Asste Acceptance in Michigan

[upsman40]

My pre trial conference is 10 days away. What should I expect and how should I present myself. My previous post have all previous communications documented, however I am now getting extremely nervous as obviously I am not a lawyer

[1stStep]

Expect the lawyer to badger you into a settlement - he/she will probably even have some paperwork to sign to "make it all stop."

Don't settle and don't sign.

[upsman40]

Should I file a motion to compel discovery seems how they have not provided documents requested even though they stated they had them and alternatively strike the complaint and dismiss the action. If they fail to provide the documents requested move to SJ for lack of evidence to support their claim??

[bmc100]

Pre-trial is very simple...no arguements going to be made. The court will set discovery..just do not agree to a stipulated judgement.

You will barely speak when your case is called. Talk when the judge addresses you.

It will last at most 5 minutes.

[NervousOne]

My pre trial conference is 10 days away. What should I expect and how should I present myself. My previous post have all previous communications documented, however I am now getting extremely nervous as obviously I am not a lawyer

I understand exactly what you are going through, I almost turned around twice on the way to pre trial, but don't worry it was so simple! I signed in at clerks desk and she introduced me to the lawyer ,he only came with a paper for a default judgment expecting me to be a no show! Make sure you show up, they are expecting you to be a no show! He had no settlement offer so we went in the court room and sat for about 10 min before being called into a private room with only me, the rent a lawyer and the judge. It was very calm and easy, the judge asked if I recognized the debt and I said no, he set up discovery and sent me home. 5-10 min Max in the room and that's was it! This was my experience in central Mi. Hang in there , everyone here will help you through this.

Edited November 13, 2012 by NervousOne

[upsman40]

Thanks everyone I have been reading up and have bought LadyHunters book as well, some great points of argument in there that pertain to my case. We have already exchanged discovery, however if you look at my earlier posts they Fulton, Friedman, and Gullace either did not answer the discovery questions claiming proprietary info or said they were still gathering info and would get t to me as soon as they were able, I am assuming they dont and will never be able to get that info. however where does that put the pre trial? should I ask to compel the discovery?

[BrunoTheJDBkiller]

Send them requests for admissions One for each item they did not produce. "We can get it" doesn't fly.

"Admit that the plaintiff does not have and cannot produce ------."

The last one would be "Admit that the plaintiff did not have the proper evidence to prevail in the instant action on the day it was filed with the court."

[upsman40]

Thanks Bruno, should I send that before the pretrial or give it to the court and the Plaintiff at the pre trial??

[upsman40]

Should I also hammer them for the statements they used saying information is proprietary, such as actual amount they purchased the alleged debt for?

[BrunoTheJDBkiller]

Send them now. Forget what they paid for the debt, they are right on this one. Concentrate on making them prove they bought the debt.

[upsman40]

REQUESTS TO ADMIT FACTS

The Defendant requests that the Plaintiff answer the following requests to admit facts pursuant to, and in accordance with, Federal Rules of Civil Procedure 36. If the Plaintiff objects to any requested admission, the reason therefore shall be stated. The Plaintiff's answer shall specifically admit or deny the requested admission, or set forth in detail the reasons why the Plaintiff cannot truthfully admit or deny the requested admission. A denial shall fairly meet the substance of the requested admission, and when good faith requires that the Plaintiff qualify an answer or deny only in part of the matter of which an admission is requested, the Plaintiff shall specify so much of it as is true and qualify or deny the remainder, again detailing the specificity of the denial of the part thereof.

Fact No. 1

Please admit that you are unable to provide the person who has known knowledge of the facts relevant to this case, including but not limited to all persons interviewed by you, by your counsel or by any person cooperating with you in this action, giving a description thereof, for each person you may call as a witness in this case, that can testify under oath as well, to the validity, business dealings, structure and means of reporting and electronic filing procedures of the alleged original creditor in your summons and complaint and all exhibits contained therein.

Fact No. 2

Please admit that you do not have and cannot produce the original contract or agreement alleged in this action, please state the following:

1. Terms of alleged contract or agreement

2. Credit Limit Amount Financed in the alleged contract or agreement:

3. Date and Monetary Value of any valueable

Fact No. 3

Please admit that the plaintiff does not have in its custody and cannot produce, legible copies and/or originals of any documents with Defendant’s signature on it.

