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Need help with filling out my written pre-trial statement in Michigan


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I received a summons and complaint from Mary Jane Elliott, in Michigan, attorney for Midland Funding LLC. I prepared my answer and denied everything and filed with the court. Also sent copy to Attorney's office via Certified mail. Now I have received a Written Pre-Trial Form from the court. It asks the following questions which I have no idea what they mean. Can someone please help me.

1."Concise statement of issues:" I assume I would just write that I have no knowledge of this debt and would like to have proof that I actually owe anybody anything.

2. "Is discovery complete:" I don't know what this means or what I should write.

3. "Are there amendments to the pleading to be filed? What are the nature of the amendments?" I have no idea what that means either.

4. Are admissions of fact and documents possible to avoid unnecessary proof: The nature of the admission: Time required:" ??Don't understand this either.

5. "Witnesses: Exhibits:" ???

6. "Settlement possible:" Don't know what to put here either as I don't think they can prove that I owe them anything.

7. "Jury Trial:" ???

8. "Have all claims arising out of the transaction or occurrence that is the subject matter of the action been joined as required by subrule MCR 20203(A)?" Totally lost here!

9. "Are there any motion to be filed prior to trial: Nature of motions" Don't know

10. "Any other matters to assist in the disposition of the action:" I guess not??

I know I am clueless and should probably get a lawyer but I can't afford one. Any help is greatly appreciated.

Also...just so you have all the info. The Summons and Complaint that I was sent had an affidavit attached from Midland Funding. The Complaint basically just said that that I owed them xxxxx amount of dollars for GE Money account number xxxx-xxxx-xxxx. The thing is I have no record or knowledge of a credit card with that account number. So I want them to prove that this is my debt and I owe it to them. In my answer I just basically denied everything stating that I had no such account and wanted them to provide documentation that it belonged to me. Sorry this is so long :( But thanks in advance!!

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http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read.html

Hi, first, it would be helpful if you answer the questions listed in the link above. Remove all identifying information and round all dollar values off.

There are a number of posters from MI here who are familiar with its courts. The good news is that a number of posters have beaten Midland at trial. The bad news here is that it looks like you might be fairly far into the process. There's still hope though, if you are willing to put your nose to the grindstone.

Oh, and the other good news is that you denied everything.

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:)++ TotallyLost!

First question: Did they have an affidavit filed with the Summons and Complaint?

Second Question: Did you file (with your answer OR within 10 days after filing) a "Counter Affidavit"????

If the first question is answered yes and the second question answer is no, they you need to get busy writing up a counter affidavit!!!

Other CIC members will be by soon to chime in.... and just keep reading and learning!! You can beat them!!!

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Without any further info, I assume you will fight this because Midland is easier to beat than most. I'll take a shot at the answers for you.

1."Concise statement of issues: This is an action to recover on a credit card debt which defendant denies in its entirety, based upon lack of standing to sue.

2. "Is discovery complete:

Discovery has not been conducted at this time.

3. "Are there amendments to the pleading to be filed? What are the nature of the amendments?"

There are no amendments at this time, defendant will proceed according to the rules of procedure should any arise.

4. Are admissions of fact and documents possible to avoid unnecessary proof: The nature of the admission: Time required

There are no admissions of fact and / or documents pending discovery proceedings.

5. "Witnesses: Exhibits: Defendant cannot formulate a witness list or exhibits list at this time, pending discovery.

6. "Settlement possible

No settlement has been requested nor is any likely, as defedant avers he / she owes not one penny to plaintiff.

7. "Jury Trial:

Absolutely

8. "Have all claims arising out of the transaction or occurrence that is the subject matter of the action been joined as required by subrule MCR 20203(A)?

No claims or interested parties are necessary to be joined, nor are any expected. All necessary parties are properly involved at this time.

9. "Are there any motions to be filed prior to trial: Nature of motions:

Considering the early stage of the litigation, it is difficult to adequately respond, although it is likely that motions will be filed. Possible motions could be a more definite statement, motions to compel related to discovery, motions to strike / preclude evidence, and summary disposition.

