Those being sued in Michigan by a JDB, step by step in Defending

[bmc100]

you need to look at the transcript of the case...which is in the thread I posted

[BV80]

It's a pdf file, and for some reason, I can't open files right now.  If it's not any trouble, could you please copy and paste the relevant parts?

[dellb130]

Dellb130 just emailed me, they had their status conference this morning. Case dismissed with prejudice.

 

I am 3 for 3 helping posters defeat JDBs and I have two OCs that I beat in court!!

 

Hopefully NervousOne knocks down the Opposition we created and gets on the road to having the case dismissed!!

 

The strategy I outlined works, you just need to execute it properly!!

Lol thanks for the shout out. Anyway another thing I think may have helped me a little bit is i tried to present myself well. I don't really have a nice suit (i should I know) but I wore nice slacks, button up, tie, my really nice going to a nice wedding shoes, lucky gold-toe socks, clean hair that's not in my eyes, and i sat up straght and poised. I never interrupted the judge, spoke when prompted and let the attorney and judge handle the rest. I don't know if this helped a lot, but I like to make a good impression, people will judge you a lot on looks (whether they should or not) and that can make a difference right there.

 

anyway, sorry for the threadjack just thought I'd throw that in there. Thanks again for the great help BMC100

[shady77]

this guide will help a lot of us here is michigan i'm taking notes!

[bmc100]

Last night I looked up in the Martindale legal guide on Michigan Compiled Laws - "Bill of Sale" and there is no statute that relates to the Bill of Sale and what documents are needed.

 

Though the two caselaws I like to use are unpublished, they are the only caselaws that specifically opinion on what is needed to prove the assignment. Hopefully the supreme court in Michigan takes up one of these cases and publishes an opinion on the matter, it will make everyone's life much easier.

[bmc100]

NervousOne just emailed me....MSJ denied!!!

[bmc100]

I am starting to get quite a few messages asking for help. I will try to help anyone that asks, but remember one thing - I am not an attorney, I am not licensed to practice law.

 

The people I have helped have been successful in either getting their case dismissed or the MSJ denied. I just do not want to mislead anyone.

[FightBackNow]

What a great thread bmc100!

 

Thank you on behalf of all Michigan residents facing a lawsuit by a JDB.

[bmc100]

Now, let's say you face the Plaintiff's Motion for Summary Judgment and defeat it, the next step is the court sets a trial date. For a JDB, their best lead card they have is filing the MSJ. To a Defendant, the best trump card they have is filing their own MSJ.

 

When a judge denies a JDBs MSJ...it is like watching a balloon pop in front our your eyes. As I said in a prior post, from the vert start, you have a stronger hand then they do..even if you never had to defend yourself before. All the evidence that they have is laid out in their MSJ, once the judge denies it, we has a Defendant need to capitalize on that opportunity.

 

It is like a boxer who gets hit flush with a cross, hook or upper cut, they might not fall down...but they are wobbeling and one more punch will put them down for the count.

 

Instead of waiting for trial, file your own MSJ and try to get the case dismissed. Chances are, the Plaintiff will not allow a trial to happen and most times will dismiss the case right before the trial date. Do not allow them them opportunity to do that, it will be dismissed without prejudice. Again, chances are they will not refile, but you cannot use a dismissal w/o prejudice to get their trade line off of your credit report. and it will still allow them to resell the account to another JDB.

 

Force their hand and get the judge to rule one way or the other on your case. The judge will likely create a court order specifying what the Plaintiff needs to come up with in order to prove their case. Their will be a continuance and after the continuance, the judge will then dismiss the case with prejudice.

 

the end result, no more debt buyers/collectors that you will need to deal with.

[georgejonesfan]

Now that Nervousone got his plaintiff's MSD denied, can he go ahead and file his own, or is it too late in the game for that?

[bmc100]

When he is ready, he should file his own MSJ. If the JDB does push through with a trial, the outcomes of trial are too unpredictable. HE can play the probabilities and hope they dismiss prior or he will have to be ready to object, object, object to a point where he weakens their evidence to a point where the judge cannnot add weight to it.

[bmc100]

I need Michigan caelaw on Affidavits created in one state, but then signed and notarized in another state.

Can I get any help on this one?

[Brotherskeeper]

I need Michigan caelaw on Affidavits created in one state, but then signed and notarized in another state.

Can I get any help on this one?

 

I don't know if this helps or not. Michigan is discussed on pg 12 in National Assoc. Secretaries of State (NASS) Report on State Notarization Policies and Practices (Jan. 2011, updated May 2011):

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&ved=0CHAQFjAI&url=http%3A%2F%2Fwww.nass.org%2Findex.php%3Foption%3Dcom_docman%26task%3Ddoc_download%26gid%3D1084&ei=MxTOUOODHNCr0AGer4Fo&usg=AFQjCNGa0mTbleJ95RqanVF6NbsA7O2gww&sig2=lETj-gET8BVboUNRYUYJuQ&bvm=bv.1355325884,d.dmQ 

 

Apsey v. Memorial Hosp., 730 N.W.2d 695, 477 Mich. 120 (2007).

http://scholar.google.com/scholar_case?case=10925185431465325821&q=aspey+v+memorial+hospital&hl=en&as_sdt=2,47

[BV80]

I need Michigan caelaw on Affidavits created in one state, but then signed and notarized in another state.

Can I get any help on this one?

 

How do you know where the affidavit was created?  The affiant must (allegedly) sign in front of the notary.  So they would have to be from the same state, or depending upon state law, from the same county.    I'm not sure it matter where the affidavit itself was created or printed. 

[bmc100]

This affidavit was created in New York. It was notarized in Texas. Here's the thing, isn't the declarant supposed to create their own affidavit based upon their own personal knowledge?

