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Could use some help in Michigan


1ststephardest
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1. Who is the named plaintiff in the suit?

Dumb Bank c/o AB Serv. Corp.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Weltman,Weinberg & Reis

3. How much are you being sued for?

2500.00

4. Who is the original creditor? (if not the Plaintiff)

NA

5. How do you know you are being sued? (You were served, right?)

Served Summons and Complaint

6. How were you served? (Mail, In person, Notice on door)

Mail and on door

7. Was the service legal as required by your state?

Yes

Process Service Requirements by State - Summons Complaint

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

Couple of phone calls from Dumbbank (or someone for them) that I answered and told them to get lost, then lots of calls I didn't answer. Next letter from atty. telling me they are suing for Dumbbank expect it soon

9. What state and county do you live in?

St. Clair County, Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Can't remember, don't know if it's mine. Statement provide does not say. Only that it was charged off, the balance is zero and min. amt. due is $xxx due xxx.

11. What is the SOL on the debt? To find out:

6 yrs

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Suit served, pre-trial notice sent, they filed Mot. Summ. Disp.

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

No Didn't know that I should. Head in sand technique

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No Didn't know that I should. Head in sand technique

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I responded within time frame. Only rec'd complaint

1. Def. applied for card, acct # xxxx

2. Def. used card so is bound by agreement attached as "Ex A".

3.They are exerciseg right to accelerate payment for entire amount.

4. Amt. is $xxx, copy of statement attached "Ex. B".

5. They demanded payment, I failed to do so.

They pray for judgment.

They are law firm/debt collector trying to collect a debt for their client.

Thats it.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

CC agreement that is preety generic. Nothing saying it applies to me. One statement that says its charged off. But it does have my name on it. An affidavit that looks like its been photocopied a million times. From AB Serv. Corp. saying they handle the records and know whats going on.

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

================================================== ==

If you are inquiring about a the best way to sue someone, you need to answer the following questions (as much as possible):

1. Who are you suing?

Not sure, OC, atty., or Dumbbank/AB Serv. Corp. Are they a collection agency?

I just tried to make sure I got my objections out there so filed counter claim with answer. Harassment, lack of standing, failure to grant relief.

2. How old is the debt?

Don't know, have no info

3. If the person harrassing you about the debt is a collection agency, Is the debt being reported on your credit report?

Don't know, sorry. Credit report says charge of, by Disc. possible negative something or other

4. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) This means you wrote or called Experian, Equifax and TransUnion.

No.

5. Has the collection agency sent you a letter, called you on the phone? How did you learn about the collection?

Couple calls from Dumbbank/AB Serv., answered only a few. Then lots of phone calls I didn't answer. Lastly letter from atty.

6. What state are you in?

Michigan

7. What kind of debt is this? (credit car, auto loan, student loan)

Credit card

8. What kind of violations do you THINK the collection agency has committed? What section of the FDCPA do you think has been violated...

These are actually sections from Mich. laws. I don't know if FDCPA can be used.

I feel Disc. never sent info to dispute debt. No 5 day thing, no 30 day thing. They never sent me anything. I think the affidavit is suspect, they lied saying they have included all these statements, but they weren't there. They went right to atty. and lawsuit, letter from atty. said contact them to make arrangements or they can get judgment and take all these different steps to get their money.

There is also something in MI Laws regarding "regulated person". Isn't that their way of saying debt collector?

I know I have been pretty passive aggresive. Now I HAVE to sh*t or get off the pot so to speak. Should I continue with some sort of suit or try to settle with them?, I know this is bold but I'm not yelling. Just wanted to make sure tou saw it.

REGULATION OF COLLECTION PRACTICES (EXCERPT)

Act 70 of 1981 445.252 Prohibited acts. Sec. 2.

A regulated person shall not commit 1 or more of the following acts:

(e) Making an inaccurate, misleading, untrue, or deceptive statement or claim in a communication to collect a debt or concealing or not revealing the purpose of a communication when it is made in connection with collecting a debt.

