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

[jrg24 12]

Short for "Interrogatories" which are questions you can ask the plaintiff or the affiant of an affidavit through the plaintiff. Rarely a use for them but one aspect I do like about ROGS is the ability to inquire about the employment location, phone number, title, etc. of the affiants of their affidavits. 

Thank you

[bmc100 236]

Just FYI - I have a whole library or pleadings and discovery requests on my laptop at home that I would be happy to share with people. I will not tell posters exactly how to use them, but there is a ton of useful arguments or phrased discovery questions that can be repositioned for one's use. I have Answers, Affidavits, MSJs, MSJ Opps, Admissions, ROGS, Doc requests, Letters to Confer, Offers to a Stipulated Dismissal...etc.

 

If one would like me to email them, please do not PM me, but ask for them on your threads. I will see your posts.

 

Thanks

[peanutrs 33]

Just FYI - I have a whole library or pleadings and discovery requests on my laptop at home that I would be happy to share with people. I will not tell posters exactly how to use them, but there is a ton of useful arguments or phrased discovery questions that can be repositioned for one's use. I have Answers, Affidavits, MSJs, MSJ Opps, Admissions, ROGS, Doc requests, Letters to Confer, Offers to a Stipulated Dismissal...etc.

 

If one would like me to email them, please do not PM me, but ask for them on your threads. I will see your posts.

 

Thanks

Your awesome bmc100 ~

I think it would be great to post those documents as a download  here in this thread.   

[bmc100 236]

Your awesome bmc100 ~

I think it would be great to post those documents as a download  here in this thread. 

 

I am not going to post them on here. All the JDBs and collections attorneys who view this site might find them and read them. I will only give them out on a first come, first serve basis to those who ask.

[Brotherskeeper 965]

New Michigan Supreme Court opinion regarding Open Account, Open and Mutual Account and Account Stated:

 

http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/12-13-Term-Opinions/143374%20Opinion.pdf

[bmc100 236]

New Michigan Supreme Court opinion regarding Open Account, Open and Mutual Account and Account Stated:

 

http://courts.mi.gov/Courts/MichiganSupremeCourt/Clerks/Recent%20Opinions/12-13-Term-Opinions/143374%20Opinion.pdf

This opinion established the SOL on Open Acct/Acct Stated Claims at 4 years.

[Brotherskeeper 965]

 In an opinion by Justice ZAHRA, joined by Chief Justice YOUNG and Justices CAVANAGH,

KELLY, andMCCORMACK, the Supreme Court held: 

 Because actions on an open account and actions on an account stated are distinct and 

independent from the underlying transactions giving rise to the antecedent debt, neither action is 

governed by the four-year limitations period provided in § 2725 of the UCC, MCL 440.2725. 

Rather, both actions are governed by the general six-year limitations period applicable to actions 

for breach of contract contained in the RJA, MCL 600.5807(8).

[Savoir 312]

 

 In an opinion by Justice ZAHRA, joined by Chief Justice YOUNG and Justices CAVANAGH,

KELLY, andMCCORMACK, the Supreme Court held: 

 Because actions on an open account and actions on an account stated are distinct and 

independent from the underlying transactions giving rise to the antecedent debt, neither action is 

governed by the four-year limitations period provided in § 2725 of the UCC, MCL 440.2725. 

Rather, both actions are governed by the general six-year limitations period applicable to actions 

for breach of contract contained in the RJA, MCL 600.5807(8).

 

 

That's the way that I read it, also.  I didn't read the complete standard of review though so, I might have missed something.

[Brotherskeeper 965]

For anyone in Michigan defending against an account stated claim, I would highly recommend reading this entire opinion, including Justice Markman's dissent. It is a primer, full of case law and pretty easy to understand. The findings (UCC 4-year SOL applied) by the Court of Appeals were reversed and remanded by the Supreme Court. This case will now go back to the Court of Appeals. The defendant will have to defeat the account stated claim. Also, he has to show his last invoice payment was disconnected from the underlying transactions, and didn't renew his promise to pay the entire debt. 

[Anon Amos 2,249]

Also, he has to show his last invoice payment was disconnected from the underlying transactions, and didn't renew his promise to pay the entire debt.

On the other hand: The jdb will have to come up with the PROOF of the last payment. So when discovery request to the plaintiff ask for production of cc statements showing payments as well as purchases; the bottom feeder may not be able to produce them.

[bmc100 236]

I originally read the COA opinion, that is where I came up with the 4 year SOL.

[bmc100 236]

One recent ideaI have. If you are getting sued by a JDB, look through all of the letters you received from the JDB, the complaint and additional documentation. See if the JDB is tacking on post charge-off interest to the account balance.