How can an affidavit be created in one state and possibly signed, but notarized on the other side of the country?

[Mick23]

Hey bmc100 The affidavit I have from Midland is also one that starts with New York at the top and signed on the next page and notarized in Texas... leaving for court at around 12:30

let me know what I can do with this if anything.

Thank you,

[Flyerfan]

I would at least mention it. It is very suspicious and attacks the credibility.

 

Good luck today. What is today? MSJ, trial, pre-conference?

[bmc100]

Mick, look at that affidavit again. It should be from an employee of Dell Financial Services. Maybe a Leah Ann?

 

Good Luck today!!

[Mick23]

Erin Lea Towns

[Promise4]

I met today with an attorney for Midland funding. She showed me some statements and claimed they were mine. I told her i had never seen them before and she would need a lot more than that. I requested her to provide a signed document "By Me" that showed I had an account with the said credit card company. As well as all the statements and signed receipts by me, as well as validation from the said credit card company showing they purchased an account. She stated and I quote " I do not need to, what i have is sufficient for our claim"! So i suggested we speak with the judge. I have to admit I was nervous and did not move for dismisal, she asked for a 90 day motion for discovery. I realized afterward that she did not have enough. Now I have to file a motion discovery paper. Im in Michigan, any help would be appreciatted. Any idea's or advice would be appreciatted as well.

I have been reading this forum topic but im still not totally clear on what i need to do next and how.

 

Thanks In Advance!

[Savoir]

You don't need to file a motion.

Just send your discovery requests (production of documents, Interrogatories, Admissions) to the Plaintiff's attorney of record.

MCR 2.300 outlines the rules.

[bmc100]

I met today with an attorney for Midland funding. She showed me some statements and claimed they were mine. I told her i had never seen them before and she would need a lot more than that. I requested her to provide a signed document "By Me" that showed I had an account with the said credit card company. As well as all the statements and signed receipts by me, as well as validation from the said credit card company showing they purchased an account. She stated and I quote " I do not need to, what i have is sufficient for our claim"! So i suggested we speak with the judge. I have to admit I was nervous and did not move for dismisal, she asked for a 90 day motion for discovery. I realized afterward that she did not have enough. Now I have to file a motion discovery paper. Im in Michigan, any help would be appreciatted. Any idea's or advice would be appreciatted as well.

I have been reading this forum topic but im still not totally clear on what i need to do next and how.

 

Thanks In Advance!

They still have to prove standing..so what if they show you a few statements...they are not the original creditor..

[Promise4]

Savior, Thank you. I thought i would need to use documents from the Court House?

 

BMC, that was my thought exactly. She could not produce what i wanted and felt she was compelled to produce. Nor do I believe she ever will be able to produce. I'm just not sure how things move forward from here. I am going to re-read your opening comments and try to better comprehend them. So that you know I have read a lot of your post on here and they were very helpful in my first steps.

[bmc100]

Savior, Thank you. I thought i would need to use documents from the Court House?

 

BMC, that was my thought exactly. She could not produce what i wanted and felt she was compelled to produce. Nor do I believe she ever will be able to produce. I'm just not sure how things move forward from here. I am going to re-read your opening comments and try to better comprehend them. So that you know I have read a lot of your post on here and they were very helpful in my first steps.

Please start your own thread outlining everything that has transpired up to this point.

[bmc100]

Another defense that one could use is State Based Usuary. If you are being sued by a creditor or JDB and the OC is not a Nationally Chartered bank. The bank is not part of the National Banking Act of 1834 or 1840...I cannot remember the year it was passed. That law preceded the Federal Reserve Act. State Chartered Banks are subject to their home state's usuary laws...if the law exists.

 

In most states, a creditor can charge an interest rate specificed in a contract, line of credit or CC as high as they want, but it has to be laid out in the contract or terms and conditions to the account. If it does not specify the interest rate or how interest is calculated, then there is typically an interest rate ceiling to those accounts.

 

In Michigan, a Credit Card's max interest rate is 25%. In Utah, it is 10%, In South Dakota is 12%..etc, if the rate is not specificed in the terms of the contract. there are a few things on needs to be aware of.

 

The terms and conditions to an account state that the agreement has a choice of law provision and that any disputes that need to be resolved...the prevailing laws will be based upon their home state.

 

In Michigan there is a Rule of CP that states that the parties must raise the choice of law within their pleadings within a certain period of time...The RCP is either 2.111(J) or 2.112(J). There is caselaw, though limited to back this argument.

 

If you can export another state's usuary laws as a defense and especially in the case of a JDB where they rarely produce the underlying agreement or contract, those other state laws usually have a provision that makes the contract unenforcable.

 

With the pleadings I have been helping some of the posters with, the court has usually been asking the Plaintiff for an underlying contract to the assignment, which up to this point, there has not been one case where the JDB produced it.

 

In every case, the JDB has never provided a copy of the terms and conditions either. I would google the card issuer and the specific type of CC account that you had to pull up a current copy of the terms. If there have been multiple assignments to different creditors, then you need to find multiple CC agreements from the issuer and every OC in the chain of title. Look for the paragraph in the agreement that speficies the choice of law provision. Then, google to see if any creditor is a state chartered bank. If so, plead the choice of law in your answer or MSJ.

 

The interest rates will be published in an addendum to the terms, but I would not show that to the court. I would show that no interest is specified in the terms and state based usuary laws apply. remember, in the case of a JDB, they will be suseptible to state based usuary laws and they cannot defend it. They are not the OC.

 

In most cases, the JDB either provides a handful of statements from the OC or they provide their own statement with an applicable interest rate. If they do not show in a JDB acct statement how they came to that rate, hammer it.