Sign in to follow this  
MIFighter

Pre-trial coming up, have not received anything but a date???

Recommended Posts

I am sorry everyone, but I just ran across another Interrogatory that I need help with:

"For each allegation to which you have denied, provide the factual and legal basis for the denial and provide an explanation of all evidence the defendant will rely upon to support their position."

This sounds like bull-malarky to me. I denied everything - they are below. Do I need to answer this? If so, how do I answer it?

--AND---

Do I need to answer each one with a legal basis for the denial? If so, suggestions please.

---AND---

Do I need to need to explain what evidence I will rely on to support my position? If so, help/suggestions/strategies... help!

All of the "Requests to Admit" and my answer:

1. You received the Credit Card. -Deny

2. You activated the Credit Card. -Deny

3. The Credit Card was issued on the Account. -Deny

4. You used the Credit Card. -Deny

5. You personally opened the Credit Card in your name. -Deny

6. You received the Cardholder Agreement regarding the Credit Card Account.

-Deny

7. You made one or more payments on the Account after using the Credit Card. -Deny

8. You personally used the Credit Card to make purchases and/or receive cash advances. -Deny

9. You received bills on a monthly basis from the Issuer which detailed all charges on your Account. A portion of the statements are attached as Exhibit A. -Deny

10. Plaintiff is the current owner of the debt owed on the Account. -Deny

11. Plaintiff is the correct entity entitled to receive payment on the Account. -The Defendant has no knowledge of this debt.

12. You are not aware of any person other than yourself, or those given permission by you, who incurred charges on the Account. -The Defendant has no knowledge of this debt.

13. You defaulted in making payments to the Issuer for charges incurred on the Account. -Deny, the Defendant has no knowledge of this debt.

14. The balance on the Account on the date the Issuer charged off the Account was $$$$. -The Defendant has no knowledge of this debt.

15. The current balance on the Account is $$$$. -The Defendant has no knowledge of this debt.

16. The Cardholder Agreement attached as Exhibit B is the agreement governing the transaction between yourself and the Issuer/Plaintiff. -The Defendant has no knowledge of this debt.

17. You received a Demand Letter from Plaintiff which stated: "unless you dispute this debt, or any portion of it, within 30 days after you receive this notice, we will assume that it is valid." A copy of the Demand Letter is attached as Exhibit C. -The Defendant has no knowledge of this debt.

Share this post


Link to post
Share on other sites
I don't believe that answer will work. Everyone knows that all you have to do is request copies of statements from your bank.

That is true, but they asked him to produce them, not the bank. He is under no obligation to go out and do this kind of work on behalf of the plaintiff. Don't have them? Can't produce them. Their request is a bit ridiculous, though, he could object on the grounds that it is styled as a compounded request which would more properly be framed as a request for documents. Also, receipt or use of the credit card (their words) cannot possibly be established by bank statements. Payments, maybe, but they never specified payments in the request.

I see your point, but here's another point:

receipt or use of the credit card (their words) cannot possibly be established by bank statements.

Actually, use of the cc COULD be established by bank statements. Why would your bank statements show payments to a cc company if you didn't have an account on which you made charges?

I'm not trying to be difficult. The above is a question that could be asked by the judge.

Could his answer include something along the lines of:

Plaintiff's request seeks information that is irrelevant due to the fact that Plaintiff has not established ownership of the alleged account.

Share this post


Link to post
Share on other sites
I am sorry everyone, but I just ran across another Interrogatory that I need help with:

"For each allegation to which you have denied, provide the factual and legal basis for the denial and provide an explanation of all evidence the defendant will rely upon to support their position."

This sounds like bull-malarky to me. I denied everything - they are below. Do I need to answer this? If so, how do I answer it?

--AND---

Do I need to answer each one with a legal basis for the denial? If so, suggestions please.

---AND---

Do I need to need to explain what evidence I will rely on to support my position? If so, help/suggestions/strategies... help!

All of the "Requests to Admit" and my answer:

1. You received the Credit Card. -Deny

2. You activated the Credit Card. -Deny

3. The Credit Card was issued on the Account. -Deny

4. You used the Credit Card. -Deny

5. You personally opened the Credit Card in your name. -Deny

6. You received the Cardholder Agreement regarding the Credit Card Account.

-Deny

7. You made one or more payments on the Account after using the Credit Card. -Deny

8. You personally used the Credit Card to make purchases and/or receive cash advances. -Deny

9. You received bills on a monthly basis from the Issuer which detailed all charges on your Account. A portion of the statements are attached as Exhibit A. -Deny

10. Plaintiff is the current owner of the debt owed on the Account. -Deny

11. Plaintiff is the correct entity entitled to receive payment on the Account. -The Defendant has no knowledge of this debt.