10. "Any other matters to assist in the disposition of the action:

None at this time.

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Oh my... thank you so much for all your responses. And to answer your questions. Yes they did have an affidavit filed with the summons and complaint. And no I did not file a counter affidavit. Is that something I can still do? Is there info somewhere on what my counter affidavit should say? I have until March 8th to file my written pre-trial statement. Should I get the counter affidavit filed before my pre-trial statement?

The Affidavit that was filed with the Summons and Complaint was dated Oct. 17, 2011 and the Summons was filed Dec. 23, 2011 and it is from someone at Midland Funding...if that means anything. I thought I read somewhere that they had to be dated within 10 days of each other but I don't know if that pertains to me.

And yes, I plan on fighting this but I just hope I'm not wasting my time by not doing things correctly as this is a first for me and I really am learning as I go. Thanks very much and I'm eager to read more about what you all have to say. Thanks a million!!

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Oh my... thank you so much for all your responses. And to answer your questions. Yes they did have an affidavit filed with the summons and complaint. And no I did not file a counter affidavit. Is that something I can still do? Is there info somewhere on what my counter affidavit should say? I have until March 8th to file my written pre-trial statement. Should I get the counter affidavit filed before my pre-trial statement?

Ouuuchh.... that is your number one thing to get done. and PRONTO! You might have to file an amended answer to file it with your answer--when did you file your answer? More than 10 days ago? If not, then you can still file it. ... I hope more learned Michigan people will chime in soon for you.... Read the thread AntiqueDave posted on MCL 600.2145 Affidavits today... it will help give you a leg up on things...

The Affidavit that was filed with the Summons and Complaint was dated Oct. 17, 2011 and the Summons was filed Dec. 23, 2011 and it is from someone at Midland Funding...if that means anything. I thought I read somewhere that they had to be dated within 10 days of each other but I don't know if that pertains to me.

Si, ... to quote Miss Britney "Oops! I did it again!".... :mrgreen: I guess rules of court don't mean anything to these yahoos (MCL 600.2145) So you can use that to get it stricken, but it is better if you also have your counter affidavit filed against it too....

And yes, I plan on fighting this but I just hope I'm not wasting my time by not doing things correctly as this is a first for me and I really am learning as I go. Thanks very much and I'm eager to read more about what you all have to say. Thanks a million!!

You are here... now you learn. And sometimes the best teacher is "learning by doing".

Read, read, and read again... QUESTION EVERYTHING!!! And I mean EVERYTHING! Never assume.... you never know what you might uncover... ;)

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I filed my answer last Monday so 7 days ago. So do I still have time to file a counter affidavit?

Meraviglioso! You barely have time, but you can do it!!!

CALLING ALL HELPERS!!! Newbie needs help with Counter Affidavit!!!!

You should get some members in here soon, so be ready to start the information download!!!

EDITED TO ADD:

Here's a thread I started to help Michigan people get started... don't post in the thread... I haven't finished it yet!! :lol: It's more of a "reference library" not a question and answer thing.... that is what your individual threads are for... ;)

http://www.creditinfocenter.com/forums/there-lawyer-house/310515-answering-summons-complaint-michigan.html

Edited by MamaCaldo
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Ok so #1 thing on the to-do list - get counter affidavit filed. And so so you're saying that the fact that the Summons and Complaint wasn't filed withing 10 days of the Affidavit means that I can use that to have the Affidavit stricken? And how would I do that? Would that be included in my Counter Affidavit?

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Ok so #1 thing on the to-do list - get counter affidavit filed. And so so you're saying that the fact that the Summons and Complaint wasn't filed withing 10 days of the Affidavit means that I can use that to have the Affidavit stricken? And how would I do that? Would that be included in my Counter Affidavit?

You can include that information in your counter affidavit (that the affidavit is "out of date" ie: signed and dated more than 10-days before the complaint was filed with the court. This is NOT to be confused with "untimely filing" meaning that the paper affidavit was filed with the court outside of that timeline. Two different things.)

