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Pre-trial questions confusing.


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I never did a DV letter, just filed answer (denied all) and counter claim to their summons and complaint. They did not answer my counter complaint , they sent a summ disp saying basically I didn't know what I was talking about. Since they are OC, the fdcpa does not apply to them, so it should be dismissed and they should be awarded judgement as a matter of law.

So now I have 14 days to return this form from their Summ Disp. The pre-trial statement has 9 questions that I have no idea how to answer. Will summarize and be greatful for any help.

1.Factual statement of claim, including counter claim, cross claim and affirmative defenses. Stated in launguage court can relate to jury.

ANSWER

2.Factual and legal issues to be litagated.

ANSWER

3. If pleadings not satisfactory, what formal ammendments will I request at pre-trial. State why necessary and why not sought prior to pre-trial.

ANSWER

4. Admissions of fact I'm prepared to meet.

ANSWER

5. Admissions of fact I demand from them.

ANSWER

6. List exhibits, evidentiary info reglating to case.

ANSWER

7. _ Jury Trial

_ Bench Trial

8. Estimated time of trial.

ANSWER

9. List witnesses.

ANSWER

My answer to their complaint denied all claims.Asked court enter judsement for me and dismiss with prejudice for lack of evidence and standing.

Counter complaint cited harassmentof multi phone calls a day, threats and asked

for damages of 1000.00,court costs and anything associated with paying fees etc.

They filed the summ disp, then the pre-trial thing and here we are.Want to postpone till I get my income tax refund also. Any advice out there at all??

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If they are an OC and you are claiming FDCPA violations, they are correct. The FDCPA does not apply to them. I hate to say it, but OCs are allowed to harass you a lot more under federal law. If you want causes of action against them, they're going to need to be state claims, and I really do not know much about Michigan consumer law.

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OCs do have more leeway. One difference between an OC and a CA/JDB (assuming the debt is legitimately owed by the debtor being contacted) is that the debtor originally made the choice of the OC to do business with.

Interesting question: If company A buys company B in its entirety, but collects company B's debts as now owned by company A, is company A considered a debt buyer for legal purposes?

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Generally speaking, the FDCPA does not apply to original creditors, so they are probably right that your case against them should be dismissed.

The rest is just routine questions from the court in an effort to schedule the case/trial. They just want to know if you stipulate anything and what the nature of your defenses are.

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What if they put negative information on his/her credit report and defendant disputes it with them? Can Defendant countersue OC for FCRA violations?

According to Sue Your Creditors for $1,000s!

he can sue OC for FCRA violations:

1) Creditors if they report your credit history inaccurately

2) Creditors, if you dispute a debt, and they fail to report it as disputed to the credit bureaus - $1K

3) Creditors or collection agencies, and credit bureaus if they try and “Re-age” your account by updating the date of last activity on your credit report in the hopes of keeping negative information on your account longer ($1K)

Am I right about this one? I have a lawsuit going on where I am the Defendant, and I was wondering whether my OC has also violated the above rules that I can countersue on.

At some point after the lawsuit was filed but before I was served, I sent OC a letter disputing all debt but he did not update any information on my CR, nor is it marked as disputed. Do I have rights to countersue OC for FCRA violations?

Thank you!

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Lets start with the answer:

In Michigan their are three ways to answer an allegation:

1) Admit

2) Deny

3) The Defendant is without knoweldge of this claim and cannot respond to the allegation..which had the affect of a denial. Take a look at one of my posts to see the exact wording.

If you deny, you have to state along with the denial the reason(s) as to why you are denying the claim or allegation.

If you admit, I cannot think off the top of my head which rule of CP it is, but if you admit to a claim or allegation, at trial or MSJ a judge will enter judgment for the Plaintiff without any further litigation.

Please tell us everything that your received regarding the complaint and how you were served. Things like was there an affidavit, account statement, contract or terms and conditions..what was the exact wording in the complaint, who is the attorney to the case..and write out the affidavit as well.

Now to defenses...Unless it is a JDB and not an original creditor, do not use traditional affirmative defenses. Affirmative defenses puts the burden of proof back on you to prove your defense is legitimate. Force the Plaintiff to prove all of their claims.

Next, the MSJ, it is pre-mature for a plaintiff to present an MSJ when you did not have your pre-trial conference yet, so the judge will not rule on it until after discovery has expired. How can you respond to an MSJ without requesting the evidence they have to back it. You can't. For now, focus in on your answer and create a simple counter-affidavit, if they submitted one of their own, then submit an affidavit of denial.

Also, what was your counter-complaint claims?

Edited by bmc100
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I denied w/ reasons to complaint.

Filed counter claim w/answer, alledged violations of fcra/fdcpa.

1. Harrassment- multi calls a day by both attorney and OC

They responded with MSD and said they were not subject to fcra/fdcpa

Now pre-trial statement.