12. You are not aware of any person other than yourself, or those given permission by you, who incurred charges on the Account. -The Defendant has no knowledge of this debt.

13. You defaulted in making payments to the Issuer for charges incurred on the Account. -Deny, the Defendant has no knowledge of this debt.

14. The balance on the Account on the date the Issuer charged off the Account was $$$$. -The Defendant has no knowledge of this debt.

15. The current balance on the Account is $$$$. -The Defendant has no knowledge of this debt.

16. The Cardholder Agreement attached as Exhibit B is the agreement governing the transaction between yourself and the Issuer/Plaintiff. -The Defendant has no knowledge of this debt.

17. You received a Demand Letter from Plaintiff which stated: "unless you dispute this debt, or any portion of it, within 30 days after you receive this notice, we will assume that it is valid." A copy of the Demand Letter is attached as Exhibit C. -The Defendant has no knowledge of this debt.

Can I just lump this all together for the Interrogatory in this way:

Interrogatory XX is objected by the Defendant on the grounds 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. The Defendant denies all knowledge of the alleged debt. The Plaintiff should have records or documents of its own and the Defendant will ask the Plaintiff to provide this proof of such an account stated during his discovery. And the Defendant has listed this as an Affirmative Defense in his Answer. The Defendant leaves the Plaintiff to its proof.

Without waiving his objection, the Defendant upon completion of discovery with the Plaintiff, will most definitely have defenses in this action. The Defendant reserves the right to update this answer to this interrogatory at a later time.

Share this post


Link to post
Share on other sites

Bank statements may show payments to a processing center, like Citi's in Ohio, but they do not include enough information to establish who received the payment unless they have copies of cancelled checks on the back made out to that creditor. Even then, the account number would have to be identified and it never is, the processing center has a payment slip to work from when they post, but the bank statement doesn't reflect the actual account. You could have five cards from the same issuer and they would never be able to prove conclusively which one you paid on unless they matched certain amounts to statement bills. Most people round off. I still think the request is way out of line. They'll never pursue this.

Share this post


Link to post
Share on other sites

Thanks LegalEagle and BV, I appreciate the help.

I have to mail this off soon.

Any suggestions for the Interrogatory asking me to provide my legal basis and explanation of all evidence?

Share this post


Link to post
Share on other sites

Oh man, I am so glad this board is here. I totally misinterpreted what they were asking for -- "For each allegation of the Plaintiff's Complaint to which you have denied, provide the complete factual and legal basis for the denial and provide and explanation of all evidence Defendant will rely upon to support their position."

I thought they meant when they said, "to which you have denied" they were talking about this document, the discovery document; Duh! They meant the original complaint.

In the original complaint, I denied each allegation. So, do I now have to provide legal basis for each of the items in the original complaint? (see below)

If so, help please.

JURISDICTIONAL ALLEGATIONS

1. Plaintiff is the assignee of Defendant's account(s) from Ch@se. The account(s) was/were assigned from Ch@se to Global Acceptance CC, to Capital Alliance Financial, LLC, the Plaintiff.

2. Upon information and belief, Defendant me, resides at at my house

3. The amount in controversy, exclusive of interest and costs, is less than $25,000.00.

PAGE 2

GENERAL ALLEGATIONS

4. On April x, 2004, Defendant(s) opened a charge account with original creditor to provide credit on merchandise purchased. A credit card agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiffs knowledge, is in Defendant's possession.

5. Defendant(s) accepted the terms of the Agreement by use of the credit card.

6. Defendant(s) have failed to make payments as agreed upon and the account is in default.

7. There is now due a balance of $8K, plus pre-suit interest at the rate of 13 percent per annum on account number xxxxxxxx from 10/2009 to 2011 in the amount of $2k, resulting in a total due and owing of $10k as is stated in Plaintiff's Account Statement, attached as Exhibit A and an Affidavit, attached as Exhibit B.