Personally, if I were you, I would get that counter affidavit research started, and get a rough draft going. Then understand that after the PreTrial, they are most likely going to hot-foot it over to the court clerk and file a Motion for Summary Judgment (known as Dispositon in MI, but here on CIC you would search for "summary judgment" to find threads to help you...)

But in the meantime, after you get that counter affidavit done and filed, then you need to get that PreTrial paperwork finished. If I were you, I might even be tempted to send "First Request for Document Production" (aka: Discovery of just the documents), just to get the ball rolling, and give them a bit of a jolt. That way at PreTrial, you can tell the judge that discovery has been started.... thus the judge might not be inclined to limit or deny discovery, and if they try to file for MSJ, you can say "premature as discovery is not yet complete!"

Just some things to chew on.... xangelx

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Hold up...First, please type out your answer and their complaint to see what cause of action they are using. I know you said you denied their claims, which is good that you did. Per MI Civil Rules, if you admitted to anything, the court has the power to rule in favor of the Plaintiff.

Per MI Civil Rules, if you deny a claim or allegation, you have to state the reason why you denied.

Next, forget about the affidavit they attached to the complaint. It was dated more that 10 days from the summons, so the court cannot weigh it as prima facie evidence. It becomes a non-issue.

What defenses did you use?

Did Midland attach a bill of sale to the complaint?

The pre-trial questionaires are standard, it is a summary of what the case is all about that can be easily explained to the judge.

Midland is very beatable, but learn about the judge that is assigned to your case. Some judges are completely pro-creditor regardless if the Plaintiff can prove their case or not.

Once you go to pre-trial, the judge will issue next steps like discovery, case evaluation or if their is anything either party needs. It goes quick, probably no more than 5 minutes, but before your case is called, the attorney will come to you to try to press you into a stipulated settlement. DO NOT AGREE!!!! Do not admit anything to them, the attorney will push you and push you and try to scare you. DO NOT FALL FOR IT!!

Take the time to write out the complaint and your answer. I can help you...I am two for three in defending credit card suits. The first one, I did not know what I was doing, so I lost. The next one was dismissed with prejudice. Then recently my wife was sued directly by GE Money Bank and I had them beat, but my wife settled at trial for $1,000 on a $4500 debt cause I was not able to be there to help her and she did not know what she was doing.

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Ok say I don't have to worry about filing a Counter Affidavit? Midland did not attach anything to the complaint besides the Affidavit. I will type out their complaint and my answer so you can see what's going on here. Basically my defense is that I have no record of this account that they are suing me for and I want them to show me documentation that this account even belongs to me and that they have legal rights to collect it from me.

SUMMONS AND COMPLAINT

Midland Funding LLC as Successor in Interest of GE Money Bank

vs.

Me

--------------------------------------------------

Mary Jane Elliott PC

Novi, MI

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

2. Plaintiff's Midland Funding LLC predecessor in interest is GE MONEY BANK.

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

4. Plaintiff's Assignor sent statement on account number xxxxxxxxxxxxxxx (which I have no record of) 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 and Paintiff'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 attched.

8. Defendant is now justly indebted to Plaintiff over and above all legal counterclaims, in the amount of $1xxx,xx.

Plaintiff requests that this court enter judgement against Defendant in the amount of $1xxx.xx plus interest, cost and attorney fees.

I declare that the complaint information and attached is true to the best of my knowledge.

Date - Dec 23, 2011 Signature of attorney/plaintiff

Subscribed and sworn before me 12-23-11, Oakland Michigan

My commision expires 7-18-14 Signature of Deputy Clerk/Notary public

------------------------------------------------------------------------------

ANSWER

Defendant

1. Admit.

2. Do not have knowledge sufficient to Admit or Deny.

3. Denied: Responding party objects to this request on the grounds that defendant has no such aggrement with Plaintiff's Assignor.

4. Denied:Defendant has no such account with Plaintiff's Assignor and has never received any statements for stated Account#xxxxxxxxxxxxxxxx.

5. Denied: Defendant has no knowledge and has never received and documentation of a balance owed to the Plaintiff or Plaintiff's Assignor.

