juiceky

Michigan Form of Answer and Affirmative Defenses

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First of all, Thanks to all of you for great advice and support to those of us being hounded by JDB's.

I have a pending answer due to the court (for our friends Ass3t Acc3ptance) and, through the great advice on this board, I have a well crafted response.

My question is: In Michigan there is a fillable PDF for a defendant answer. I have to go to a second page to include affirmative defenses, should i use the Standard pdf Form supplied by the State for the second page or are the subsequent pages to be put on "blank sheets"?

I realize this may be splitting hairs but I am not familiar with procedure and want to be sure not to screw up my answer due in a few days.

Thanks in advance

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You are going to want to type out your answer. The header will be the name of the court, then the parties to the law suit. Case #, if one was assigned. Underneath, the names, addresses, phone # of the parties. Plaintiff on the left, Defendant on the right.

Then, type in bold lettering, underlined, centered - Defendant's Answer

Here comes Defendant, _________ Pro Se in response to the Plaintiff's complaint states as follows:

1.

2.

3.

4.

5.

6.

Make sure it is typed at least 12pt font and double spaced, when you answer each numbered allegation.

At the end, summarize and hit all of the laws of rules of procedure the Plaintiff didnt follow. The Defendant, _____ Pro Se asks this court to......etc.

Sincerely,

XXXXX

Defendant, Pro Se

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Then on a second page, bold type, centered and underlined, Affirmative Defenses

Then on a third page, you are going to want to provide a proof of service and if they supplied an affidavit with the complaint dated 10 days of the date of the summons, you are going to create a counter-affidavit, which needs to be notarized.

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Then on a second page, bold type, centered and underlined, Affirmative Defenses

Then on a third page, you are going to want to provide a proof of service and if they supplied an affidavit with the complaint dated 10 days of the date of the summons, you are going to create a counter-affidavit, which needs to be notarized.

I have attached the Answer form for MI, SHould I use this for the second page or more like :

State of MICHIGAN)

)ss.

County of OAKLND )

format?

I have the counter affadavit (Sworn Denial) and they are n the correct timeframe, just wondering if the second page needs the headings like attached, just clarifying.

Your advice and threads are fantastic, and I appreciate your help.

Edited by juiceky

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what would be great is if you could copy and paste the complaint to your thread. I have seen attorneys use the court form as their complaint. it looks much more professional typing it out yourself.

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Thanks for the advice. Copied herein is their complaint - redacted

NOW COMES the Plaintiff, ASSET ACCEPTANCE, LLC, by its attorney, and for its Complaint

against the above named Defendant(s), states to this Honorable Court as follows:

,

I, The Defendant(s) resides within this court's venue and venue is proper in this court,

2. The amount in controvesry is within the courts jurisdiction

3, The Defendant(s) had an agreement for alan CREDIT CARD, originally with FiFtH THIRD BANK,

4. The Defendant(s) has defaulted in payments on the above mentioned account, said aC'count being

shown in the Affidavit. See Exhibit "A" (Affidavit) and "B" (Statement of Account not previously

sent to Defendant)

5, ASSET ACCEPTANCE, LLC purchased the account shown in the attached Exhibits "A" and "B"

and was assigned all rights to the account in the normal Course of business.

6, ASSET ACCEPTANCE, LLC has notified the Defendant(~) ofthe above menlioned account and

theDefendant(s) has failed to pay for same,

7, There is presently due and owing over and above all legal counter-claims the sum of X which includes interest at the statutory rate, See Exhibits "A" and "B"

8. ASSET ACCEPTANCE, LLC requests Judgment for "PLUS interest, costs, statutory attorney fees, pursuant to MCL 600,2441,

I declare under penalty of contempt of court that to the best pf my knowledge, information and

belief that this is good ground to support the contents of this pleading.

Plaintiffs Affadavit of Account

I am an employee of ASSET ACCEPTANCE, LLC ("Plaintiff"), a DELAWARE LIMITED

LIABILITY COMPANY, and am competent to testifY to the facts set forth in this affidavit.

2. I am familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and

maintains its business records pertaining to this account. These records are kept in the regular

course of business and were created at or near the time of the

and belief and upon review of records in my possession, XXXXX

had an account with FIFTH THIRD BANK XXXXXXXXXXXX· 7791.

3. That after establishing said account:, Defendant(s) incurred charges and/or fees and/or interest

upon said account.

4. Defendant(s) defaulted on their payment obligations with regard to said account.

S. Upon information and belief, Plaintiffs predecessor(s)-in-interest performed all of the conditions of the contract required by said contract.

6. Thereafter, Plaintiff purchased said account for value and is now the owner of said account.

7. That as a result of Defendant(s) payment default, the Defendant(s) named herein is/are justly indebted to the Plaintiff in the amount $X together with interest at the statutory rate of 5.00%.

