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And so the fun begins. Got served a complaint about 10 days ago. Still have 11 to answer. Been lurking here while putting together my answer to the complaint. Now I need some guidance as to how to proceed. I have read all of the topics in regards to AA and Michigan I could find here and they are great. I am trying to decide the best game plan.

 

What I am thinking right now is to file a motion to dismiss in lieu of answer. This is intended to put them on notice I am going to fight. I would then file my answer with request for jury trial and counter-claim (still a work in progress). I will add it below, looking for any suggestions. Also would the counter-claims and request for jury trial send me out of district court to circuit or federal court?

 

1. Who is the named plaintiff in the suit?   Asset Acceptance, LLC.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) FULTON FRIEDMAN & GULLACE, LLP

3. How much are you being sued for? 3K and change

4. Who is the original creditor? (if not the Plaintiff) DELL FINANCIAL SERVICES / CIT ONLINE BANK

5. How do you know you are being sued? (You were served, right?) SERVED IN PERSON

6. How were you served? (Mail, In person, Notice on door) IN PERSON

7. Was the service legal as required by your state? YES

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Recieved notice from AA in July 2012 that they purchased account and demanded payment in full. Sent DV in July, 2012 by normal post (I know). No response from AA. Recieved letter from Fulton Friedman & Gullace LLC in October 2012. Sent DV in October (certified). Recieved response early December from FG&G listing very little information other than CO, OC, 4 digits of OC account number, open date, last payment date, claim balance, interest due, and states that "Additional documents relating to the reference account have been requested". Last contact was when I was served on 02/12/2013.

9. What state and county do you live in? Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Not sure if I ever did. They never gave me enough info to research. They claim last payment was 06/10/2009. Was opened on 04/20/2006

11. What is the SOL on the debt? To find out: 6 Years in Michigan

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Served. Have about 11 days remaining to answer summons and complaint.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Yes. Sent one to AA at first notice. Sent second when recieved

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
 

VERIFIED COMPLAINT

ACCOUNT STATED

 

NOW COMES the Plaintiff, ASSET ACCEPTANCE, LLC, by its attorney, and for its Complaint against the above named Defendant(s), states to this Honorable Court as follows:

 

  1. The Defendant(s) resides within this court’s venue and venue is proper in this court.
  2. The amount in controversy is within this courts jurisdiction.
  3. The Defendant(s) has an agreement for a/an INSTALLMENT LOAN, originally with DELL FINANCIAL SERVICES/CIT ONLINE BANK.
  4. The Defendant(s) has defaulted in payments on the above mentioned account, said account being shown in the Affidavit. See Exhibit “A” (Affidavit) and “B” (Statement of Account not previously sent to Defendant).
  5. ASSET ACCEPTANCE, LLC purchased the account shown in the attached Exhibits “A” and “B” and was assigned all rights to the account in the normal course of business.
  6. ASSET ACCEPTANCE, LLC has notified the Defendant(s) of the above mentioned account and the Defendant(s) has failed to pay for same.
  7. There is presently due and owing over and above all legal counter-claims the sum of $3,XXX.XX which includes interest at the statutory rate. See Exhibits “A” and “B”.
  8. ASSET ACCEPTANCE, LLC requests Judgment for $3,XXX.XX plus interest, costs, statutory attorney fees, pursuant to MCL 600.2441.

I declare under penalty of contempt of court that to the best of knowledge, information and belief that this is good ground to support the contents of this pleading.

 

FULTON, FRIEDMAN & GULLACE, LLP

 

THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT COLLECTOR. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

 


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
 


 

EXHIBIT “A”

 

STATE OF MICHIGAN       )

                                                ) ss.