6. Denied: Defendant has no knowledge or documentation of such account.

7. Denied: Plaintiff has not proven the debt is valid.

8. Denied: The Plaintiff must prove that the principal, interest, collection costs and attorney's fees are all correct. Defendant also insists that the Plaintiff come up with the contract signed be the defendant, account statements and purchase receipts to prove that the defendant is justly indebted to the plaintiff.

Furthermore, Defendant believes that the court would unjustly enrich the plaintiff by granting the relief sought herein.

Wherefore, the defendant asks the Court to Order the Plaintiff to Comply with defendants request to provide proof of debt within 30 days and for Dismissal with prejudice for failure to do so.

Date 2-8-12 Signed Defendant

Certificate of Service First class mail 2-8-12.

------------------------------------------------------------------------------

Please let me know what you think and what I need to do next as far as my written pre-trial statement question form. Thanks so much you have no idea how much I appreciate your help!!

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This is the affidavit that they attached to the Complaint.

Midland Funding LLC,

Plaintiff

Affidavit Of xxxxxx xxxxxx (lady's name)

-vs-

xxxx xxxxx

Defendant

---------------------------------------------------------------------

xxxxxx xxxxx (lady's name), whose business is 16 Mcleland Rd Suite 101, St. CLoud, MN 56303, certifies and says:

1. I am employed as a Legal Spe******t and have access to pertinent account records for Midland Credit Management, INc. ("MCM"), servicer of this account on behalf of plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained of plaintiff's behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's GE MONEY BANK account xxxxxxxxxxxxxxxx (MCM Number xxxxxxxxxx) ( herinafter "the account") I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on plaintiff's behalf.

2. The account shows that the defendant owed a balance of $xxxx.xx (just over a thousand dollars); and I am advised that such balance will continue to accrue interest at the rate set forth in the cardholder agreement/original contract and /or as required by law, until suit is filed, after which interest on the unpaid balance shall accrue as required by law and as set forth within the terms of the statute.

I certify under penalty of perjury that the foregoing statements are true and correct to the best of my knowledge.

Date - Oct. 17th 2011

Signed - (Lady Name from MCM)

STATE OF MINNESOTA

COUNTY OF STEARNS

Signed and sworn to (or affirmed) before me on Oct. 17 2011 by ( lady's name)

Signed - Lady Notary Public

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Lets start with your their complaint:

1. Make them prove your correct address as to where GE's account statements were mailed. They might have one or two statements to use as evidence.

2. In order for them to prove they are the predecessor to GE, they have to have a bill of sale showing your name and account number with an endorsement from GE. I doubt they have that and though the court does not make it manditory, they should have attached it as an exhibit to the complaint.

3. First cause of action is Account Stated. Account stated is a series of transactions between parties where there is a promise to pay. Did you even transact business with Midland? No

4. Did they attach any account statements to the complaint from the start of the account to the end of the account? I doubt it. Two they would still have to prove standing.

5. Do they have anything from the assignor showing demand for payment? I doubt it.

6. Default on account, they still have to prove that this is your account and they have standing.

7. Is there an affidavit from GE stating what they claim..if not..too bad Midland.

8. How can they prove if the amount they are claiming is correct if they do not have all account statements, all agreement, amendments and modifications and two an affidavit from GE stating that the amount of the account they sold is true and correct.

For an amount this small, you should have reserved your right to arbitration.

What retail store is this credit card from?

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Lets look at your answer: Which you may or may not want to amend to reserve certain rights that you have:

1. In response to paragraph one, the Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial.

2. In response to paragraph two, the Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial. The Plaintiff has not established standing by providing proper documentation of assignment.

3. In response to paragraph three, the Defendant denies this allegation. The defendant has not established an affidavit from the Plaintiff's assignor stating if there was a relationship between GE and said Defendant. Furthermore the Plaintiff has failed to follow MCL 600.2145 by attaching an affidavit of account dated more than 10 days of the summons, therefore the affidavit should not be used as Prima Facie evidence.