8. Despite repeated demands, Defendant(s) have failed to pay the entire amount due and the account is in default.

9. To avoid substantial injustice, Defendant(s) should be required to repay Plaintiff the sum due.

COUNT I

BREACH OF CONTRACT

10. Plaintiff restates and re-alleges paragraphs 1 through 9 herein.

11. Defendant(s) are in breach of contract by failing to pay for charges incurred as agreed and there remains an unpaid balance of $10K

COUNT II

ACCOUNT STATED

12. Plaintiff restates and re-alleges paragraphs 1 through 11 herein.

13. Defendant(s) have failed to object to the accuracy of the monthly billings which; received and which are in Defendant's possession.

14. The account has become stated between the parties.

PAGE 3

COUNT III

UNJUST ENRICHMENT

15. Plaintiff restates and re-alleges paragraphs 1 through 14 herein.

16. Defendant(s) received, accepted and benefitted from the use of the original creditor account and Plaintiff has not been fully paid the reasonable and agreed upon value of said usage of the account.

17. Defendant(s) have been unjustly enriched to the detriment of the Plaintiff and are therefore indebted to Plaintiff in the amount stated herein.

Share this post


Link to post
Share on other sites

In your answer, when you denied the allegations, did you give reasons for the denials?

Share this post


Link to post
Share on other sites

I did not. I mostly answered:

xx. Defendant objects to and denies the allegations contained in Paragraph xx of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

Share this post


Link to post
Share on other sites

Hi Everyone,

Need help answering this, HELP?

What do I do? Do I file my own motion to dismiss? Discovery is not done yet. Do I answer it saying we are still in Discovery? Do I file my one motions to strike evidence?

Help please....

Here is what I received:

STATE OF MICHIGAN

IN THE xxND DISTRICT COURT-2ND DIV. FOR THE COUNTY OF

CAF, LLC, Plaintiff

V

Defendant(s).

Attorneys for Plaintiff

MOTION FOR SUMMARY DISPOSITION

Now Comes Plaintiff, by and through its counsel, X, P.C., and moves the Court for Summary Disposition and states the following in support of its Motion for Summary Disposition:

1. This Motion is brought under MCR 2.116 © (9) and/or (10).

2. Defendant has failed to state a valid defense to the claims asserted against her and has failed to assert facts giving rise to an issue of material fact for trial.

3. The Complaint is based upon an Affidavit of Account Stated, which was attached to Plaintiff's Complaint and which is incorporated herein by reference. (MCL 600.2145)

4. Defendant failed to include a Counter-Affidavit in her answer to the Complaint.

5. Attached as Exhibit A is the Chain of Title to verify Plaintiffs ownership of the Defendant's account at issue.

6. Attached as Exhibit B are copies of detailed account statements that were sent to the Defendant. These statements indicate payments, purchases, interest and fees that accrued on the account and the statements are attached to further demonstrate Defendant's knowledge of the account, its terms and charge-off balance as indicated on the final statement.

7. Finally, attached as Exhibit C is the applicable cardholder agreement providing numerous terms and conditions on the account.

WHEREFORE Plaintiff requests this Court grant Summary Disposition in favor of the Plaintiff and against Defendant, and further requests that judgment be entered in favor of Plaintiff as set forth in its Complaint.

Respectfully Submitted,

x Attorneys for Plaintiff

STATE OF MICHIGAN

IN THE xxND DISTRICT COURT-2ND DIV. FOR THE COUNTY OF

CAF, LLC, Plaintiff

V

Defendant(s).

Attorneys for Plaintiff

BRIEF IN SUPPORT OF MOTION FOR SUMMARY DISPOSITION

Introduction

This Motion involves a cause of action filed by AF, LLC against xx ("Defendant") in the amount of $XX, plus interest and costs incurred since the date of the filing of the Complaint.

Argument

This is a debt collection case. Plaintiff attached to its Complaint, as Exhibit A, an affidavit stating the amount owed by the Defendant and attached copies of the account. This was then served on the Defendant together with the Complaint. Defendant did not attach an affidavit denying the amount owed to the Answer. Therefore, Plaintiffs affidavit is prima facia evidence of the indebtedness and Defendant has not presented valid defenses to the allegations of indebtedness. *1

*1 Michigan Compiled Laws 600.2145 states in relevant part: In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause 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, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant, with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same.

Attached as Exhibit B are copies of detailed account statements that were sent to the Defendant. These statements indicate payments, purchases, interest and fees that accrued on Defendant's account. Plaintiff has attached these statements to demonstrate Defendant's knowledge of the account at issue, its terms and the remaining balance.

As a result of the foregoing, Plaintiff is entitled to Summary Disposition on all Counts of its Complaint based on MCR 2.116©(9) and (10) and entry of Judgment in its favor, to include attorney fees, costs, and such other relief this Court deems appropriate.