COUNTY OF MACOMB     )

 

 

 

AFFIDAVIT OF ACCOUNT

 

  1. I am an employee of ASSET ACCEPTANCE, LLC (“Plaintiff”), a DELWARE LIMITED LIABILITY COMPANY, and am competent to testify to the facts set forth in this affidavit.
  2. I am familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and maintains its business records pertaining to this account. These records are kept in the regular course of business and were created at or near the time of the event. To the best of my knowledge and belief and upon review of the records in my possession, [DEFENDANTS NAME] (“Defendant”) established an account with DELL FINANCIAL SERVICES / CIT ONLINE BANK herein under account number XXXXXXXXXXXXXXX-0025.
  3. That after establishing said account, Defendant(s) incurred charges and/or fees and/or interest upon said account.
  4. Defendant(s) defaulted on their payment obligations with regard to said account.
  5. Upon information and belief, Plaintiff’s predecessor(s)-in-interest performed all of the conditions of the contract required by said contract.
  6. Thereafter, Plaintiff purchased said account for value and is now the owner of said account.
  7. That as a result of Defendant(s) payment default, the Defendant(s) named herein is/are justly indebted to the Plaintiff in the amount of $3,XXX.XX together with interest at the statutory rate.

 

Signed: GINA VINCI

 

Notorized Dated 2nd November 2012.

 


==============================

EXHIBIT "B"

 

AA Logo/Letterhead                             Their account number 12-XXXXXX

 

Original Creditor Account Number  XXXXXXXXXXXXXXX-XX-0025

 

My Name

My Address

City, State, Zip

 

 

Date                              Account Information

November 2.2012         ASSET ACCEPTANCE LLC, A LIMITED LIABILITY COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELEWARE. ASSIGNEE OF DELL FINANCIAL SERVICES/CIT ONLINE BANK

 

 

Purchase Date: 06/xx/2012

Charge off balance: $3,XXX.XX

Statutory interest rate: 5%

Date of last payment: 6/9/2009

 

This is a communication from a debt collector

 

* Not previously mailed.

 

 

====================================================

If you are inquiring about a the best way to sue someone, you need to answer the following questions (as much as possible):

1. Who are you suing? ASSET ACCEPTANCE

2. How old is the debt? Opened 4/2006. Last payment reported 6/2009

3. If the person harrassing you about the debt is a collection agency, Is the debt being reported on your credit report? YES


4. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) This means you wrote or called Experian, Equifax and TransUnion.  NO

5. Has the collection agency sent you a letter, called you on the phone? How did you learn about the collection? Recieved notice from AA in July 2012 that they purchased account and demanded payment in full. Sent DV in July, 2012 by normal post (I know). No response from AA. Recieved letter from Fulton Friedman & Gullace LLC in October 2012. Sent DV in October (certified). Recieved response early December from FG&G listing very little information other than CO, OC, 4 digits of OC account number, open date, last payment date, claim balance, interest due, and states that "Additional documents relating to the reference account have been requested". Last contact was when I was served on 02/12/2013.


6. What state are you in? MICHIGAN

7. What kind of debt is this? (credit car, auto loan, student loan). AA Claims it to be an INSTALLMENT LOAN which I think means it is an Open Account.

8. What kind of violations do you THINK the collection agency has committed? What section of the FDCPA do you think has been violated...

Still researching this. Will be posting my answer to the complaint shortly which will have this listed. Also trying to see how to tie this against their consent decree with the Feds.
 

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This is what I have for the motion to dismiss so far. I would like to beef it up though. Any suggestions. Should I keep it simple like this or maybe try to angle in the Consent Decree they are violating by brining this complaint before completing verification? Thoughts?:

 

MOTION FOR DISMISSAL


COMES NOW DEFENDANT, Sui Juris, by special visitation, who is unschooled in law and asks the court to take Judicial Notice of the enunciation of principles as stated in Haines v. Kerner, 404 U.S. 519, wherein the court has directed that those who are unschooled in law making pleadings and/or complaints shall have the court look to the substance of the pleadings rather than the form, and also hereby makes the attached Affidavit, including the related-thereto documents, the “Response” in the above referenced case.