Fact No. 4

Please admit that you did not send the defendant any notification of assignment of the alleged debt on or before summons and complaint was filed for alleged debt as shown and stated under exhibit A. If plaintiff has document specifically linking alleged account to affidavit from original alleged creditor please provide

Fact No. 5

Please admit that you do not have and cannot produce a copy of or the original alleged Household Finance Cardholder agreement with defendants signature.

Fact No. 6

Please admit that you do nor have and cannot produce the documents proving that allege debt is directly tied to the Exhibits provided in previous interrogatories. i.e original assignment of specific account from HFCS being directly tied to exhibits alleged to be defendants and owned by Asset Acceptance LLC.

Fact No. 7

Please admit that you do not have evidence proof of the defendants alleged debt to Plaintiff, including the alleged contract, between the plaintiff and defendant or any other instrument constructed solely for the purpose of creating a loan agreement between the Plaintiff and Defendant bearing the defendants signature and/or Please produce the contract that legally requires the Defendant the amount entered into complaint.

Fact No. 8

Please admit that you do not have and cannot produce the original copy of the alleged account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws that the agreement and account are governed plus other important facts and signature of Defendant.

Fact No. 9

Please admit that you do not possess and cannot produce the original notification allegedly sent to the defendant on April 12, 2012 by Asset Acceptance, or proof that any such delivery was made.

Fact No. 10

Please admit that you do not have and cannot produce record of document or document(s) that proves you sent the defendant a notice of assignment as you have already stated in writing on the bottom of your notice of assignment in exhibit A.

Fact No. 11

Please admit that you do not have and cannot produce copies of any/all statements generated while this alleged account was open with the plaintiff.

Fact No. 12

Please admit that you do not have and cannot produce an accurate history of interest charged on this alleged account with the plaintiff and you cannot provide the exact dates the interest rates changed, and you cannot provide the list of various rates that were changed during this alleged debt and you cannot provide the exact method of amortization.

Fact No 13

Please admit that you do not have and cannot produce any and all notices sent to defendant by Plaintiff announcing changes in interest, fees or penalties and/or the terms of the alleged debt.

Fact No 14

Please admit that you do not have and cannot produce the original Dunning letter that was allegedly sent to the plaintiff.

Fact No. 15

Please admit that you do not have and cannot produce an agreement with the Plaintiff that grants Fulton, Friedman, & Gullace Attorney(s) the authority to collect this debt.

Fact No. 16

Please admit that all records allegedly held by the plaintiff, which allegedly prove Defendant is indebted to plaintiff, are not Plaintiff’s own business records which were originated by and kept in the regular course of business by Plaintiff.

Fact No. 17

Please admit that the Plaintiff does not originate or produce any billing statement records on behalf of the alleged original creditor.

Fact No. 18

Please admit that the Plaintiff does not have and cannot produce any original or legible copies of any documents with the Defendants signature on them pertaining to the alleged account in the Plaintiffs case.

Fact No. 19

Admit Plaintiff’s witness does not have and cannot produce in their immediate possession, or custody and control, all records pertaining to the alleged account and debt of the Defendant, which is the subject matter of this lawsuit.

Fact No. 20

Admit Plaintiff’s witness does not maintain all the alleged business records for the alleged account and alleged debt, which is the subject matter of this lawsuit.

How does this look? Too Much, should I be asking them to produce documents they already could not produce?

Fact No. 21

Admit Plaintiff’s witness has simply read information off a computer screen, computer generated document, or other documentation that was, electronically or otherwise, provided to Plaintiff by the alleged original creditor.

Fact No. 22

Admit Plaintiff’s witness is only advised of the alleged balance allegedly owed to the Plaintiff by the Defendant, and has no direct, personal, firsthand knowledge of the alleged account and alleged debt as it was incurred.