(n) Using a harassing, oppressive, or abusive method to collect a debt, including causing a telephone to ring or engaging a person in telephone conversation repeatedly, continuously, or at unusual times or places which are known to be inconvenient to the debtor. All communications shall be made from 8 a.m. to 9 p.m. unless the debtor expressly agrees in writing to communications at another time. All telephone communications made from 9 p.m. to 8 a.m. shall be presumed to be made at an inconvenient time in the absence of facts to the contrary.

(q) Failing to implement a procedure designed to prevent a violation by an employee.

MICHIGAN CONSUMER PROTECTION ACT (EXCERPT) Act 331 of 1976

445.903 Unfair, unconscionable, or deceptive methods, acts, or practices in conduct of trade or commerce; rules; applicability of subsection (1)(hh).

Sec. 3.

(1) Unfair, unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce are unlawful and are defined as follows:

(n) Causing a probability of confusion or of misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction.

(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.

(x) Taking advantage of the consumer's inability reasonably to protect his or her interests by reason of disability, illiteracy, or inability to understand the language of an agreement presented by the other party to the transaction who knows or reasonably should know of the consumer's inability.

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Forget about the FDCPA and MCPA as defenses. They are causes of action for a counter-claim or separate lawsuit.

So far, they filed a complaint, served you with a summons, had an affidavit attached and a statement without your name on it.

Is the affidavit dated within 10 days of the summons? Is the Plaintiff the OC or a CA/JDB?

Now when you answer, you can use three separate statements:

1) Admit - Do not use, if you admit to anything, the Michigan Rules of CP state a judge can issue a judgment for admitting to anything.

2) Deny - Per MI RCP, you have to state a reason as to why you deny.

3) The Defendant is without knowledge or or information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial.

If the affidavit is dated within 10 days of the summons, then you need to file a counter-affidavit denying the claims in their affidavit.

Any evidence you have showing that this account is not yours, attach it as an exhibit. Also, print off any caselaw that backs any defenses that you will use and attach as an exhibit.

Given most judges do not like dealing with pro se defendants, make sure your pleadings follow the MI RCP and it is easy for judge to read, if he/she reads it at all.

All you want to do is protect yourself from giving them an easy time to filing a motion for summary judgment.

The longer this goes on, when they produce the evidence needed to get the relief they requested in their complaint, you want leverage to negotiate a very good settlement.

IF you get lucky and they screw up, then you want to be in a good position to get this thing dismissed.

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Forget about the FDCPA and MCPA as defenses. They are causes of action for a counter-claim or separate lawsuit.

So far, they filed a complaint, served you with a summons, had an affidavit attached and a statement without your name on it.

Is the affidavit dated within 10 days of the summons? Is the Plaintiff the OC or a CA/JDB?

Now when you answer, you can use three separate statements:

1) Admit - Do not use, if you admit to anything, the Michigan Rules of CP state a judge can issue a judgment for admitting to anything.

2) Deny - Per MI RCP, you have to state a reason as to why you deny.

3) The Defendant is without knowledge or or information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial.

If the affidavit is dated within 10 days of the summons, then you need to file a counter-affidavit denying the claims in their affidavit.

Any evidence you have showing that this account is not yours, attach it as an exhibit. Also, print off any caselaw that backs any defenses that you will use and attach as an exhibit.

Given most judges do not like dealing with pro se defendants, make sure your pleadings follow the MI RCP and it is easy for judge to read, if he/she reads it at all.

All you want to do is protect yourself from giving them an easy time to filing a motion for summary judgment.

The longer this goes on, when they produce the evidence needed to get the relief they requested in their complaint, you want leverage to negotiate a very good settlement.

IF you get lucky and they screw up, then you want to be in a good position to get this thing dismissed.

I denied all counts. Reasons more or less they had not provided any info to corraborate their claims. I attacked validity of their evidence and statements countering with genuine issue of material facts and failure to state a claim upon which relief can be granted. Threw in harassment for good measure.

Affidavit signed almost a year before they filed in court.

I did not file counter affidavit witnin 10 days. I was going to file motion to strike.

They say its OC but it also names some servicing corp.

I must be a rube because I don't even know how to start looking for Michigan case law.

How exactly can they screw up?

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A servicing company can be an affiliate of the OC that handles their accounting. Check the OC's entry on your credit report. If they still own the account, it will merely show the account has been charged off. If they've sold it, the entry will state sold or transferred to another lender.

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