I have found things to suggest THEY ARE subject to subject to violations and a new ones:

1. Pulling cred rep after lawsuit filed.

2. Calling my dad to locate me. Didn't really discuss my debt but couldn't I say

they did?

3. Saying they produced series of statements when they showed one, the

charge off with no other history.

4. Boiler plate cc agreement with no info pertaining to me.

They served me by alternate service (judge granted), there was an affidavit by DB servicing company employee in the complaint that maintain discovers accounts and she reviewed and says account is correct.

I did not do affirmative defences

I did not do a dv letter

All I did was avoid them, got served, answered with denials, counter complained.

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Who is suing you? I read your other posts and you never stated who it is, just the law firm. The attorney can say whatever they want, but they are subject to the FDCPA, especially when their written letters state that they are a debt collector.

Are you referring to discovery with what you refer to as Pre-Trial questions? Are they asking you to admit to questions that they sent you.

Did you attach a counter-affidavit to your answer? Is their affidavit dated within 10 days of the summons?

Do not summarize, write it out with the exception of your personal information.

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BMC 100, Thanks for your help.

Discov Bank suing. Attorneys stuff all says debt collector trying to collect etc.

Not discovery, Pre-trial questions are directly from the court. They are asking for me to

1. state factual statement of claims regarding case

2. what are factual/legal issues to be litigated

3. if pleadings not satisfactory, what formal ammendments will I ask for at pre-trial

4. addmissins of fact I'm prepared to meet

5. addmissions of fact I want from them

6. list and bring exhibits and evidentiary info

7. jury or bench trial

8. est. time of trial

9. List witnesses I plan to call at trial

Again, these were asks by court.

I did not attach counter affidavit, just counter complaint to their summons.

Their affidavit is dated in June, they tried to serve in Aug, never did. They refiled in Nov. and used the same June affidavit.

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BMC 100 - ALSO-

They mailed a "notice of hearing", that motion will be brought for hearing before judge xxx on feb 23 or as soon thereafter. With that was the "mot summ disp" that says " Now comes plaintiff Capital One Bank", HA HA, I know it's a typo but does that not fall under

Bona Fide error of law FDCPA- 1692k (a), etc.

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So, you have not even had a pre-trial conference yet. They served you with a summons and you answered it. OK..Got it.

Now, the pre-trial questionaire is standard practice..It is a summary of what you have put in your answer and summatrizing what your defense is. I would not state in the questionaire your defense is a lack of standing.

Look at what was or was not attached to the complaint. Again, was their an affidavit? If so, was it dated within 10 days of the summons?

Did they attach any statements to the complaint?

Did you at any time throughout the life of this account, contest any charges and they did not respond or correct your dispute?

Again, summary disposition is too pre-mature for a judge to rule on. So, I would not worry too much about it until after discovery. If the judge does rule on it, you can appeal. A pre-trial conference is not a hearing to rule on motions. there would be a separate motion hearing for it.

Looking at your next post, it is pre-mature to rule on a motion without issuing discovery..

are you on the west or east side of the state?

List of witnesses: You are going to subpoena the affiant as your witness to offset their evidence.

Est. time of trial: 1 Hour

Bench Trial

I will provide admissions of fact during discovery

Evidence will be collected during discovery

Your admissions: I denied the account as stated in the Plaintiff's complaint

If new issues come to light or evidence, I reserved my right to amend my answer.

What are the legal issues: they should be in the complaint and within your answer.

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Generally speaking, the FDCPA does not apply to original creditors, so they are probably right that your case against them should be dismissed.

The rest is just routine questions from the court in an effort to schedule the case/trial. They just want to know if you stipulate anything and what the nature of your defenses are.

There can be FDCPA violations from the attorney representing the OC..So you will want to not use a counter-complaint, but file a separate complaint against the attorney and their collections department for excessive phone calls as long as you have a record of them. They will dismiss the counter-claim, but file a complaint against the attorney/CA.

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Hi BMC 100- and all

No lack of standing, OC

Affidavit attached and dated 5 months before I was actually served (and yes, I plan to call them as a witness)

ONE statement attached (the charge off) with no payments, charges fees or interest

They said a SERIES was provided

Boilerplate agreement with no identifiers

Never disputed anything

I am on east side

I already filed counter claim w/answer. Discover OC and I feel falls under debt collecter provision also.Discover also pulled my credit report after suit was filed. If they pulled it regularly, their in violation. If they pulled it for investigative, their in violation because they were supposed to notified me.

Think this could get them in trouble big time with FDCPA.

Any thought on Bona Fide Error of Law - There are alot of errors and inconsistencies.

How about a motion to dismiss?

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this one

What IF...

What if they put negative information on his/her credit report and defendant disputes it with them? Can Defendant countersue OC for FCRA violations?

