bmc100

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

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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! :speechless:  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!!!!! :twothumbsup:  The posting of bmc helped me sooo much because

 

he REALLY KNOWS Michigan law!!!!    xboxingx  You'd think he was an attorney!!!!   x:-) Totally AWESOME!!!

 

Thank you ever so much bmc!! xbeer2)

Good Job and Congratulations!!!!

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Hello. Can anyone tell me what proper procedure for a summary disposition hearing is? I'm being sued by Midland Funding in Shelby Township. I answered their summary disposition with good arguments from this sight. A case precedding mine was also a debt case with Midland Funding which the defendant had a lawyer who made the same arguments I made. The results were totally differant. The judge listened in the preceeding case and said he would review the info and make a judgement. In my case, he listened to my argument then, without commenting on my arguments, told me I was not a normal person because I didn't file a police report when I was served with the complaint. I had told the JDB that I didn't make the purchase and to please give me documaentation to prove it. This is where it gets wierd. I told the Judge that I didn't file a police report because it will not help me in this matter and I needed to deal with this lawsuit first. He then said "Well I can solve this with 2 questions." He then put me under oath and asked 1) do you own or have owned a Trailblazer? I answered yes. 2) then asked if I had bought tires from Discount tire to which I answered "I may have but I don't believe that I bought...."  The Judge stopped me and said "That is not what I asked" He then threatened me with 15 years for perjury and told me to answere yes or no. Is this proper for Summary Disposition? Why is he allowed to put me under oath and interogate me for the Plaintiff? I thought Summary Disposition is just arguements? Please help. I believe he granted a partial judgement but told the plaintiff to be ready at trial.

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Hello. Can anyone tell me what proper procedure for a summary disposition hearing is? I'm being sued by Midland Funding in Shelby Township. I answered their summary disposition with good arguments from this sight. A case precedding mine was also a debt case with Midland Funding which the defendant had a lawyer who made the same arguments I made. The results were totally differant. The judge listened in the preceeding case and said he would review the info and make a judgement. In my case, he listened to my argument then, without commenting on my arguments, told me I was not a normal person because I didn't file a police report when I was served with the complaint. I had told the JDB that I didn't make the purchase and to please give me documaentation to prove it. This is where it gets wierd. I told the Judge that I didn't file a police report because it will not help me in this matter and I needed to deal with this lawsuit first. He then said "Well I can solve this with 2 questions." He then put me under oath and asked 1) do you own or have owned a Trailblazer? I answered yes. 2) then asked if I had bought tires from Discount tire to which I answered "I may have but I don't believe that I bought...."  The Judge stopped me and said "That is not what I asked" He then threatened me with 15 years for perjury and told me to answere yes or no. Is this proper for Summary Disposition? Why is he allowed to put me under oath and interogate me for the Plaintiff? I thought Summary Disposition is just arguements? Please help. I believe he granted a partial judgement but told the plaintiff to be ready at trial.

You need to start your own thread.

 

--

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Go to the main forum "is there a lawyer in the house?" And the top right button it is black says "start a new topic" click on that.

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The Unifunds CCR Partners v. Riley case that I keep referring to in other threads...Riley is/was a CIC Member and his case now serves as a benchmark case to fighting bill of sales. I found the thread that Riley created in 2010 explaining how the Mich Court of Appeals came to the conclusion...It also gives reference to MCL 440.9406 (Notice of Assignment and authentication of assignment).

You will have to read it a few times for it to make sense...there is much more information than what is in the caselaw on google scholar.

http://www.creditinfocenter.com/community/topic/300255-i-won-unifund-ccr-partners/

Please look at thread #4, the affidavit of the JDB did not authenticate anything, since the affiant was not available for cross-examination to test the truth of the statements she made .

If you notice with the bill of sales, the JDBs take one paragraph out the puchase agreement and call it a bill of sale....Under MCL 440.9406, Unifund did not prove the chain of assignment from the assignor to the assignee, so the Mich COA could not termine with 100% certainity that the document is unadultered.

good read and it is actual caselaw!![/quote

Challenging everything and getting it on the record is imperative. ..

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Let's say you are served with a credit card suit and there is nothing attached to the complaint or they claim you breached the terms and conditions of the account, but the Plaintiff did not attach the terms to the complaint or explain why.

 

You can do one of three things:

 

1) Challenge Subject Matter Jurisdiction - Which needs to be raised with the first responsive pleading or motion

2) File a Motion for a More Definitive Statement - MCR 2.115(A) asking the court to have the Plaintiff amend their complaint to cllarify their causes of action and to attach documents they claim are in possession of.

3) File a Motion for Summary Judgment - MCR 2.118©(8) - Plaintiff failed to state a claim where relief can be granted. The court will only look at the Plaintiff's complaint.

 

If you challenge jurisdiction, you can raise three primary points:

 

1) Even though the court may have personal jursidiction over me, the court cannot conclude with out the agreement/contract that they have subject matter jurisdiction.

