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

[bmc100 236]

A new attorney's guide to answering a complaint in Michigan:

http://www.adkisonneed.com/Archive/Files/102620111458432011-06_OCBA_-_A_New_Attorney_s_Guide_to_Answering_a_Complaint.pdf

 

Aren't these steps the exact same things I outlined in the post? This paper puts it in a more systematical, easier to understand 5 page document.

[Brotherskeeper 873]

Aren't these steps the exact same things I outlined in the post? This paper puts it in a more systematical, easier to understand 5 page document.

 @bmc100

Yup. Hey, the author here has a law degree, years of experience, input from colleagues and several editors--plus an "endlessly" supportive wife! 

[bmc100 236]

FYI

 

http://dealbook.nytimes.com/2015/01/08/debt-buyer-faces-fine-and-loss-of-thousands-of-court-judgments/?hp&action=click&pgtype=Homepage&module=first-column-region&region=top-news&WT.nav=top-news&_r=0

[bmc100 236]

This is an example of how you do not defend yourself in a credit card lawsuit. FIA Card Services Vs. Ponte. What an idiot.

 

https://scholar.google.com/scholar_case?case=5539297243407898288&q=MCL+600.2145&hl=en&as_sdt=4,23&as_ylo=2014

 

I see people doing similar things on this site and even when told not to, they still do. 

[grace0919 19]

Michigan Courts Increase Requirements of Proof in Credit Card Cases March 04, 2010      |    

On February 18, 2010, the Michigan Court of Appeals released a decision that will have immediate impact upon our clients, particularly our credit card and debt buyer clients. The case involved increases in certain cases the level of proof necessary to obtain judgment in court. The case is Unifund CCR Partners v. Nishawn Riley, Michigan Court of Appeals Case No. 287599, Decided February 18, 2010. The court did not accept credit card monthly statements, showing payments made on the account, as proof of payments made on the account. The court now requires that in all credit card cases where a signed application is not available, that proof of payment, such as a copy of a payment check made to the credit card, is needed to prove that the debtor agreed to the account by making payments on same. The court is saying that copies of monthly statements showing payments is not sufficient. A copy of a payment check would be required, “as evidence that defendant made the asserted payments.”

For our debt buyer clients, there is now an increased level of proof of the assignment. The general contract, or batch assignment agreement, is no longer sufficient. A specific assignment, or affidavit supporting a specific assignment, should be supplied, that refers to the specific account number. Also, the court is requiring proof that the debtor was notified about the assignment. An affidavit from the original creditor regarding the specific assignment should be sufficient.

 

http://www.weltman.com/publications/client-advisories/?i=137&NH

[bmc100 236]

Grace, that case has already been discussed on this thread. There is newer case law out there.

[bmc100 236]

It is illegal for debt collectors to offer settlements when debts are outside the SOL. This comes from the 6th Circuit Court.

 

http://www.lexology.com/library/detail.aspx?g=077ad71b-fc74-4e43-b024-1937aaaf0451

[Newbie Need Help 3]

I need help please. I jus got a date for a hearing for summary judgement ANDjdb did NOT send my interrogatories back to me. Should I or can I ask for a dismissal at the summary judgement hearing? Also..will we still have the trial in a month? I also need to know what is a summary judgement and how do I prepare for it? I have 2 weeks.

[bmc100 236]

The Top 4 JDBs that sue in Michigan, though this is a piece from Arizona. Same principals apply.

 

http://www.jdsupra.com/legalnews/12-of-the-most-aggressive-junk-debt-buye-35914/

 

Here are some stats on lawsuits filed. 

 

http://dev.webrecon.com/debt-collection-litigation-cfpb-complaint-statistics-december-2014-and-year-in-review/

[JWSom 2]

Here is my original post; http://www.creditinfocenter.com/community/topic/326218-portfolio-recovery-served-me-papers-in-michigan/I have not filed my answers yet, but I was going to take @bmc100 advice and file a MTD because the only thing attached to the complaint was an affidavit from an employee JDB claiming business records "maintained in the ordinary course of business" is how they affirm that the complaint is valid and true.  Nothing from the bill of sale or any affidavit from the OC.  I just need some help with some case law to support my motion.  Any help would be great.  

[Madmarv0525 0]

I am being sued by portfolio recovery in michigan I filed my answer and need to know how to fill out my pre trial paperwork

[Brotherskeeper 873]

"Michigan Appellate Opinion Manual
By order of November 5, 2014, the Supreme Court rescinded Administrative Order 2006-3, which had set forth the Michigan Uniform System of Citation. The order refers the reader to the Michigan Appellate Opinion Manual, which sets forth the Court's current standards for citation of authority, quotation, and style in opinions of the Supreme Court and the Court of Appeals.
 
In the spirit of the original publication of the Uniform System of Citation, the Court offers the manual as an aid to practitioners in the preparation of documents for submission to the courts."

http://courts.mi.gov/Courts/MichiganSupremeCourt/Documents/MiAppOpManual.pdf

[bmc100 236]

Remember to file your own affidavit when submitting your answer to a complaint!!! VERY IMPORTANT!!

[Jwalls 0]

I am wondering if I should file a motion to dismiss. The Affidavit was signed more than 10 days prior to the summons request. Should this be my first step? Below is the summons I was served with on 12/31/16 at my residence. 