LEGAL STANDARDS

 

Pursuant to MCR 2.116©(8) The parties lack the standing to bring suit:

A motion under MCR 2.116©(8) tests the legal sufficiency of the complaint. All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. Wade v. Dep't of Corrections, 439 Mich. 158, 162, 483 N.W.2d 26 (1992). A motion under MCR 2.116©(8) may be granted only where the claims alleged are "so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Id. at 163, 483 N.W.2d 26. When deciding a motion brought under this section, a court considers only the pleadings. MCR 2.116(G)(5).

 

Pursuant to MCL 600.2145 Open account or account stated; proof, counterclaim. The plaintiff fails to prove.

STATEMENT OF FACTS
 

  1. Plaintiff has failed to state a claim for which relief can be granted, as plaintiff has not provided sufficient proof to make claims as "assignee", and as such has no standing to bring suit.

 

  1. Original complaint made by plaintiff fails to plead an assignment of debt:

 

Pursuant to Masterspark Co v Hickerson, 211 Mich 411, 415; 179 NW 232 (1920), and McKnight v Lowitz, 176 Mich 452, 453; 142 NW 769 (1913), an assignee must plead the assignment of the debt from the assignor within its complaint in order to establish that it is the real party in interest sufficient to support a cause of action.

 

  1. Affidavit (EXHIBIT “A”) of original complaint made by plaintiff was made more than 10 days prior to the filing of said complaint:

 

Pursuant to de novo. Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337, 572 NW2d 201 (1998) The affidavit presented in this case at bar was made more than ten days before the complaint was filed, and therefore was improperly considered by the trial court as prima facie evidence of indebtness. The plain language of MCL 600.2145 prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit.

 

  1. Affidavit (EXHIBIT “A”) of original complaint made by plaintiff is vague and non-specific, no particular account number, or agreed balance is referenced. Also in the affidavit Gina Vinci states she had access to the books and records, but does not state personal knowledge nor could she have personal knowledge of what occured with the alleged original account. She cannot clearly state that the amounts sold are 100% accurate.


CONCLUSION

Plaintiff has failed to state a claim for which relief can be granted cited by the above reasons and examples.

REMEDY SOUGHT

This Court’s determination that the Plaintiff has not properly stated a claim for which relief can be granted, and as such defendant moves that this case be dismissed with prejudice, all requested amounts to Plaintiff be denied and Plaintiff delete  items placed by plaintiff on defendants credit reports with each of the credit reporting agencies.

Prepared and submitted

by:________________________________

 NAME,
Dated: ______________________

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And here is my answer so far. Still a work in progress....

 

Verified Answer to Complaint

Pro Se

Defendant demands jury trial.

 

Defendant, appearing pro se, for its reply to the Complaint of ASSET ACCEPTANCE, LLC (hereafter "Plaintiff") states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

 

  1. Defendant admits he resides within this courts venue and venue is proper in this court. If Defendant’s counterclaims are determined to not be proper in this venue, Defendant reserves the right to amend this Answer to complaint and remove such counterclaims and file them separately in a proper venue.

 

  1. Defendant admits the amount in controversy is within this court’s jurisdiction.

 

  1. 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. Plaintiff’s claim is hearsay.

 

  1. Plaintiff does not show proof of an alleged “INSTALLMENT LOAN” between Defendant and DELL FINANCIAL SERVICES / CIT ONLINE BANK on which to stand.

 

  1. 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.

 

  1. Plaintiff’s statement, Exhibit “A” (Affidavit) and “B” (Statement of account not previously sent to Defendant is hearsay. Plaintiff does not show proof of Defendants default to DELL FINANCIAL SERVICES/ CIT ONLINE BANK.  Exhibit “A” and Exhibit “B” are not proof of said allegation.

 

  1. Exhibit “A” (Affidavit) of original complaint made by plaintiff was made more than 10 days prior to the filing of said complaint:

 

Pursuant to de novo.. Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337, 572 NW2d 201 (1998) The affidavit presented in this case at bar was made more than ten days before the complaint was filed, and therefore was improperly considered by the trial court as prima facie

evidence of indebtness. The plain language of MCL 600.2145 prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit.