Conclusion

For the reasons set forth above, this Court should grant Plaintiffs Motion for Summary Disposition and enter Judgment in favor of the Plaintiff.

Respectfully Submitted,

XX Attorneys for Plaintiff

Share this post


Link to post
Share on other sites

So someone brought me out of retirement....::SIGH::

I really really tend to be obsessive over these. I had to stop reading the board for awhile. I get too wrapped up in it EVERY darn time

So...WITHOUT giving you any specific legal advice, here is my opinion as an unedumuhicated outsider.

First let me say I've only skimmed your thread..but it looks like this case is following the standard cookie cutter flow. First serve you a b.s. affidavit, with complaint, then produce some "statements", then serve Discovery.

They fully expect you to:

1. Give up and admit to everything they claim

2. Settle and pay a large percentage

or

3. Eagerly hand them all the documentation they need to prove their case.

When you won't do that the next step is almost ALWAYS a Motion for summary disposition. It's scary but I can assure you it's the norm. They are doing everything they can to shut you down BEFORE they have to go to trial. Most likely because if you play your cards right, they can't prove $hit with any REAL authenticated and admissible evidence at trial.

Obviously you the dire situation right now is the Motion for Summary Disposition. That's what you need to focus on right now. You have a specific way you need to reply and a specific time you need to do it in. The first step is looking up in the rules of procedure how much time you have.

Here's how I see things:

The whole basis for their MSD is they are claiming:

1. You failed to state a valid defense to the complaint. (MCR 2.116©(9))

and

2. Except to the amount of damages, there really is no real genuine issue of material fact. MCR 2.116 ©(10)

Basically you need to prove two things:

1. That you DID state a valid defense. If you plead a real affirmative Defense in your Answer you could simply point that out.

2. That there is a genuine issue of material fact. In other words that there are more facts in dispute other than the amount you owe.

Your main objective is to pick apart the 2 reasons they are claiming the judge should just hand them the case.

Here's what I did and what I would do if I were you now.

1. Look up and review the MCR 2.116 section. Know what you need to do and how long you have to do it.

2. Look up Motions for Summary Disposition and responses to them in MI appellate courts. It takes a day or two to find and read them..but its SO valuable.

3. Find out what MI courts consider a valid defense. Generally if you can prove you plead an affirmative defense that is valid and that you can support with argument, you will be ok. If you can prove one valid defense, prove 2, 3 or 4 if you pled them. If you didn't plead any..I believe you can request to ammend your answer...but don't quote me on that.

4. Research and find out what a "Genuine issue of material fact is". Then look at past MI cases and see what MI courts consider a genuine issue of material fact. You'd be surprised what little issue can keep you alive. Of course the more issues of material fact you can present the better. Does the plaintiff really own the debt and have standing to sue? Have you contested the debt? Have you ever requested validation of debt etc etc. Have you brought into question the validity and accuracy of their "statements"? Have you questioned the authority/existence of their affiant? You get the picture.

5. Research MSD's involving the specific rules MCR 2.116 © (9) and (10). This basically tells you EXACTLY what you need to do.

6. Remember this step is 90% intimidation. If you eff it up, it's a win for them. If they scare you off...it's a win. They have little to lose except a $20.00 filing fee. Jamming your information into a word processor template is something their assistant does in 5 minutes. They aren't going to spend any more time on it. YOU will have to be committed to spending hours of research, but once you start seeing the pattern in other cases it can be done.

Edited by SingleDadJames

Share this post


Link to post
Share on other sites

Also, if it were me I would look into and read MCL 600.2145

Michigan Legislature - Section 600.2145

I'd make sure I realized their case is based on the fragile little glass house that is account stated. I would prepare myself NOW to blow that argument out of the water if we got to trial.

I'd definitely spend some time researching what conditions are necessary for the plaintiff to claim an account stated exists. There is plenty of info on this out there if you are committed to finding it.

I'd also take a look at the affidavit they submitted with their complaint. Under the sufficiency requirements of MCL 600.2145 for an account stated claim I would be very curious to know whether their affidavit of debt was dated 10 days or less BEFORE the complaint was filed.

I have not had time to read your thread in depth, but I do know these affidavits are almost always notarized and signed MONTHS before the complaint is filed.