Fact No. 23

Admit that the plaintiff did not have the proper evidence to prevail in the instant action on the day it was filed with the court

[upsman40]

So the plaintiff has attached exhibits A,B, and C Exhibit A being an Assignment and Bill Of Sale from the OC(HSBC)

Exhibit A

Assignment and Bill of Sale

HSBC Consumer Lending (USA) Inc, on behalf of and as managing company for Beneficial Company LLC and HFC Company LLC and their respective subsidiaries (hereinafter called "seller") has entered into an Account Purchase and Sale Agreement dated March 15, 2011. ("Agreement") fpr the sale of accounts dated in the intitial paragraph of the agreement thereof to Asset Acceptance LLC, (herinafter called "Purchaser"), upon the terms and conditions set forth in that agreement.

NOW, THEREFORE, for good and valuable consideration, seller hereby sells, assigns, and transfers to purchaser, its successor and assigns, all Sellers rights, title, and interest in each and every one of the Accounts described in the Agreement and within exhibit B, attached hereto, and contained within the electronic meddia described therin,

Purchaser and Seller agree that the Purchase Price shall be as stated in Paragraph 3 of the Agreement.

IN WITNESS WHEREOF, Seller has signed and delivered the instrument on the 15 day of March, 2011.

HSBC-Consumer Lending (USA) Inc.

By: K.M. Collier

Printed Name: Kevin Collier

Title Senior Vice President

Exhibit B is a claim Summary showing Client as Asset Acceptance with reference Numbers and account number also showing Name and Adress of myslef referencing Household Finance as the creditor dated August 10, 2012 with a File Number as well and the detail of how total owed has been derived....Does this mean I'm screwed??? Exhibit C is examples of bulk mailings Benficial sent to potential customers no reference on them just anonymous bulk mailing for credit

[BrunoTheJDBkiller]

Tune it up, leave out the embellishments and arguments. The simpler the better. "Admit you do not have the original application for the account" is harder to object to than some three paragraph explanation of why. Just stick to the documents, forget the stuff about who keeps records. You want them to admit they do not have ONLY the docs you asked for. That's it. The rest can be covered later if necessary. This is how you wipe the floor with them.....they have to admit or deny that they have these documents. If they say they do, then you file a motion to compel production of the docs they claim to have that they didn't give you when you asked for them. See how the strategy works?

[ladyhunter]

Quote: "Does this mean I'm screwed??? "

No, it is called intimidation! Pure and simple.

Don't let fear cloud your clear thinking. Listen to Bruno. He gave you great advice! You can win.

[upsman40]

Thanks everyone I will simplify the admissions and repost tomorrow.!! And LadyHunter thanks for the book I purchased a few days ago helps tremendously!!

[upsman40]

If the affidavite of assignment states Asset Acceptance LLC operats under the laws governing Delaware can I use there statue of limitations against them instead of Michigans?

[ladyhunter]

I'm glad it is helping! That was the purpose of the book.

If Michigan has a "borrowing statute," (I don't know if they do or not, but most states do), then the answer to your question is you can use the SOL of the state of the OC. For example, BOA is DE. If the OC is BOA, then you can use DE SOL.

In my case, I put in DE because I wanted to test the court to see if it would hold. Of course, it did not go that far, and it probably would not have held. But that's how things get changed. Someone has to start the fight.

Edited November 15, 2012 by ladyhunter

[bmc100]

but you can use laws from another state. MCR 2.112(J). You have to notify the opposing party prior to MSJ or Trial. Typically you should do it in your answer or the Plaintiff should notify the defendant in their complaint.

[upsman40]

DEFENDANT'S SECOND SET OF INTERROGATORIES, REQUEST(S) FOR ADMISSION, AND REQUEST FOR PRODUCTION OF DOCUMENTS

Defendant submits the following discover request to be answered by Plaintiff. The interrogatories are submitted pursuant to MCR 2.309, and the information sought must be given under oath whether that information is in the possession of or secured by you, your attorney , an investigator retained by you or on your behalf, your insurer or any other agent or representative whether personally known to you or not. The responses must be served on the Defendant and/or Defendants attorney with 28 days from the time these interrogatories, request(s) for admissions, and request for production of documents are served on you.

The request(s) for admission is/are submitted in accordance with MCR 2.312. You have 28 days after service of this request to serve your responses on Defendant and/or defendants’ attorney. If you do not serve a written answer or objection addressed to the matter in this request within 28 days after service, each matter to which a request is made will be deemed admitted.