 

If they are, PM me. You might have a good FDCPA counter-claim against them. I will give you the name and phone number of a good consumer law attorney.

[Flyerfan 442]

One recent ideaI have. If you are getting sued by a JDB, look through all of the letters you received from the JDB, the complaint and additional documentation. See if the JDB is tacking on post charge-off interest to the account balance.

 

If they are, PM me. You might have a good FDCPA counter-claim against them. I will give you the name and phone number of a good consumer law attorney.

 

Is that a Michigan thing only? I thought they had limits but could still collect a state regulated interest rate.

 

Please expand?

[bmc100 236]

A recent US District Court ruling in Michigan's Eastern District - states that unless the agreement with the OC states they can collect post charge-off interest, adding that interest without the consent of the OC violates the FDCPA.  

 

Though I am no attorney, my take is that the JDB would have to produce the agreement showing they have the legal right to collect interest.

[blindspot99 7]

Just to clarify, we are talking about interest added between the time the OC charged off the account and when the JDB purchased the account. Correct?

 

The JDB can still charge interest from the time they purchased the account going forward up to either a fixed percentage set by each state or an amount governed by the original contract. Is that correct?

[shellieh98 1,505]

I read that class action and correct. It is the interest they try and tack on from the time of the charge off when the original creditor quit charging interest, to when the JDB bought the account.

[bmc100 236]

For the JDB to be able to charge that interest, it has to be stipulated in the contract.

[blindspot99 7]

@bmc100 "that interest"; does that include tacking on interest only after they purchased the account? As to the contract are we talking about the original credit agreement with the original creditor or is it stipulated in the bill of sale to the jdb or some other agreement?

[bmc100 236]

usually it will not be included in the bill of sale, rather the actual purchase agreement or forward flow agreement. To clarify, it will be interest the JDB tacks on after the OC sold the account.

[blindspot99 7]

Ok, please consider me thick headed but I am just trying to get at the details here. So for example in my case where the JDB started tacking on a statutory 5% interest rate from the month they purchased the alleged account but did not charge any interest from the time the OC charged-off the account and to the point that the JDB purchased it; would this be considered a violate as well?

[bmc100 236]

A JDB cannot charge interest on an account they did not have any purchasing rights to. If the OC still holds the rights to an account, they charge post charge-off interest to the account balance, up until they sell the account.

 

From there, the JDB might try to tack on interest for themselves once they have purchased it from the OC or even another JDB.

[BV80 2,891]

If the OC did not charge interest after the account was charged off, a JDB cannot add interest during the period that the account was charged off and before the date the JDB purchased the account.  They can only add interest beginning on the date they purchase the account.

 

For instance, if an OC charges off an account on 1/01/2013, then sells the account to a JDB on 7/01/2013, the JDB can only begin adding interest on 7/01/2013.  They cannot add interest for the time period between 1/01/2013 to 6/30/2013.

 

Again, this is only if the OC didn't add interest to the account during the period between charge off and the sale of the account.

[bmc100 236]

Its official, my laptop is dead. All of my pleadings and discovery questions are gone. Anyone who still has copies of them that I emailed, please email them back to me. I went out this weekend to buy a laptop.

 

If you no longer have my email address, please let me know.

 

Thanks,

 

BMC100

[Mantis Knight 19]

http://www.tigerdirect.com/applications/SearchTools/item-details.asp?EdpNo=3249952&csid=_61

 

USB to hard drive adapter.

 

Take HDD out of your old laptop and hook up to that and you should be able to attempt retrieval of files.

[maelyn5 8]

 Hi Everyone!  I am posting here to let everyone from Michigan know....if you follow the advice of bmc100...and really

 

take the time to learn all the laws and procedures.....YOU CAN WIN! This whole site is wonderful...with so many caring

 

and compassionate people. I, myself,  never posted my summons....to get help...I felt WAY TOO DUMB....I didn't know

 

the first thing to do....so I started reading and reading and reading until it finally started to sink in!   I had my pre trial

 

conference recently and it was dismissed without prejudice!  You will learn that it is much better to get it dismissed

 

WITH PREJUDICE....but this was my first "rodeo" and I really needed a break! They can try to sue me again....but

 

I feel confident and I will be ready----thanks to all the good folks here on this site! Hang in there! DO NOT QUIT!

 

Be smarter than me and actually posts your summons and complaint----many people will help you! I cannot begin

 

to express how thankful I am for the good people here!!!!!   The posting of bmc helped me sooo much because

 

he REALLY KNOWS Michigan law!!!!      You'd think he was an attorney!!!!    Totally AWESOME!!!

 

Thank you ever so much bmc!!