 

  1. Exhibit “A” (Affidavit)  of original complaint made by plaintiff is Hearsay.
    1. Said Affidavit and items 3 and 4 of the complaint make reference to an account the Plaintiff could have no firsthand knowledge of. Only the alleged original creditor DELL FINANCIAL SERVICES /CIT ONLINE BANK could attest to the validity of these statements.

 

  1. Exhibit “A” (Affidavit)  of original complaint, items 1,2 attest that GINA VINCI is an employee of ASSET ACCEPTANCE, is competent to testify on behalf of plaintiff. GINA VINCI testifies that Defendant established an account with DELL FINANCIAL SERVICES. GINA VINCI could not possibly be familiar or have firsthand knowledge of when/if an alleged agreement between defendant and DELL FINANCIAL SERVICES / CIT ONLINE BANK occurred.

 

  1. Exhibit “A” (Affidavit) of original complaint, items 3,4 and 5 attest that GINA VINCI has firsthand knowledge that only DELL FINANCIAL SERVICES /CIT ONLINE BANK would have.

 

  1. Exhibit “A” (Affidavit)  of original complaint, item 6 attests that Plaintiff purchased said account for value and is now owner of the account. Plaintiff fails to produce any said document(s) to support Plaintiffs claim nor does plaintiff produce proof of what said value was to establish ownership of said account.

 

  1. Exhibit “A” (Affidavit)  of original complaint, item 7 stands on items 1 through 6 of the affidavit which are hearsay and no proofs are attached in support of the claims. 

 

  1. Attached Exhibit “B” of original complaint (Statement of Account not previously sent to Defendant). By Plaintiff’s own admission was not previously sent to defendant and thus is a document electronically generated for purposes of this complaint and is not supported by a valid attached affidavit which makes reference to said document.

 

  1. Exhibit “A” (Affidavit) does not make reference to EXHIBIT “B” and thus EXHIBIT “B” has no affidavit to support the claim.

 

MCL 600.2146 states “Other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight but not its admissibility.”

 

  1. Statement of Account (EXHIBIT “B”) is not clear as to when the statement was generated. Plaintiff claims in Affidavit (EXHIBIT “A”) that an event occurred but does not explain what said event was or when it occurred. In reference to Paragraph 4 the Statement of Account (EXHIBIT “B”) does not support the claim made.

 

MCL 600.2146 states that “A writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum of an act, transaction, occurrence, or event is admissible in evidence in a proceeding in a court or before an officer, arbitrator, or referee in proof of the act, transaction, occurrence, or event if it was made in the regular course of business and it was the regular course of business to make such a memorandum at the time of, or within a reasonable time after, the act, transaction, occurrence, or event.

 

  1. 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.

 

  1. Plaintiff has failed to state a claim for which relief can be granted, as plaintiff has not provided proof to make claims as "assignee", and as such has no standing to bring suit.

 

In Westin v. Dowty, 163 Mich App. 238, 242, 414 NW2d 165(1987), this court opinioned “there must be a perfected transaction between the parties which is intended to vest in the assignee a present right in the thing assigned.”

 

  1. Plaintiff seeking to collect a debt based upon an assignment has the burden of proof to show that the assignment is valid.

 

Pursuant to Palisades Collection, LLC v Taylor, Hudson & Keyse, LLC v Gregory, Consolidated Nos 08-684-CZ, 08-1012-CK-3 Saginaw County Circuit Court (2008), (holding that Assignee plaintiff must present competent, admissible evidence sufficient to convince a reasonable fact finder by a preponderance of the evidence; See also Weston v Card, 96 Mich 373, 377-378; 56 NW 26 (l893).