1_(1).pdf

[BV80 2,737]

23 minutes ago, Jwalls said:

I am wondering if I should file a motion to dismiss. The Affidavit was signed more than 10 days prior to the summons request. Should this be my first step? Below is the summons I was served with on 12/31/16 at my residence. 

1_(1).pdf

The 10-day requirement is in reference to when the complaint was filed, not when the summons was issued.

[bmc100 236]

This post is to briefly show when to use  MCR 2.116(C ) (5) - Lack of Standing. As I originally stated, which has not changed; Most JDBs attach the bill of sale, an account statement (In the case of Midland - It is a fake statement) and an affidavit from an employee of the JDB.

This makes it seem like the JDB has standing. The affidavit is nothing put hearsay within hearsay. If the JDB employee claims they have personal knowledge of the account....ask yourself how?

The ABC JDB originate the account, maintain records for the account or send out statements? The answer is no. The JDB employee claiming they have knowledge of how the records are maintained at the JDB does not qualify the person to meet the business records exemption under MRE 803(6).

I had to call my mortgage servicer today for they misapplied principal payments and credited my mortgage balance to correct it from an error back in 2013. Even the OC makes mistakes.

The most powerful way to attack standing is to attack it on the front end and crush the BS evidence the JDB's attorney uses.

I stated that instead of filing an answer, file the MSJ using civil rule to your advantage.

[bmc100 236]

Here is a great article written about the guidelines for filing an answer and raising affirmative defenses.

http://www.bsdd.com/sitefiles/7887/new-guidelines-on-to-draft-the-answer-and-affirmative-defenses.pdf

[bmc100 236]

When a JDB attaches the bill of sale to the complaint, read the bill of sale. It will state that the accounts sold to the JDB are listed in exhibit 1, if it is not redacted.  When they attach the redacted spreadsheet with just the account number on it and some basic information about the debtor, while redacting the file that it came from....that is not the same document the JDB would of received as part of the sale. It needs to be attacked as a document created for the sole purpose of litigation and it is hearsay.

[CandyCLC 17]

On 9/23/2017 at 8:05 AM, bmc100 said:

When a JDB attaches the bill of sale to the complaint, read the bill of sale. It will state that the accounts sold to the JDB are listed in exhibit 1, if it is not redacted.  When they attach the redacted spreadsheet with just the account number on it and some basic information about the debtor, while redacting the file that it came from....that is not the same document the JDB would of received as part of the sale. It needs to be attacked as a document created for the sole purpose of litigation and it is hearsay.

Hi, new here!! I was served yesterday (dinner time on a Friday, I am positive they planned that so I couldn't call the court) and aside from the fact I am not even sure they filed with the courthouse, there was absolutely nothing attached to the complaint, there wasn't anything on it saying breach of contract or anything just LVNV is an asignee for a debt owed to Credit One. I am going to start a new thread, wanted to call the court to make sure this is even legit because it looks like a straight up scare tactic. I am simply getting started and wondering what in the world can I do wen I don't even know who LVNV is, there is no bill of sale, no evidence. No card user agreement, nothing attached to the papers. I am within the SOL, the debt was late 2016, early 2017. I don't want to start a thread if this isn't a real lawsuit but I want to be proactive too.

[Harry Seaward 1,348]

3 minutes ago, CandyCLC said:

I don't want to start a thread if this isn't a real lawsuit but I want to be proactive too.

Go ahead and start a new thread.  LVNV is a debt buyer backed by Sherman Financial Group, LLC.  They have no incentive to play games.

[CandyCLC 17]

Ok will do, I am editing the documents I scanned as we speak so I can post them

[PRA_Foe 0]

My son (in Michigan) is being sued by Portfolio Recovery Associates.  Based on what I've read here, I think he has a good case (no pleading of assignment, no bill of sale...). I haven't actually seen the complaint yet, I'm going by what he described over the phone.

I encouraged him to fight it. He filed his answer today.  However, he didn't provide a reason for denying each of the allegations he denied.  Does that change how he should proceed? Can he still file an MTD (per #13 in BMC100's list of steps)?

Thanks

 

 

[Goody_Ouchless 501]

It might be best to start your own thread, so we can deal with particulars of your case. There are some boilerplate questions in the sticky section that should be answered so we know the details. 

Unfortunately things that worked in 2012, when this thread was created, don't work anymore. Contrary to the views of some folks living in the past, MI conforms to the Federal Rules of Evidence when it comes to adoptive business records, so expect PRA to provide affidavits that allow the admission of their evidence without the need for a "live witness."

You will also hear about using "arbitration," which has proven remarkably effective in making these case go away.

 

[Brotherskeeper 873]

@PRA_Foe Goody_Ouchless is right. To get the best help, please start your own thread, or have your son do so right away. We need more information and quickly. Did the complaint mention "account stated" or words to that effect? If so, your son needs to prepare an affidavit to send to PRA's attorney and file with the court. According to Michigan court rules, if your son filed his answer by the deadline to do so, he can submit an amended answer without the court's permission within 14 days. This means he can file an amended (corrected) answer to comply with the rules of pleading for the complaint's allegations. Do you know who the original creditor is? 

 

[bmc100 236]

@PRA_Foe    Please have your son look at this website. https://stopmidlandfunding.com/