I believe when I was skimming the thread that I caught something about them saying you FAILED to file the counter affidavit/affidavit of denial to deny their affidavit as required by MCL 600.2145. If that's true it was a mistake on your part. It's one many in pro pers make.

If I failed to file the counter affidavit but noticed their affidavit was dated more than 10 days prior to filing of the original complaint I might smile a little. One has to wonder whether someone would be required to file an affidavit to deny an affidavit that was insufficient as a matter of law to begin with.

In other words if they sent me an affidavit dated months before the filing of the complaint, it doesn't even meet the requirements of MCL section 600.2145 to begin with. Therefore why would I even need to respond to it with an affidavit in denial? They never created the requirement for me to do it to begin with.

Furthermore they can't really rely on that to prove account stated under MCL 600.2145. They are then left to prove account stated in other ways like showing you used the card, made payments, failed to object to statements received etc etc.

Realize MCL 600.2145 is a clever little shortcut for courts and junk debt buying scum. The law is no doubt meant to be a beneficial way to help clear court dockets and keep things moving quickly. It lets those who don't have a leg to stand on get booted quickly with a Motion for Summary Disposition. It's also a tool that is easily abused by junk debt buyers and scumbag attorneys who know 90% of the population doesn't understand any of this!

Just sayin....8]

Edited by SingleDadJames

Share this post


Link to post
Share on other sites

....... It's a Motion for Summary Judgement.

You must create a triable issue of fact.

Go line by line and rebutt their arguments.

Example .....

Allegation

4. Defendant failed to include a Counter-Affidavit in answer to the Complaint.

Answer

Defendant did file a counter affidavit denying the debt (if you did).

In addition, Plaintiffs affidavit of Debt is untimely to create prima facie evidence.

In Support of its Complaint, Plaintiff relies on an Affidavit from Plaintiff’s manager and custodian of records that was dated on (date of affidavit). Plaintiff’s suit was filed on (date suit was filed).

MCL 600.2145 states, in relevant part, that“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.”

Plaintiff’s reliance upon MCL 600.2145 is misguided as the plain language of MCL 600.2145 prohibits the Court from assigning prima facie evidentiary weight to an untimely affidavit.

Also, please look into the suggestions by SDJ ........

Edited by Savoir
Edited to say ...... Nice to see you again SDJ !!

Share this post


Link to post
Share on other sites
....... It's a Motion for Summary Judgement.

You must create a triable issue of fact.

Go line by line and rebutt their arguments.

Example .....

Allegation

4. Defendant failed to include a Counter-Affidavit in answer to the Complaint.

Answer

Defendant did file a counter affidavit denying the debt (if you did).

In addition, Plaintiffs affidavit of Debt is untimely to create prima facie evidence.

In Support of its Complaint, Plaintiff relies on an Affidavit from Plaintiff’s manager and custodian of records that was dated on (date of affidavit). Plaintiff’s suit was filed on (date suit was filed).

MCL 600.2145 states, in relevant part, that“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.”

Plaintiff’s reliance upon MCL 600.2145 is misguided as the plain language of MCL 600.2145 prohibits the Court from assigning prima facie evidentiary weight to an untimely affidavit.

Also, please look into the suggestions by SDJ ........

Yeah I missed that. It's not a Motion to Dismiss. It's sort of the same thing but they are saying they want the judge to rule in their favor right now, without even going to trial. Basically they are saying there is no reason for you to go to trial. It's your job to show the judge why you should have a trial.

Unfortunately none of us can write it for you. :cry: You can learn so much by reading a bunch of responses in opposition to motions for summary disposition!

You NEED to oppose this by filing your response in opposition, doing it in the correct format and in the time allowed. This is where they'll definitely resort to trying to beat you on a technicality. Be sure to read the rules of civil procedure about how you need to respond and what you need to file!

Share this post


Link to post
Share on other sites

....... is that, in Michigan at least, you should include a Brief in Support of your Opposition To Summary Disposition.

You may already know this but I just thought I'd point it out in case you didn't. The Brief is where you 'justify' your argument with case law that backs up your Opposition To SD.

Share this post


Link to post
Share on other sites

This is daunting...

I don't even know where to begin....

Well, actually, it looks likt it's best to start with MCR 2.116. Yikes.

And I did plead affirmative defenses in my answer to the summons -- so you are saying they're just dismissing them? Do I restate them in my answer? Do I need to add more to them? Do I or can I add other defenses? Did I miss any?

