bmc100 Posted December 9, 2012 Report Share Posted December 9, 2012 As most of us know, it is very difficult to defend a credit card case and win in Michigan. I wanted to share not only a step-by-step guide to Defending a lawsuit, but also the errors that I continuosly see pro se Defendant's make from filing an answer to the errors in their oppositions to summary judgment. 1. Service of the complaint and summons, if served in person - you have 21 days to respond, if served by mail - you have 28 days to respond. 2. you have to respond to each numbered allegation in the complaint in one of the following three ways: MCR 2.111©(1)(2)(3). A. The Defendant denies this allegation in its entirety B. The Defendant admits this allegation in its entirety C. The Defendant lacks knowledge of information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial. MCR 2.111(D) - Form of denials, Each denial must state the substance of the matters upon which the pleader will rely upon to support the denial. 3. You cannot object to an allegation or just simply deny the allegations. You need to support the denial with a defense to the allegation or some other issue that exists. I see too many posters objecting to allegations, which is an easy path to a judgment. 4. As mentioned, you can list defenses to the allegations. The two primary defenses to JDB lawsuits on credit cards are 1) Failure to state a claim and 2) Lack of Standing. Michigan does have a statute of frauds law, but this is based upon written contract law, so do not use it in CC suits. You could use it prior to 1994, but the banks lobbied to get the law changed. 5. Here is a big issue I see in many of the Plaintiff's complaints that no one ever challenges, the proper pleading of the assignment in the complaint. In the last 6 or 7 cases I have commented on, the complaint only reads something like this: CACH, Midland PRA Plaintiff v. Pro Se Defednant Now comes JDB XYZ, Plaintiff filing this complaint....etc. 6. MCL 600.2041 states the “every action shall be prosecuted in the name of the real party of interest. In nearly identical wording, MCR 2.201( requires that an action must be prosecuted in the name of the real party of interest. As a result, the Plaintiff has failed to state a claim where relief can be granted, pursuant to Masterspark Co. v. Hickerson, 211 Mich 411, 415; 179 N.W. 232 (1920), and McKnight v. Lowitz, 176 Mich 452, 453, 142 N.W. 769 (1913), an assignee must plead the assignment of the debt from the assignor within it’s complaint to establish that it is the real party of interest sufficient to support a cause of action. 7. Also, I have seen in every case that the Plaintiff never attached the bill of sale or other relevant documents to the complaint. Most times JDBs will not do so, since 90% of cases go uncontested. 8. I have also been advocating to many posters to file a motion to dimiss, prior to filing an answer. If you see that the Plaintiff did not plead the assignment, do not let the case move forward until they can either correct their mistakes by properly pleading the assignment and by attaching the proper documentation to the complaint. 9. In every case, the assignment documents are missing. The Plaintiff will usually provide the bill of sale and a computer printout with your personal information in it. The bill of sale is signed by an employee of the original creditor, but carefully read the bill of sale. It will also state other documents that the Plaintiff does not want you to see. Given recent case law, if the Plaintiff cannot provide the written contract upon which the sale is based that also shows that your account was included in the sale of accounts, the Plaintiff has failed to show they have standing. 4 Quote Link to comment Share on other sites More sharing options...
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