4. In response to paragraph four, the Defendant denies this allegation. The complaint states that this alleged account was billed monthly, but there is only one statement from 2009 with no payment history, billing history or if the account in question was initiate by the Defendant. In order for the Plaintiff to prove their claim, the Truth In Lending Act 15 U.S.C. 1643(B), states in any action to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show the use of the card was authorized, then the burden of proof is upon the card issuer to show the conditions of liability for the unauthorized use of the credit card.

5. In response to paragraph five, the Defendant denies this allegation. The Plaintiff has not set forth any proofs that the Defendant has failed, refused or neglected to pay the full monthly payment when due or shown by the Defendant. Furthermore, the Plaintiff has failed to abide by MCR 2.113(F)(1)(B)...

6. In response to paragraph six, the Defendant denies this allegation. The Plaintiff has failed to prove liability of the account, the Defendant is without knowledge of the account and a blanket statement of liability by the Plaintiff is not enough to prove this allegation. Furthermore, the Plaintiff would have to prove that the Defendant was the one who made payment on the alleged account, which so far they have failed to prove.

7. In response to paragraph seven, the Defendant denies this allegation. The Plaintiff cannot rely upon MCL 600.2145 “Account Stated” or Open Account. MCL 600.2145 specifically states that a copy of said account, a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced within 10 days of the summons. The attached affidavit was dated almost two months prior to the summons. Furthermore, the Plaintiff's affidavit is hearsay as it is not based upon the first hand knowledge of the assignor, but that of a second party to the alleged account.

8. In response to paragraph eight, the Defendant denies this allegation. The Plaintiff has failed to establish assignment of the alleged account and thus even if everything in their account is true, they lack standing to enforce a cause of action.

This is to give you an idea.

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Ok so #1 thing on the to-do list - get counter affidavit filed. And so so you're saying that the fact that the Summons and Complaint wasn't filed withing 10 days of the Affidavit means that I can use that to have the Affidavit stricken? And how would I do that? Would that be included in my Counter Affidavit?

http://www.creditinfocenter.com/forums/1131073-post24.html

http://www.creditinfocenter.com/forums/1130042-post50.html

and this for even more http://www.creditinfocenter.com/forums/1147211-post110.html

I have more on the board maybe I will make a sticky about the files I already have here.

Edited by Seadragon
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Hold up...First, please type out your answer and their complaint to see what cause of action they are using.

Ahhhh... bmc!! The voice of reason.... he is right. Glad you posted the details TotallyLost!!

But I still say get a Counter Affidavit written up, signed and notarized. CYA!! Always C.Y.A.!!! Let's say you go to court... Judge says "aaaww, it's not that far out of date..... I'll let it go. Where's your counter affidavit to rebutt their affidavit? You don't have one? Geeee that's too bad!...."

Cover Your Culo!!! WRITE ONE AND SUBMIT IT!!!! And as I said the other day...

Read the thread AntiqueDave posted on MCL 600.2145 Affidavits today... it will help give you a leg up on things...

Si, ... to quote Miss Britney "Oops! I did it again!".... :mrgreen: I guess rules of court don't mean anything to these yahoos (MCL 600.2145) So you can use that to get it stricken, but it is better if you also have your counter affidavit filed against it too....

*snipped* Once you go to pre-trial, the judge will issue next steps like discovery, case evaluation or if their is anything either party needs. It goes quick, probably no more than 5 minutes, but before your case is called, the attorney will come to you to try to press you into a stipulated settlement. DO NOT AGREE!!!! Do not admit anything to them, the attorney will push you and push you and try to scare you. DO NOT FALL FOR IT!!

Take the time to write out the complaint and your answer. I can help you...I am two for three in defending credit card suits. The first one, I did not know what I was doing, so I lost. The next one was dismissed with prejudice. Then recently my wife was sued directly by GE Money Bank and I had them beat, but my wife settled at trial for $1,000 on a $4500 debt cause I was not able to be there to help her and she did not know what she was doing.

Si! bmc100 has great knowledge and experience that is very valuable to us from Michigan!!! Could not do without him!! xangelx

Ok say I don't have to worry about filing a Counter Affidavit?