This is what I listed:

II. AFFIRMATIVE DEFENSES

Defendants other defenses are:

1. Plaintiff Lacks Standing.

2. Plaintiff violated MCR 2.105, MCR 2.104(A)(3), Alternate Service failed to specify date and time of service and the process server's official capacity.

1. The Plaintiff failed to name the real party in interest.

2. The Plaintiff failed to state a claim upon which relief can be granted.

3. Defendant was not notified of any assignment of the debt that is the subject of the Complaint.

4. Defendant does not consent to or ratify any assignment of the debt that is the subject of the Complaint, or any portion of it.

5. Plaintiff’s Complaint is time-barred Pursuant to MCL Section 600.5807.

6. Plaintiff’s claims are barred by the doctrine of laches Pursuant to MCL Section 600.5815.

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

8. Plaintiff has failed to name the Real Party in Interest.

9. Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff's Complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

10. Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

11. 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.

12. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff.

13. Plaintiff's damages are limited to real or actual damages of actual cost paid or exchanged to alleged Original Creditor for the purported debt, for which Plaintiff failed to reference in their Complaint.

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

Share this post


Link to post
Share on other sites

Hi SDJ!!! Welcome back! You've been missed. :)

Share this post


Link to post
Share on other sites

MIFighter,

You included way too many affirmative defenses.

1. The JDB is the real party in interest because they claim to own the debt and are suing for themselves. They're not suing for another party.

3. Does MI law require they notify you of an assignment? If not, this is not a defense.

4. This doesn't apply. You don't have the option of consenting to or ratifying an assignment. The OC was allowed to sell the debt, and the JDB was allowed to purchase it. We can't tell the OC not to sell the debt because we don't agree to it.

6. I doubt this applies to your case. What did they do to cause an unreasonable delay?

7. In credit card cases, the assignee steps into the shoes of the OC. Therefore, the assignee is allowed to claim you had an agreement with them. It doesn't make it true, because they haven't proven ownership, but technically, they have privity.

10. The Assignor doesn't need knowledge of the action because the Assignor sold the debt and no longer has anything to do with it.

12. The fact that the OC accepted payment from the JDB doesn't work here. The OC isn't suing. The JDB is the one who wants to be paid.

13. Does MI have a law to back up this defense?

The best defenses against a JDB are the SOL and lack of standing. If the debt is within the SOL, you concentrate on their lack of proof of ownership and insufficient evidence.

Edited by BV80

Share this post


Link to post
Share on other sites

Thanks BV.

So, it looks like I'm not on the right track.

What should I be pleading? What should I be focusing on?

Thanks.

Share this post


Link to post
Share on other sites

Okay… help me out here… what a mess!

Below is MCR 2.116. Plaintiff filed a Motion for Summary Disposition using paragraph C 9 & 10:

(9) The opposing party has failed to state a valid defense to the claim asserted against him or her.

(10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

So, they are saying I failed to state a valid defense to their claim -- but I did give a list of defenses when I filed my answer to the original complaint.

2.116, paragraph (E) Consolidation; Successive Motions. -- STATES

(1) A party may combine in a single motion as many defenses or objections as the party has based on any of the grounds enumerated in this rule.

(2) No defense or objection is waived by being joined with one or more other defenses or objections.

I listed 14 defenses. Do they not have to specify all 14 defenses and give reasons why they should be dismissed?

Under Paragraph (G) Affidavits; Hearing.

(6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule ©(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.

Is this where I bring up any discrepancies with their supposed evidence?

The Chain of Title

Falsified Account Statements

and the Card Holder Agreement

(I have issues with all of them)

Under Paragraph (H) Affidavits Unavailable.

(1) A party may show by affidavit that the facts necessary to support the party's position cannot be presented because the facts are known only to persons whose affidavits the party cannot procure. The affidavit must

(a) name these persons and state why their testimony cannot be procured, and

(B) state the nature of the probable testimony of these persons and the reason for the party's belief that these persons would testify to those facts.

(2) When this kind of affidavit is filed, the court may enter an appropriate order, including an order

(a) denying the motion, or

(B) allowing additional time to permit the affidavit to be supported by further affidavits, or by depositions, answers to interrogatories, or other discovery.

Do I use this paragraph to resubmit my Counter-Affidavit and also bring up the fact that we are still in Discovery and that the Plaintiff has not produced a signed Contract?

Am I on the right track? Is there any Michigan case law that I should know about that would help me? What about MCL 600.2145? How do I shoot holes in that piece of you know what?

THANKS GUYS!!!