The request for production is submitted pursuant to MCR 2.310, and the documents may be produced by sending copies to the office of the defendant and/or the defendants’ attorney within 28 days from the time this request for production is served on you.

For the purpose of these requests for discovery, the following definitions apply:

A. Person means any individual or entity, including a sole proprietorship, an association, a company, a partnership, a joint venture, a corporation, a trust, or an estate.

B. Document means any written, recorded, or graphic matter, however produced or reproduced, whether it now exists or not.

C. Identify, when used with respect to a person, means to state (1) the name, address, and telephone number of the person; (2) the name of the person's present employer, place of employment, and job title; and (3) whether the person was affiliated at any time with any party to this litigation, by employment or otherwise, and what the nature and dates of the affiliation were.

D. Identify , when used with respect to a document, means (1) to specify the nature of the document (for example, letter, memorandum) ; (2) to state the date on the document or, if there is none, the date the document was prepared; (3) to describe in general the subject matter of the document ; (4) to identify each person who wrote, signed, dictated, or otherwise participated in preparing the document; (5) to identify each addressee; and (6) to identify each person who now has a copy of the document.

E. Identify, when used with respect to an oral communication, means (1) to state the date of the communication; (2) to identify each participant and each person who was present; (3) to state what was said by each participant or the substance of what was said if you do not recall the actual content; (4) to state whether there are any documents that set forth, summarize, or refer to any portions of the oral communication ; and (5) if such documents exist, to identify them and each person who has a copy of a document.

All of these requests for discovery are continuing in nature, pursuant to MCR 2.302(E)(l), and supplemental answers are required if you receive, either directly or indirectly, additional or further information up to the time of trial.

REQUESTS TO ADMIT FACTS

The Defendant requests that the Plaintiff answer the following requests to admit facts pursuant to, and in accordance with, Federal Rules of Civil Procedure 36. If the Plaintiff objects to any requested admission, the reason therefore shall be stated. The Plaintiff's answer shall specifically admit or deny the requested admission, or set forth in detail the reasons why the Plaintiff cannot truthfully admit or deny the requested admission. A denial shall fairly meet the substance of the requested admission, and when good faith requires that the Plaintiff qualify an answer or deny only in part of the matter of which an admission is requested, the Plaintiff shall specify so much of it as is true and qualify or deny the remainder, again detailing the specificity of the denial of the part thereof.

Fact No. 1

Please admit that you do not have and cannot produce the original contract or agreement alleged in this action, please state the following:

1. Terms of the Contract or Agreement:

2. Credit Limit Amount Financed in the Alleged Contract or Agreement:

3. Date and Monetary value of any valuable consideration received on the contract or agreement:

4. Date and Monetary value of any payments or credits alleged to be executed on the contract or agreement:

Fact No. 2

Please admit that the plaintiff does not have in its custody and cannot produce legible copies and/or originals of any documents with Defendant’s signature on it.

Fact No. 3

Please admit that you did not send the defendant any notification of assignment of the alleged debt on or before summons and complaint was filed for alleged debt as shown and stated under exhibit A in summary and complaint. If plaintiff has document specifically linking alleged account to affidavit from original alleged creditor please provide

Fact No. 4

Please admit that you do not have and cannot produce a copy of or the original alleged Household Finance Cardholder agreement with defendants’ signature.

Fact No. 5

Please admit that you do not have and cannot produce the documents proving that allege debt is directly tied to the Exhibits provided in previous interrogatories. i.e. original assignment of specific account from HFS being directly tied to exhibits alleged to be defendants and allegedly owned by Asset Acceptance LLC.

Fact No. 6

Please admit that you do not have evidence proof of the defendants alleged debt to Plaintiff, including the alleged contract, between the plaintiff and defendant or any other instrument constructed solely for the purpose of creating a loan agreement between the Plaintiff and Defendant bearing the defendants signature and/or Please produce the contract that legally requires the Defendant the amount entered into complaint.

Fact No. 7

Please admit that you do not have and cannot produce the original copy of the alleged account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws that the agreement and account are governed plus other important facts and signature of Defendant.