Si, .... I'd get that going AND maybe consider amending your answer too... needs more "meat" and the bello CIC members will be coming to offer their ideas I'm sure....

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You need to start discovery. BMC100 can give you the format for MI. Ask them these questions:

Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

Interrogatories

1. State with specificity the choice of law provision in the alleged cardholder agreement.

2. State whether or not Plaintiff is bound by the statutes of the choice of law provision GE Money Bank chooses in their cardholder agreement.

3. State whether or not the alleged cardholder agreement fully explains the statutes by which the cardholder is allegedly bound

4. If the response to 3 was in the negative, explain why GE Money Bank refuses to divulge to the consumer the statutes under which they are allegedly bound

5. If the response to 3 was in the affirmative, state the specific statutes that apply.

6. If the response to 2 was in the negative, state why GE Money Bank is not bound by the choice of law their customers are supposedly bound by.

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  • 3 weeks later...

I received a copy of the written pre-trial statement from the plaintiff yesterday. I thought I would share this with you so you can maybe help me narrow down what I need to say in my statement. I did not file a counter affidavit because I ran out of time to get it filed with my answer that was already filed. So basically I need some advice on what to do going forward. I need to file my pre-trial statement by the 8th (in 6 days). How do I start the discovery process to make them show evidence that this is my account and they own it? I am slightly overwhelmed so please bare with me :)

PLAINTIFF PRE-TRIAL STATEMENT ( MIDLAND FUNDING LLC / MARY JANE M.ELLIOTT

In lieu of an in-court pre-trial conference, the parties are directed to complete and file this Pre-trial Statement in accordance with MCR2.401 withing 28 days, with copy to opposing counsel. Any party desiring to appear before the Court for purpose of pre-trial may request same by noting such request herein. Failure to timely comply with these requirements will subject the offending party to sanctions per MCR 2.401 (F).

1. Concise statement of issues: Defendant applied for and was extended credit by Plaintiff's Assignor, in exchange for Defendant's promise to remit monthly payments on any credit extended. Plaintiff performed as agreed and did extend credit to Defendant. Defendant had full use and enjoyment of the credit extended but failed and/or refused to remit repayment in full for the extension of credit. Plaintiff continued to satisfy the indebtedness owing to Plaintiff without explanation. Defendant has not disputed any of the billing statements or transaction reports relative to this account.

2. Is Discovery complete: NO

If not, additional time requested: 90 Days

3. Are there amendments to the pleading to be filed? NO

4. Are there admissions of fact and documents possible to avoid unnecessary proofs?YES

The nature of the admissions: Defendant admits that he is indebted to the Plaintiff in the amount of 1,xxx.xx.

5.Witnesses: Plaintiff/Plaintiff's Assignor's records keeper, Defendant, any witnesses listed by Defendant and any rebuttal witness that may become necessary.

Exhibits: Account history/statements, correspondence and pleadings.

(A final witness and exhibit list is to be exchanged and filed with the court 10 days prior to trial.)

6. Settlement Possibility: Settlement is likely.

7. Jury Trial: NO

Estimated length of trial: 3 hrs.

Time requested for trial notice: 30 days

8. Have all claims arising out of the transaction or occurrence that is the subject matter of the action been joined as required by subrule MCR 2.203(A)? YES

9. Are there any motions to be filed prior to trial? YES, Plaintiff's Motion for Summary Disposition

10. Any other matters to assist in the disposition of the action: NO

The statements herein are true to the best...blah blah blah

Feb 22, 2012 signed plaintiff's attorney

-------------------------------------------------------------------------------------

What do you think???????

Edited by totallylost
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  • 3 weeks later...

I hope you countered with 60 days for discovery. I hope you marked yes, to amend your answer to reflect the rules of procedure and add defenses. Your counter is that you did not admit to the debt in the Defendant's answer. Then state, yes a Motion to Compel Abritration.

Midland's attorney is working on a house of cards. He wants to use a slight of hand to get the MSJ past you. There is still no documentation on the asignment of the debt showing your name and account number. One of your defenses is a Lack of Standing. If you do not put it as a defense in your answer, the Plaintiff may not have to show standing to get a judgment.

