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What is the best timing for filing motion to strike in Michigan


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Hello,

I read MI rules of CP and, as I understood, I have to strike any evidence or exhibits within 21 day from summons, because if I don't they will be entered as valid evidence...

OK, so in my answer to compaint of Breach of Contract:

  • I denied
  • Stated affirmative defenses w/right to amend and requested Dismissal with Prejudice
  • Requested signed contract and documents to prove debt and assignment

Midland sent back tons of CC statments

A generic Bill of sale

Generic Closing Statment

A statment saying they purchased account from OC and account is being serviced by MCM

Notice of new ownership and pre-legal review

A paper with "Important Disclosure Information"

A note saying that they requested the signed contract from OC and will send it to me when it becomes available.

So, I motioned to strike their affidavit, bill of sale, and closing statment.

I did NOT mention the CC statements and other documents in the motion to strike.

I still have a few days before the expiration of the 21 days allowed by Rules of CP...Do I have to file another motion to strike remaining documents?

Any and all input is appreciated.

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that is what you can do.

but you should know that most of the times the court denies such motions. they like to get the largest amount of evidence.

so the motion to strike for the exhibits versus the whole complaint when you have concentrated in the first motion on the complaint the second for the exhibits may be actually well taken.

you seem to be on the right track.

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Thanks for you reply Seadragon.

How would I argue against the following in order to strike them? Thanks.

  • A statment saying they purchased account from OC and account is being serviced by MCM
  • Notice of new ownership and pre-legal review
  • A paper with "Important Disclosure Information"

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Hi,

I'm answering partly to bump this, in hopes a Michigan knowledgeable poster

will respond to assist you.

Also, here's a couple of links that may be helpful:

The first, just gives you the basics of the paperwork you got from

the agency suing you.

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

The second, talks about striking evidence:

Motion to Strike Affidavit of Debt - Learn How to Write One

You also may attempt a search on the board for "michigan motion to strike" to see if you find any information from those that have done this in the past.

How would I argue against the following in order to strike them? Thanks.

A statment saying they purchased account from OC and account is being serviced by MCM

Notice of new ownership and pre-legal review

A paper with "Important Disclosure Information"

I could be wrong but the "pre-legal" review and "disclosure information" aren't items you need to be concerned with striking. But check that out w/someone in your area, or in accordance w/your court rules.

The thing I would be concerned with (and attack to strike) is the statement saying they purchased the account from the OC. Check out the link I provided, as I think it mentions invalidating/striking things like that.

Again, I'm not familiar w/your state but I believe they need more than just a "statement" or letter saying they purchased the account. They need a bill of sale, or something showing they indeed purchased the account. A bill of sale (w/your name, account number and amount of debt) can stand up in court. A generic letter stating they purchased it, usually does not.

But of course, part of your job in defending yourself is that you have to challenge what they are attempting to admit against you (or say you want it stricken and why) or else it may be admitted as evidence against you. ;)

A statement saying they will provide the bill of sale it when (or if) they get it :rolleyes:, probably will not cut it in accordance with court rules. But again, check your evidence rules to be certain.

Good luck--hope this helps!:)++

Edited by tigger
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Also, there should be something you can read that shares "evidence rules" for Michigan court. You need to familiarize yourself with that, too.

Copies of credit card statements are used a lot by these junk debt buyers.

They are primarily used to frighten you into admitting that the debt is yours, or that you made those charges, etc. They realize that most defendants that represent themselves do not know the rules of court, and they count on you not knowing what IS (or is not) legally admissable in court, as far as evidence is concerned.

Without someone from the original creditor to authenticate those statements, they could be ruled as "hearsay", in other words--inadmissable in court. Which I believe the second link I provided speaks of, and how to get what was provided by Midland stricken in your case.

Again, I can not advise you definitively as I'm not in your jurisdiction and unfamiliar with the rules (and what is or is not acceptable as evidence in your courts). Try a search to see if you can find others here who've previously had evidence stricken in Michigan...

I had a quick moment, and did a search on "Midland Michigan strike statements" and found the following:

http://www.creditinfocenter.com/forums/there-lawyer-house/309465-midland-funding-question.html#post1119416

Sometimes you have to try a few different search word combinations, but doing so should provide some helpful results.

Hope this helps and good luck!

:mrgreen:

Edited by tigger
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Also, there should be something you can read that shares "evidence rules" for Michigan court. You need to familiarize yourself with that, too.

Michigan Rules of Evidence

Be careful that you don't motion to strike too early. You'll have to have some foundation for your motion. Discovery is the tried and true method.

Ask for employment records for the affiant (among other things) and when you recieve your answer(s) and find that the affiant has no personal knowledge of the OC's record keeping methods .... you'll have a basis for your motion.

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Any thing that is written on a piece of paper that can not be backed up by whom ever wrote the doc is hearsay if that person is not in court, you can not cross examine a piece of paper. Any statements on that paper cannot be proven valid if the person whom created the doc is not present to question.

Bill of Sale does NOT set forth the full terms of the alleged debt purchase, nor does it show what rights have been transferred.

Edited by BTO429
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