Received Summons in MI this morning...

[tp63412]

Found this forum as I was googling what to do... this is my first summons, and it is for a debt that I know I owe. The amount is iffy, and the "account statement" looks shady.

Read some threads, but ended up confusing myself more... so if anyone can point me in the right direction, I'd appreciate it! I did find the list of questions in a lot of the threads, so I've answered them below:

1. Who is the named plaintiff in the suit? L V N V

2. What is the name of the law firm handling the suit? S & S

3. How much are you being sued for? 900+

4. Who is the original creditor? HSBC

5. How do you know you are being sued? Served summons

6. How were you served? In person.

7. Was the service legal as required by your state? I have no idea.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? received some letters from them in the past but didn't know what to do with them.

9. What state and county do you live in? Oakland County, MI

10. When is the last time you paid on this account? 03/07

11. What is the SOL on the debt? I believe 6 years.

12. What is the status of your case? Suit served? Motions filed? Suit served.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

14. Did you request debt validation before the suit was filed? No.

15. How long do you have to respond to the suit? 21 days from today.

16. What evidence did they send with the summons? Exhibit A is an "account summary" from HSBC... looks like they just typed it out in Word. The next page is from a representative for LVNV that states that account #xxxx was tended to me in May 06, HSBC sold it to Plaintiff's assignor on April 08 and now Plaintiff has right to collect purchased balance of $700+.

Edited out personal info - was a little out of sorts when I originally posted, sorry!

Edited September 8, 2012 by tp63412

[antiquedave]

Edit your post so that it does not have any information that can identify you or your account. You are referring to an alleged debt correct?

[Savoir]

First of all S & S is the law Firm .... J is the lawyer representing. LVNV Funding is the Plaintiff.

No big deal but you need to pay attention to detail.

I beat S with J representing (a different plaintiff) for a $12,000 debt that they claimed I had incurred with Chase Bank (my first suit ..... I was in the same situation you are in ....I had no idea what to do and was intimidated by the judicial system ). Fortunately I ended up here, much like you, and the wonderful people here guided me through the process to a victory at trial.

S & S are sloppy, uninformed and will do nothing but try to intimidate you with paper (if they even have any).

LVNV is a junk debt buyer (JDB). LVNV purchased the debt (for pennies on the dollar) from HSBC.

You have two choices here ....... you can fight it out in court or .... you can choose to use private contractual arbitration (this is assuming that your agreement with HSBC has an arbitration clause in it).

If you decide to fight in court:

The JDB will have a tough time proving standing to sue.

HSBC sold the account to LVNV

LVNV will have to provide a specific bill of sale from HSBC in order for them to be able to prove they own the alleged account and have the right to sue (standing).

As I said, S will try to bully you; you will have to be astute and challenge everything they allege. Not very hard to do since most of their BS is easy to counter.

On the other hand ..... if you decide to elect arbitration, see this article.

For an amount this small I would elect arbitration if you can find an HSBC Credit Account Agreement for the period of years in which your account was active.

[BrunoTheJDBkiller]

Not sure how MI treats the SOL, but Chase bought HSBC's credit card divsion in August of 2011. They own it, so their SOL applies, which is 3 years. You may be able to pursue this. 2007 is five years ago.

[tp63412]

Thanks for the reminder to edit my post; appreciate that.

Savoir, thanks for the clarification. This is the first time I've had to deal with anything in court, so I'm a little over my head. The link you provided had the 2006 and 2008 cardmembers' agreement, both of which have arbitration clauses in them. What are the pros and cons of going to court vs. arbitration?

Bruno, good to know. I'm currently trying to figure out if their home state statute applies or my home state... no luck yet.

[tp63412]

Not sure how MI treats the SOL, but Chase bought HSBC's credit card divsion in August of 2011. They own it, so their SOL applies, which is 3 years. You may be able to pursue this. 2007 is five years ago.

Found this in the 2008 Cardmembers' Agreement...

"Applicable Law

This Agreement and your Account will be governed by federal law

and, to the extent state law is applicable, the laws of the state of

Nevada, whether or not you live in Nevada and whether or not

your Account is used outside Nevada. This Agreement is entered

into in Nevada, your Account is maintained in Nevada, and all

credit under this Agreement will be extended from Nevada."

Is that my opening? A quick search says Nevada's statute of limitations for open-ended accounts is 4 years.

[Cliff2009]

Found this in the 2008 Cardmembers' Agreement...

"Applicable Law

This Agreement and your Account will be governed by federal law

and, to the extent state law is applicable, the laws of the state of

Nevada, whether or not you live in Nevada and whether or not

your Account is used outside Nevada. This Agreement is entered

into in Nevada, your Account is maintained in Nevada, and all

credit under this Agreement will be extended from Nevada."

Is that my opening? A quick search says Nevada's statute of limitations for open-ended accounts is 4 years.

I would elect arbitration with the law firm/JDB then look into your state rules to see if you motion to compel before you answer, or as part of your answer.

[tp63412]

MCR says, "Affirmative defenses must be stated in a party's

responsive pleading, either as originally filed or as amended in accordance with

MCR 2.118. Under a separate and distinct heading, a party must state the facts

constituting the existence of an agreement to arbitrate."

... so does that mean I have to contact JAMS and send in my paperwork before I file my answer, or do I just create a new heading in my answer titled "Arbitration Election"?

[Savoir]

What are the pros and cons of going to court vs. arbitration?

In a nutshell:

Fighting it out in court entails hours and hours of research; pleadings. hearings, diligent observation of procedure and a final outcome that is dependant upon drawing a judge that isn't anti Pro Se and knows consumer law.

Arbitration in the right forum (JAMS) costs the plaintiff megabucks to collect IF they can win. For the amount they are suing you for ....... they just won't follow you into arbitration. It's just profit/loss for them.

Bruno's argument for a foreign states SOL is more likely to be won in arbitration than in MI's judicial system.

Granted, if you argue appropriately in court and get a bad ruling you have the safety net of an appeal (which is NOT available in arbitration ..... again depending on your agreement).

[Savoir]

MCR says, "Affirmative defenses must be stated in a party's

responsive pleading, either as originally filed or as amended in accordance with

MCR 2.118. Under a separate and distinct heading, a party must state the facts

constituting the existence of an agreement to arbitrate."

... so does that mean I have to contact JAMS and send in my paperwork before I file my answer, or do I just create a new heading in my answer titled "Arbitration Election"?

You would use the existence of an arbitration clause in your Card Member Agreement as an affirmative defense.