Share this post


Link to post
Share on other sites

Affirmative defenses are yours to prove. They claim you haven't listed VALID defenses. You have to show your defenses are valid. Is the debt outside the SOL? If not, you can't use it.

Regarding a signed contract, that's not necessary in a credit card case because there usually isn't one.

If they've filed for summary judgment, you have to file an Opposition to Plaintiff's Motion for Summary Judgment. Summary judgment means there's no genuine issue of material fact to argue. Therefore, the court should award judgment to whoever filed the MSJ.

You have to show there ARE genuine issues of material fact that should prevent a ruling on summary judgment right now.

I'd focus on lack of standing. If they can't prove ownership of the account, they can't prove they have standing (the right) to sue you.

You also need to argue their causes of action.

Read SingleDadJames's posts. He defeated a JDB. Also check out the following thread. It has a sample MI opposition with case law. The case law should support your arguments against account stated, breach of contract, etc.

http://www.creditinfocenter.com/forums/state-laws-case-law-sample-forms/313603-brief-opposition-summary-judgement-case-law.html#post1164307

Another suggestion: If you don't understand something, research it and get answers. Don't include something you don't understand. If the judge were to ask you a question about something you write in your Opposition, you want to be able to answer. Otherwise, he'll figure you just copied and pasted a document.

BTW, did they include an affidavit? If so, does it mention their evidence?

Share this post


Link to post
Share on other sites
I'd also take a look at the affidavit they submitted with their complaint. Under the sufficiency requirements of MCL 600.2145 for an account stated claim I would be very curious to know whether their affidavit of debt was dated 10 days or less BEFORE the complaint was filed.

Their Account Statement and Sworn Affidavit are signed 8/31 and the suit was filed on 9/7. It was easy for them to do that as the Account Statement is just a sheet of paper a 5th Grader could do in Word, and the person Swearing Under Penalties of Perjury was the former office manager of the Law Firm and has been promoted Manager of the JDB. What a surprise.

I believe when I was skimming the thread that I caught something about them saying you FAILED to file the counter affidavit/affidavit of denial to deny their affidavit as required by MCL 600.2145. If that's true it was a mistake on your part. It's one many in pro pers make.

I did file a counter affidavit, but I filed it with my answers to their discovery. It was not within 10 days. I did however file the original with the court house and I did have a certificate of service filed.

I know that hurts me a bit, but I did at least file it when I found out I needed one.

Edited by MIFighter
Opps - should be 8/31

Share this post


Link to post
Share on other sites
Their Account Statement and Sworn Affidavit are signed 8/31 and the suit was filed on 9/7. It was easy for them to do that as the Account Statement is just a sheet of paper a 5th Grader could do in Word, and the person Swearing Under Penalties of Perjury was the former office manager of the Law Firm and has been promoted Manager of the JDB. What a surprise.

Looks like they've been burned by people on the whole 10 days deal to actually start making up,I mean obtaining, timely sworn affidavits of debt now. :roll:

Regarding who their affiant is...it doesn't really matter for the purposes of MCL 600.2145. You can certainly attack their affiant at trial etc, but the statute doesn't really say who the affidavit has to be from. I know it sucks. They can basically use their own in house affidavit factories to get a b.s. affidavit on the books.

I did file a counter affidavit, but I filed it with my answers to their discovery. It was not within 10 days. I did however file the original with the court house and I did have a certificate of service filed.

I know that hurts me a bit, but I did at least file it when I found out I needed one.

Depending on what your counter affidavit said it probably helps. I would certainly be using that to point out I'm contesting specifics and that there are , indeed, issues of material fact that need the Court's attention in trial.

Share this post


Link to post
Share on other sites

Another suggestion: If you don't understand something, research it and get answers. Don't include something you don't understand. If the judge were to ask you a question about something you write in your Opposition, you want to be able to answer. Otherwise, he'll figure you just copied and pasted a document.

Great advice! Beating a JDB on your own CAN be done, but there is no easy cookie cutter approach. Unfortunately there is no cut and paste template that will work for everyone.

Even if I was allowed by law to tell you exactly what to write and what to say, it still won't help if YOU don't understand it. For instance, when you file your opposition to their Motion for Summary Disposition, you'll need to have a legal brief supporting it. You'll also have to be prepared to orally argue your brief with the plaintiff in front of the judge. (SOMETIMES you have the option of waiving an oral hearing and just have the judge rule based on the paperwork without oral argument...but I believe the opposing attorney has to agree to it). I'm not trying to scare you, just trying to point out the fact that you need to know your material and anything you've filed inside and out. If YOU don't understand it the Court will know you've copied material off the internet or someone else is helping you.