8. That upon information and belief, the said Defendant(s) is/are not in the military service of the United States or its allies, nor has he/she/they been at any time during the last six months.

Signed and notarized 6 days before original complaint was filed.

Please note that they had to file a motion for alternate service.. they couldnt apparently serve me the first time, so I have about 5 more days for my answer.

Defense Answer Draft (first page initally on printed Form)

NOW COMES the Defendant, xxxxxxxxxxxx, pro se, and for its Answer to the above mentioned Complaint, states to this Honorable Court as follows:

1. Allegation 1: ADMIT

2. Allegation 2: DENY. The Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation

3. Allegation 3: DENY. The Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation

4. Allegation 4: DENY. Allegation requires that Defendant admit something previously denied.

5. Allegation 5: DENY. Plaintiff has presented no evidence to support this allegation.

6. Allegation 6: DENY. Plaintiff has not contacted Defendant regarding the matter before the court prior to the date of this action.

7. Allegation 7: DENY. Allegation requires that Defendant admit something previously denied.

8. Allegation 8: DENY. Plaintiff has presented no evidence to support this allegation.

FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted and attaches EXHIBIT C "SWORN DENIAL"

Defense Page 2 (initally on fillable form - please comment)

AND AS FOR AFFIRMATIVE DEFENSES

1. Plaintiff, as defendant is informed and believes, lacks the legal standing to bring and maintain the action. Plaintiff has not presented evidence of title to aforementioned account nor has Plaintiff presented proof of assignment to the aforementioned account.

2. There is a Lack of Privity between Plaintiff and Defendant, no contract or agreement exists between the parties regarding the alleged account.

3. There is a Failure of Consideration between the Plaintiff and Defendant, no payments have been exchanged between the parties regarding the alleged account.

4. Plaintiff has not proven the amount of the alleged account is valid or accurate. Plaintiff has provided no evidence that the principal, interest and related costs are supported by true copies of statements, contracts or the like.

5. EXHIBIT B was prepared on 22 March 2012, 7 months after the alleged event specifically for litigation purposes and is, therefore, not a legitimate business record.

****note Exhibit B is their "Account Form" where they trump up the amount etc and then admit on the document " *not previously mailed to Defendant"

6. Plaintiff fails to cite applicable State Laws, there is no basis for the lawsuit.

WHEREFORE, the Defendant respectfully asks the Court for judgment:

a. DISMISSAL of the complaint herein WITH PREDJUDICE.

(there is a proof of service bar at the bottom of the pre printed forms - I trust that will suffice?)

Page 3 Sworn Denial

SWORN DENIAL

I, XXXXX, deny that the account described in the above mentioned case is my account and, if I am found responsible for the account, I,XXXXX, deny that it is still a valid account and if it is found to be a valid account, I, XXXXX, deny the amount sued for is the correct amount.

_Signed and notarized

CERTIFICATE OF SERVICE

I certify that on this date I served a copy of this answer on the plaintiffs or their attorneys

By Certified first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3).

__________________Date ___________________________________Signed

Please comment to the validity of the affirmative defenses, I have seen some commentary on these boards that some of these may sound canned and will be thrown out.

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....... if you're thinking of electing arbitration ... you might not want to admit to the fact that venue is proper.

Are you aware that any Affirmative Defenses you use are yours to prove?

Can you prove any of those defenses you claimed?

Edited by Savoir

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After reading a lot of ColtsFan's threads i realize that I need to pare down the affirmative defenses to Standing. Let them prove the rest, right? I believe there was a great thread related to Midland and a laundry list to admissions that I need to prep right away.

You guys are the best, i feel at least I can get over the first hurdle.

Thanks for the humbling note, I dont want to get into proving anything for the plaintiff.

I will keep updating my thread for info purposes.

Thanks again,

Edited by juiceky
title

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....... if you're thinking of electing arbitration ... you might not want to admit to the fact that venue is proper.

Are you aware that any Affirmative Defenses you use are yours to prove?

Can you prove any of those defenses you claimed?

BTW should I deny #1 in part, I live here but dont agree the venue is proper in this court? this would leave it open for ARB? Or flat out deny Allegation 1?

Edited by juiceky
title

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Also the affidavit is supplied by AA..not 5th/3rd...so how can AA state that the amount due and owing is correct if they do not know the history you had in your dealings with 5/3?

There was no bill of sale showing your account number on it.

Was the affidavit dated within 10 days of the summons?

Do you really think AA has a complete history to the account?

Was the terms and conditions attached to the complaint at all?

Was there an account statement from 5/3 attached to the complaint?

The correct way of denying per MRCP is The Defendant denies this allegation in its entirety.