According to Sue Your Creditors for $1,000s!

he can sue OC for FCRA violations:

1) Creditors if they report your credit history inaccurately

2) Creditors, if you dispute a debt, and they fail to report it as disputed to the credit bureaus - $1K

3) Creditors or collection agencies, and credit bureaus if they try and “Re-age” your account by updating the date of last activity on your credit report in the hopes of keeping negative information on your account longer ($1K)

Am I right about this one? I have a lawsuit going on where I am the Defendant, and I was wondering whether my OC has also violated the above rules that I can countersue on.

At some point after the lawsuit was filed but before I was served, I sent OC a letter disputing all debt but he did not update any information on my CR, nor is it marked as disputed. Do I have rights to countersue OC for FCRA violations?

Thank you!

I think you can get them on FCRA violations. you can modify your counterclaim later. check your credit report and see if you can stick it to them. for example, send a letter certified mail to OC disputing debt in its entirety and then check if they update the status on your credit report.

Edited by flashback
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also, did you check into Arbitration strategy? it could work out for you if you follow the process- just google it on this site and others on how to Motion to Compel Arbitration.

do all the research on arbitration and see if that's the route you want to take. then file paperwork as soon as possible before it's too late. the window is short.

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Flashback,

To sue under the FCRA, it takes a lot of documentation to do so. First, if someone wanted to sue under the FCRA, they would have to send a written request to the CRA stating there is inaccurate information on your credit report and then let them investigate your dispute. Then after the investigation is complete and the information came back as verified, then you have to send a written dispute to the creditor who is furnishing information to the CRAs. Remember, unless it is a JDB, an OC does not have to remove information from your credit reports, but rather update inaccurate information.

If the OC updates their information..it is done..you cannot sue. If they do not update the information and provides you with their reasoning as to why they feel this information is correct, then you have no recourse.

Then after that, you can send another dispute to the creditor and CRAs with additional information backing your claim. By this time, you are looking at 4-6 Months worth of correspondences.

If it is a JDB or CA furnishing this information..you have FDCPA claims and you will get $1,000.

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I don't agree. Not from what I read.

Credit report is also not permissible if suit has been filed already. Depends on how they requested it. If for investigative, which it would have to be after suit filed, they MUST make contact with you, which they did not. If received under any other, then its a violation cuz suit already filed.

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BMC,

I agree with your assertion.

To sue under the FCRA, it takes a lot of documentation to do so. First, if someone wanted to sue under the FCRA, they would have to send a written request to the CRA stating there is inaccurate information on your credit report and then let them investigate your dispute. Then after the investigation is complete and the information came back as verified, then you have to send a written dispute to the creditor who is furnishing information to the CRAs. Remember, unless it is a JDB, an OC does not have to remove information from your credit reports, but rather update inaccurate information.

If the OC updates their information..it is done..you cannot sue. If they do not update the information and provides you with their reasoning as to why they feel this information is correct, then you have no recourse.

Then after that, you can send another dispute to the creditor and CRAs with additional information backing your claim. By this time, you are looking at 4-6 Months worth of correspondences.

If it is a JDB or CA furnishing this information..you have FDCPA claims and you will get $1,000.

OP has to start the above process now in order to stick it to OC.

I know he can't sue OC under FDCPA, that's why he has to go the FCRA route I suggested and on which you have elaborated.

I wish OP had done a timely DV letter, as it could have given you an additional reason to sue the attorney if they would have filed before validating. In either case, any FDCPA violations need to be asserted against the collection attorney separately from OC.

OP- get an understanding of this FCRA strategy and start pursuing it now. Once you complete it and assuming it works out as intended, you can modify your counterclaims and add FCRA violations to it.

it's a shot that may or may not work out, but at least you have a chance of adding it to your counterclaims which will offset the claims against you.

I'd love to know what Coltfan thinks about this approach. Coltfan, any thoughts?xangelx8]

Edited by flashback
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The FCRA would be much more useful against an OC if they have information that you know is inaccurate and that you know they cannot prove on your report and it is also the same as some of the information in the complaint against you. You still have the time of correspondence to deal with too.

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but OCs are allowed to harass you a lot more under federal law Not true at all. Just because they are the OC does not give them the right as a matter of law to harass you. You just have to find other laws that apply.

If they are harassing you by telephone, with an automated dialer, and calling several times a day,week or month then the Graham leech-bliley act does apply to an OC. Also known as the TCPA,,,telephone consumer practices act.

go here Michigan Legislature - Section 445.252

read the REGULATION OF COLLECTION PRACTICES (EXCERPT)

Act 70 of 1981 section 445.252 Prohibited acts.

2. Calling my dad to locate me. Didn't really discuss my debt but couldn't I say they did? read this Michigan Legislature - Section 445.258

Edited by BTO429
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