Regarding the legal brief; It's all more scary than it sounds. It's basically just a summary outlining caselaw, cases, laws and court rules that supports everything you are saying in your opposition to their motion. If you are diligently researching and understanding the material, its basically a summary of all the great research you've found. It's really nothing more than a handy little outline for you and the court to refer to.

I know it's all overwhelming, but it can be done. Unfortunately it is NOT easy and most people honestly don't have the time or level of commitment needed to do it. You have to be prepared to spend a great, great deal of time researching. If you are determined, have the luxury of being able to spend DOZENS of hours researching, asking questions here, and preparing yourself then you may just come out on top.

Share this post


Link to post
Share on other sites

So, they are saying I failed to state a valid defense to their claim -- but I did give a list of defenses when I filed my answer to the original complaint.

Well they are basically claiming NONE Of your defenses are valid. That doesn't mean it's true. The name of the game is for them to just claim none of your defenses are valid. Don't be fooled into thinking they've spent more than 10 or 15 minutes on this. THEY have the luxury of your inexperience. What they say doesn't even need to be true at this point. They are fully aware that the odds of you figuring out exactly how you need to respond and doing it in time aren't in your favor.

With this being a junk debt buyer I'm sure you can a way to support at least ONE of those affirmative defenses. Remember you just need to find ONE valid defense that you can support with what you have up to this point. Lack of standing is probably a great start. If you can find two or three more valid defenses that you plead in your answer great! The more the better but you need to find at least ONE or the judge will grant their MSD.

I listed 14 defenses. Do they not have to specify all 14 defenses and give reasons why they should be dismissed?

Nope. All they need to do is say they are filing for a motion for summary disposition under MCR 2.116 C (9) because you didn't plead a valid defense in your answer. They don't need to pick apart your defenses one by one because they are basically saying you don't have any valid defenses. They then leave it to you to show the Court how your Defenses are valid. If you have NO valid defense then there's no reason to have a trial and the judge should just rule in the plaintiff's favor now.

Remember this is just them trying to take a shortcut via paperwork. They don't want to have to prove things at trial with real authenticated and admissible evidence. They don't want to have to bring in witnesses...they just want to type in your name in their Word Processor templates and let you hang yourself by not responding properly. This is just one more way they can do that...that's why they almost ALWAYS file a MSD after you've responded to Discovery and it becomes apparent you aren't going to run away i fear right away.

Under Paragraph (G) Affidavits; Hearing.

(6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule ©(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.

Is this where I bring up any discrepancies with their supposed evidence?

The Chain of Title

Falsified Account Statements

and the Card Holder Agreement

(I have issues with all of them)

Now you are on to a little something here. A MSD is basically a trial on paper before the trial happens. This rule is basically saying if it isn't going to be something that is admissible evidence in trial...you can't use it here.

Under Paragraph (H) Affidavits Unavailable.

(1) A party may show by affidavit that the facts necessary to support the party's position cannot be presented because the facts are known only to persons whose affidavits the party cannot procure. The affidavit must

(a) name these persons and state why their testimony cannot be procured, and

(B) state the nature of the probable testimony of these persons and the reason for the party's belief that these persons would testify to those facts.

(2) When this kind of affidavit is filed, the court may enter an appropriate order, including an order

(a) denying the motion, or

(B) allowing additional time to permit the affidavit to be supported by further affidavits, or by depositions, answers to interrogatories, or other discovery.

Do I use this paragraph to resubmit my Counter-Affidavit and also bring up the fact that we are still in Discovery and that the Plaintiff has not produced a signed Contract?

Meh....that mumbo jumbo doesn't apply here I don't think. That jargon is basically saying if one party needs an affidavit from another party to support their case and they can't get that affidavit they can whine to the court about it. For instance, say the Plaintiff needs info from a credit card company employee but they can't get in contact with them to obtain an affidavit. They can whine to the court and say they can't get the affidavit they need, why and ask for more time etc.

Forget the whole signed contract deal unless they are claiming breach of contract in their complaint. It sounds like this is straight account stated. They don't need to produce a signed contract with your signature. For account stated all they need to do is prove you used the card, authorized use of the card, made a payment, failed to dispute statements etc. There are specific requirements MI Courts have laid out that are required to prove account stated. You need to look them up and know them.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this