pay a visit to your bank, maybe they can provide a history of your account in some fashion. It may cost you a few bucks, but you really have to find out the date the last payment was made.

[Jachred]

Thank you for that suggestion... I don't even remember what bank account I had or could of had at the time... But since they Bally's got bought out by LA Fitness I don't even know if they would have any records... Worth a shot.