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Need to consider leaving the affirmative defenses in then.

No info from original OC included in complaint

This is allegedly from 2007. I don't really know anything about it. And nothing was provided other than "trust me it's yours " documents from AA.

Affidavit was sent within 10 days of original filing

I don't know about allegation 1. I live here but don't know whether to save myself ARB rights? So deny based on not enough info?

Thanks.

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Need to consider leaving the affirmative defenses in then.

No info from original OC included in complaint

This is allegedly from 2007. I don't really know anything about it. And nothing was provided other than "trust me it's yours " documents from AA.

Affidavit was sent within 10 days of original filing

I don't know about allegation 1. I live here but don't know whether to save myself ARB rights? So deny based on not enough info?

Thanks.

was the affidavit dated not sent within 10 days of the summon, not the complaint?

Look at the date of the affidavit, then look at the date the summons was issued...if the affidavit is not dated within 10 days of the summons, the affidavit cannot be used as prima facie evidence to prove an account stated claim.

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The plaintiff did not properly serve the first time. The original summons was stamped received by the court on 30 Mar

The affadavit was dated 22 Mar

The revised summons and complaint (Order for Alternate Service) is dated 2 July and was mailed to me on the 17th and 24th and taped to my door on or around the 24th of July

I believe that i have 28 days to answer as it was mailed to me, but would like to mail today 8 Aug

No updated Affadavit was provided with the revised summons, i.e. the affadavit included was the orginal one dated 22 Mar.

Does this qualify as inadmissible under account stated?

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The plaintiff did not properly serve the first time. The original summons was stamped received by the court on 30 Mar

The affadavit was dated 22 Mar

The revised summons and complaint (Order for Alternate Service) is dated 2 July and was mailed to me on the 17th and 24th and taped to my door on or around the 24th of July

I believe that i have 28 days to answer as it was mailed to me, but would like to mail today 8 Aug

No updated Affadavit was provided with the revised summons, i.e. the affadavit included was the orginal one dated 22 Mar.

Does this qualify as inadmissible under account stated?

The order for alternative service is not a revised summons and complaint. It is permission from the court for service in another way because you could not be served for whatever reason. That's why the summons was taped to your door by the process server and a copy was mailed to you by the court clerk. There is no need to duplicate the information and affidavit from the original complaint because that still stands.

Well, since AA didn't provide an OC agreement with their complaint, you are free to find one that suits your needs if you want to go the ARB route.:mrgreen:

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Lets say i get into it and answered my complaint pro se. Can i employ an attorney after the fact if one will take the case?

Sorry cant send PM's yet

Edited by juiceky
added text

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After you submit your answer, the court will send you a pre-trial hearing notice in the mail. I would check with the court to see if the Plaintiff was granted permission for alternative service.

At pre-trial, it goes quick - maybe 5 minutes max. You will have to fill out a pre-trial summary that the court will send you, which summarizes your side of the story and what is needed ie time for discovery, type of trial, settlement chances. The only thing, if the attorney wants 60 or 90 days for discovery, tell the judge you only want 30 days and stick to it. They either have what they need or they do not. Do not allow them more time to either fabricate or time to stall.

The attorney for the Plaintiff will try to press you to agree to a stipulated judgement. Do not agree to it. Be ready though to tell the attorney the Rules of Civil Procedure and laws they are not following and further, tell the attorney thattheir account stated claim is crap and be prepared to argue a breach of contract, which they will not be able to prove.

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All:

Thanks for the continued great posts. I had a consumer credit attorney look at my case and he took it on contingency after about 10 minutes of review. (if you are on this forum - thanks for that)

I will continue to update throughout the process but suffice to say that after filing my answer denying everything in their allegation, and filing a sworn denial, we are in the process of counter claiming under FCDPA.

Will update this thread with generic results and info in the hopes that all who read and understand the advice in here can safely act against those JDB's who act incorrectly or illegally.

Not sure If I can send PM's but will direct you to the attorney if you are in Michigan and believe that you may have a situation worth looking at.

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Not sure If I can send PM's but will direct you to the attorney if you are in Michigan and believe that you may have a situation worth looking at.

Directions would be appreciated ... there is quite the rash of suits being filed against CIC members in Michigan.

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A quick search for "fair debt collection attorney michigan" on G oogle presents a great number of these firms dedicated to FDCPA cases

Without consulting my attorney, I would like his permission prior to posting his name (its after hours), send me a PM if you need him. the list generated by the search above, however, yields 3-4 who take cases on contingency.

I am sure within a few minutes, any attorney in this niche can tell you the chances on a given situation. Dont let anyone railroad you into settling!

*PS im not a lawyer, just trying to offer the helping hand

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drop me a PM with his name...

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