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I hope you countered with 60 days for discovery. I hope you marked yes, to amend your answer to reflect the rules of procedure and add defenses. Your counter is that you did not admit to the debt in the Defendant's answer. Then state, yes a Motion to Compel Abritration.

Midland's attorney is working on a house of cards. He wants to use a slight of hand to get the MSJ past you. There is still no documentation on the asignment of the debt showing your name and account number. One of your defenses is a Lack of Standing. If you do not put it as a defense in your answer, the Plaintiff may not have to show standing to get a judgment.

Below is what I filed with the court so far. And I don't know how to phrase a counter with 60 days for discovery...

Defendant’s Affirmative Defenses:

1. Plaintiff has failed to state the basis of the law suit. Defendant has not violated the law in any way.

2. Plaintiff has failed to provide a signed credit card application and contract between Chase bank and the Defendant.

3. Plaintiff has failed to establish assignment of the alleged account and thus even if everything in their account is true, they lack standing to enforce a cause of action.

4. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

5. Plaintiff has failed to follow MCL 600.2145 by attaching an affidavit of account dated more than 10 days of the summons, therefore the affidavit should not be used as Prima Facie evidence.

6. The Plaintiff has failed to prove liability of the account; the Defendant is without knowledge of the account. Furthermore, the Plaintiff would have to prove that the Defendant was the one who made payment on the alleged account, which so far they have failed to prove.

7. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. § 1692e(2)from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed.

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

WHEREFORE, Defendant prays that the court take nothing of Plaintiff's Complaint by virtue and dismisses the complaint with prejudice.

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I hope you countered with 60 days for discovery. I hope you marked yes, to amend your answer to reflect the rules of procedure and add defenses. Your counter is that you did not admit to the debt in the Defendant's answer. Then state, yes a Motion to Compel Abritration.

I also filed this with the court

Comes now the Defendant, and files this Request to Strike Exhibits and Affidavits as follows:

1. Exhibit 1 is a Bill of Sale between Chase Bank and Midland Funding, LLC

The Bill of Sale does not detail Defendant’s name or alleged account number.

The Bill of Sale does not validate the transfer of the alleged account number cited in the complaint.

The Plaintiff has failed to provide any documented evidence linking the Bill of Sale to the alleged account, or to the Defendant.

The Plaintiff has failed to provide any documented evidence of the assignment of the alleged account to Midland Funding, LLC and therefore, Defendant requests the Court to strike the Bill of Sale from the claim.

2. Exhibit 2 is an affidavit by xxxxx who certifies that the Plaintiff’s statements are true and correct to the best of her knowledge.

Plaintiff has failed to establish the identity of Jennifer Jenderseck as it relates to their claim. Affiant lacks sufficient personal knowledge to testify to the validity or the assignment of the claim.

Exhibit 2 has no bearing of case caption stating Defendant’s name or State and County of Court, therefore, Defendant requests the Court to strike this affidavit from the claim.

3. Exhibit 3 is a Closing Statement between Chase Bank and Midland Funding, LLC

The Closing Statement does not detail Defendant’s name or alleged account number.

The Closing Statement does not validate the transfer of the alleged account number cited in the complaint.

The Plaintiff has failed to provide any documented evidence linking the Closing Statement to the alleged account, or to the Defendant.

The Plaintiff has failed to provide any documented evidence of the assignment of the alleged account to Midland Funding, LLC and therefore, Defendant requests the Court to strike the Closing Statement from the claim.

Is it too late to counter? If not, would you please show me how to phrase it? Thanks sooooo much

Edited by Heeeelp
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I hope you countered with 60 days for discovery. I hope you marked yes, to amend your answer to reflect the rules of procedure and add defenses. Your counter is that you did not admit to the debt in the Defendant's answer. Then state, yes a Motion to Compel Abritration.

When you say countered, do you mean counterclaim or counter affidavit? ... you lost me.

How do I file counter affidavit? I still got no answers....

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