2) Without the agreement, the court cannot determine what state the agreement was signed in.

3) Without the agreement, the court cannot determine what state laws govern the contact and if there is an alternative dispute resolution method stipulated in the contract.

 

If you file a motion for a more definitive statement and the Plaintiff does not amend their complaint within 14 days, the court must dimiss the case. If the Plaintiff does amend their complaint and does not correct their mistakes, it makes your MSJ much more stronger.

 

If you file a MSJ up front, the court will most likely dismiss w/o prejudice and the Plaintiff can refile correcting their mistakes. To get it dismissed on a contract claim alone, you can use MCR 2.113(F)(1)(B) to your advantage.

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I have asked this before. If one has never created a thread to outline their case or have never posted a comment, please do not PM me for my help. I just got another PM from someone who has zero posts. I do not know who you are or if you are an attorney or a CA/OC/JDB. I will not respond to you.

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I won my first own lawsuit against a JDB & their junk lawyers thanks to bmc. Those who are being sued in mi should def read and listen to this man.

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This example is a primary reason why I have not been as active on here over the last few months in providing help. I see the same mistakes by new posters over and over again. Through posts and PMs, I and others have suggested and at times outright told these posters what they are doing is wrong. These range from not following civil procedure, properly formatting an answer, not creating an affidavit or counter-affidavit, failure to properly plead or list defenses or simply doing the exact opposite of what one has been told. 

 

All this after posters were given a step-by-step guide on their threads. 

 

I would rather save my time and energy. 

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I want to let this board know that I have started a new thread about my situation and I would like it if you could read it and start helping me out. I have started to read as much as I can in the 12 hours that I was aware of this problem. Any help is good help. The thread is "Calvary LLC in Michigan, help!"

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This is why you need to file an affidavit with your answer stating you have never received statements, made payments or agreed to amount due and owing. 

 

http://scholar.google.com/scholar_case?case=16651826698014653362&q=fisher+gravel&hl=en&as_sdt=4,23

 

Fisher Sand Gravel Company, MI Supreme Court (2013) under Account Stated:

 

The agreed statement serves in place of the original account, as the foundation of an action. It becomes an original demand, and amounts to an express promise to pay the actual sum stated. The creditor becomes entitled to recover the agreed balance, in an action based on the fact of the acknowledgement of the debtor, upon an adjustment of their respective claims. The effect of the operation is said to be much the same as though the debtor has given his note for the balance. 

 

The parties to an account stated need not expressly assent to a sum due, as there are instances when assent may be inferred from a parties inaction:

 

A party receiving an account and not objecting to it within a reasonable time, its correctness may be considered  as admitted by him, and the balance as the debt; or, in other words, that the party rendering the account may, under such circumstances, treat it as an account stated...If the party to whom the account is rendered, object within a reasonable time, there is no room for inferring an admission of its correctness. 

 

IN other words, if you do not create an affidavit denying the correctness of the sum they claim is due an owing, the Plaintiff will win...THE END!!!

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This is why you need to file an affidavit with your answer stating you have never received statements, made payments or agreed to amount due and owing. 

 

http://scholar.google.com/scholar_case?case=16651826698014653362&q=fisher+gravel&hl=en&as_sdt=4,23

 

Fisher Sand Gravel Company, MI Supreme Court (2013) under Account Stated:

 

The agreed statement serves in place of the original account, as the foundation of an action. It becomes an original demand, and amounts to an express promise to pay the actual sum stated. The creditor becomes entitled to recover the agreed balance, in an action based on the fact of the acknowledgement of the debtor, upon an adjustment of their respective claims. The effect of the operation is said to be much the same as though the debtor has given his note for the balance. 

 

The parties to an account stated need not expressly assent to a sum due, as there are instances when assent may be inferred from a parties inaction:

 

A party receiving an account and not objecting to it within a reasonable time, its correctness may be considered  as admitted by him, and the balance as the debt; or, in other words, that the party rendering the account may, under such circumstances, treat it as an account stated...If the party to whom the account is rendered, object within a reasonable time, there is no room for inferring an admission of its correctness. 

 

IN other words, if you do not create an affidavit denying the correctness of the sum they claim is due an owing, the Plaintiff will win...THE END!!!

 

Very interesting nugget in footnotes 55-56:

[55] See Locke v. Farley, 41 Mich. 405, 406, 1 N.W. 955 (1879) ("The action was brought on an account for goods alleged to have been sold and delivered to Locke by the defendants in error as a partnership under the name of Farley, Hawey & Co." A central issue to the case was whether the parties' affidavits met the requirements of 1871 CL 5954 — one of many predecessors of the modern-day burden-shifting statute, MCL 600.2145. The former statute applied to accounts stated and open accounts alike, as does the current statute); Snyder v. Patton & Gibson Co., 143 Mich. 350, 351, 106 N.W. 1106 (1906) ("The suit was brought to recover an unpaid balance upon an account for labor."); Star Steel Supply Co. v. White, 4 Mich.App. 178, 180, 144 N.W.2d 673 (1966) ("The plaintiff's suit is based on a statement of the open account with an affidavit of open account....").