Fact No. 8

Please admit that you do not possess and cannot produce the original notification allegedly sent to the defendant on April 12, 2012 by Asset Acceptance, or proof that any such delivery was made.

Fact No. 9

Please admit that you do not have and cannot produce record of document or document(s) that proves you sent the defendant a notice of assignment as you have already stated in writing on the bottom of your notice of assignment in exhibit A in original summary and complaint.

Fact No. 10

Please admit that you do not have and cannot produce copies of any/all statements generated while this alleged account was open with the plaintiff.

Fact No. 11

Please admit that you do not have and cannot produce an accurate history of interest charged on this alleged account with the plaintiff and you cannot provide the exact dates the interest rates changed, and you cannot provide the list of various rates that were changed during this alleged debt and you cannot provide the exact method of amortization.

Fact No. 12

Please admit that you do not have and cannot produce any and all notices sent to defendant by Plaintiff announcing changes in interest, fees or penalties and/or the terms of the alleged debt.

Fact No 13

Please admit that you do not have and cannot produce the original Dunning letter that was allegedly sent to the plaintiff.

Fact No 14

Please admit that you do not have and cannot produce an agreement with the Plaintiff that grants Fulton, Friedman, & Gullace Attorney(s) the authority to collect this debt.

Fact No. 15

Please admit that all records allegedly held by the plaintiff, which allegedly prove Defendant is indebted to plaintiff, are not Plaintiff’s own business records which were originated by and kept in the regular course of business by Plaintiff.

Fact No. 16

Please admit that the Plaintiff does not originate or produce any billing statement records on behalf of the alleged original creditor.

Fact No. 17

Please admit that the Plaintiff does not have and cannot produce any original or legible copies of any documents with the Defendants signature on them pertaining to the alleged account in the Plaintiffs case.

Fact No. 18

Admit Plaintiff’s witness does not have and cannot produce in their immediate possession, or custody and control, all records pertaining to the alleged account and debt of the Defendant, which is the subject matter of this lawsuit.

Fact No. 19

Admit Plaintiff’s witness has simply read information off a computer screen, computer generated document, or other documentation that was, electronically or otherwise, provided to Plaintiff by the alleged original creditor.

Fact No. 20

Admit Plaintiff’s witness is only advised of the alleged balance allegedly owed to the Plaintiff by the Defendant, and has no direct, personal, firsthand knowledge of the alleged account and alleged debt as it was incurred.

Fact No. 21

Admit that the plaintiff did not have the proper evidence to prevail in the instant action on the day it was filed with the court

[BTO429]

Should I also hammer them for the statements they used saying information is proprietary, such as actual amount they purchased the alleged debt for?

Irrelevant,,,,the court does not care how much they paid for a debt,,,all the court cares about is setting a proper foundation for their claims

[upsman40]

Ok I get it, I remembered seeing somewhere where a person had used the phrase that "you cannot sue for more than you were acutally damaged for or the debt was aquired for" Thanks for the help

[BrunoTheJDBkiller]

That myth popped up a while back and everybody thinks it's true. This is a Kentucky statute related to the statute of frauds. In no way does it apply to credit card cases. There is zero case law becauuse nobody ever used it. What the JDB paid is irrelevant. Legally, they are allowed to collect the full amount, just like the OC.

[BV80]

Ok I get it, I remembered seeing somewhere where a person had used the phrase that "you cannot sue for more than you were acutally damaged for or the debt was aquired for" Thanks for the help

You referenced me. To which post were you replying?

[upsman40]

BV,

I will have to go back an look I am so packed full of everyones help and experiences, I'm a little whipped. I think I may have seen it on LadyHunter as well. All of you guys have been fantastic, i just hope I can keep it together and nail these Asses.

[upsman40]

I have my pre trial conference this morning against ASSet Acceptance. I am extremly nervous, nut ready to go. I looked up the Michigan Borrwoing Statue as well to see if i could claim or use DE, as this is where they are based and the alleged affidavite and Bill of Sale Assginment are both from that state but was unbale to make heads or tails, I am not sure it matters anyway. i will keep you all posted after the hearing and thank you everyone for the help....Here we GO!!

http://council.legislature.mi.gov/files/mlrc/1997/borrow.htm