[56] While a creditor may establish a prima facie case of indebtedness in an open account action by annexing both an affidavit of the amount due and a copy of the account to the complaint pursuant to MCL 600.2145, that action is not required to commence an open account action. A creditor may instead prove his or her account "in the ancient way" by offering testimony and other evidence demonstrating indebtednessMcHugh v. Butler, 39 Mich. 185, 186 (1878) ("Here the affidavit was made out of time, and when the plaintiff went to trial his situation was no better than it would have been if no affidavit had been made. He was required to prove his case in the ancient way."); see also Snyder, 143 Mich. at 351-352, 106 N.W. 1106.

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JDB attorneys are starting to use this case to show that when a Defendant does not dispute the balance via an affidavit, the Plaintiff is entitled to their award for damages. 

 

This is why it is paramount to create an affidavit stating:

 

1. I am unaware of Account # 1234567 with Plaintiff or Plaintiffs assignor as stated in the Plaintiff's complaint.

 

2. I have never received statements from the Plaintiff or Plaintiff's assignor as stated in the Plaintiff's complaint/affidavit.

 

3. I do not agree and dispute the amount the Plaintiff is claiming is due and owing in their complaint of $XXXX.xx

 

4. I am not in possession of the terms and conditions of the account as stated in the Plaintiff's complaint.

 

5. I have never entered into an agreement (if truth) with the Plaintiff or the Plaintiff's assignor. 

 

There are a couple more points to put forth in the affidavit as well. this is just a sample. These first 4 are staples that every Defendant should use as an affidavit or counter-affidavit.

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Nice.....haven't been here in awhile. Just wanted to say, people, listen to what what Bmc100  says...He is very good, he can, and likely will help, but he will not do all the work for you. Read, read again. Make sure you do your homework and you too can be successful. Just want to say Thanks again Bmc100 ;) 

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I won my case by reading the information on this forum.  

 

I didn't get it dismissed with prejudice, but without prejudice is still a win.

 

If you live in MI and are being sued by a JDB I'm here to testify that these methods work.  Just do your homework and you'll be fine.  

 

Thanks bmc100 and everyone else who contributed information!  I couldn't have done it without you guys!

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I won my case by reading the information on this forum.  

 

I didn't get it dismissed with prejudice, but without prejudice is still a win.

 

If you live in MI and are being sued by a JDB I'm here to testify that these methods work.  Just do your homework and you'll be fine.  

 

Thanks bmc100 and everyone else who contributed information!  I couldn't have done it without you guys!

:clapper: Congratulations!!!!  "Just do your homework"    Very good advice, @wendesdaughter.

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Consult with a Consumer Law Attorney to discuss this situation and see if this case applies in order to file a counter-claim.

 

In McDonald v. Asset Acceptance LLC, 2013 WL 4028947 (E.D. Mich. 2013), a group of plaintiffs filed a class action complaint arguing that a debt purchaser illegally attempted to collect post-charge off interest in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Specifically, Plaintiffs alleged that while the original agreement between the original creditors and the debtors allowed for the imposition of interest, the creditors waived the right to collect interest once the debts were charged-off. A credit account is characterized as “charged-off” when it is treated as a loss and the creditor receives a tax deduction under the Internal Revenue Code. See, Victoria J. Haneman, The Ethical Exploitation of the Unrepresented Consumer, 73 Mo. L. Rev. 707, 713-714 (2008). Because a debt purchaser, as an assignee, “stands in the shoes” of the original creditor when it attempts collect on accounts, Plaintiffs argued that the waiver of interest by the original creditors foreclosed the purchasers’ right to subsequently add interest.

 

The McDonald Court explained that the propriety of the debt purchasers’ imposition of interest depended on whether the original creditors waived the right to impose interest prior to sale. The original creditors testified that as a normal course and practice they ceased from charging post-charge off interest due to cost of continuing to assess the charges. The Court also noted that the contracts of sale between the debt purchaser and creditors excluded post charge-off interest from the definition of “current balance” or “unpaid balance” in the agreements. The court found that the original creditors “intended to waive the right to collect interest on Plaintiff’s accounts” by taking “decisive and unequivocal acts to forgo the imposition of interest for strategic business reasons.” McDonald, 2013 WL 4028947 at *10. Further, the Court decided that the purchaser had no legal right or ability to retract the waiver made by its predecessor in interest. The Court held that the practice constituted violations of § 1692f(1) and § 1692e(2) (A) of the FDCPA and certified a class of consumers subject to the illegal imposition of interest. Importantly, the Court also denied the purchaser the use of the bona fide error defense explaining that ignorance of the law does not afford a debt collector a defense under the FDCPA. Id. at *13.

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