 

  1. Plaintiff provides no proof of purchase of the account other than stated Exhibit “A” (Affidavit) which is hearsay.

 

  1. Defendant demands Plaintiff provide the original written contract/purchase agreement and all referenced material of said contract/purchase agreement upon which the sale is based that also shows that the alleged account was included.

 

  1. 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.
    1. See attached Exhibit “C” (Defendants Affidavit).

 

  1. Defendant denies the amount owed of $3,XXX.XX. See attached Exhibit “C” (Defendants Affidavit)

 

  1. Defendant denies debt to ASSET ACCEPTANCE and that Plaintiff has not proven its complaint. Defendant requests Dismissal with Prejudice.

 

AFFIRMATIVE DEFENSES

  1. Defendant restates defenses listed in paragraphs 1 through 8 above.

 

  1. As and for a First Defense
    Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

 

  1. As and for a Second Defense
    Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

 

  1. As and for a Third Defense
    Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. the purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

 

  1. As and for a Fourth Defense
    Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

 

  1. As and for a Fifth Defense
    Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

 

  1. As and for an Sixth Defense
    Plaintiff’s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

 

  1. As and for a Seventh Defense
    Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

 

  1. As and for a Eighth Defense
    Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

 

  1. As and for an Ninth Defense
    The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

 

  1. As and for a Tenth Defense
    Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

 

  1. As and for a Eleventh Defense
    Plaintiff's alleged damages are limited to real or actual damages only.

 

  1. As and for a Twelfth Defense
    Defendant invokes the doctrines of Scienti et volenti non fit injuria (a person who knowledgeably consents to legal wrong has no legal right) and Damnum absque injuria (harm without injury).

 

  1. As and for a Thirteenth Defense
    Since a court will not grant a judgment or other legal relief to a party who has not acted fairly by having made false representations or concealing material facts from the other party, we maintain that equitable estoppel bar plaintiff’s claims.

 

  1. As and for a Fourteenth Defense
    Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

 

 

COUNTERCLAIMS

 

COMPLAINT I

 

  1. Defendant resides in Macomb County, Michigan and is a consumer as that term is defined by the Fair Debt Collection Practices Act 15 USC 1692 et seq ( “FDCPA”)

 

  1. Upon information and belief, ASSET ACCEPTANCE, LLC. is a foreign limited liability Company authorized to do business in Michigan; that ASSET ACCEPTANCE’s principal business is the collection of debts from others; that ASSET ACCEPTANCE regularly collects debts; that ASSET ACCEPTANCE uses the instruments of interstate commerce and the mail to collect debts.

 

  1. ASSET ACCEPTANCE and its agent FULTON FRIEDMAN & GULLACE, LLP are “debt collectors” as the term is defined by the FDCPA.

 

  1. The alleged open account is a “debt” as that term is defined by the FDCPA, that the alleged account was meant to be used primarily for personal, family, or household purposes

 

  1. On or about July, 2012 ASSET ACCEPTANCE sent defendant a letter demanding he pay ASSET ACCEPTANCE.

 

  1. In response thereto, defendant sent ASSET ACCEPTANCE a letter on or about July, 2012 which, wherein he disputed the debt and asked ASSET ACCEPTANCE to provide validation, per 15 USC 1692g.

 

  1. ASSET ACCEPTANCE never responded to the Defendant’s letter.

 

  1. On or about October, 2012 Defendant received a letter from FULTON FRIEDMAN & GULLACE, LLP stating that ASSET ACCEPTANCE had referred the alleged account to them for collection.

 

  1. In response thereto, defendant sent FULTON FRIEDMAN & GULLACE / ASSET ACCEPTANCE a letter on or about October, 2012 which wherein the debt was disputed and asked FULTON FRIEDMAN & GULLACE / ASSET ACCEPTANCE to provide validation, per 15 USC 1692g.

 

  1. On or about December, 2012 FULTON FRIEDMAN & GULLACE sent defendant a letter stating “documents relating to the referenced account have been requested, and will be forwarded to you upon receipt in the office”. By this admission, FULTON FRIEDMAN & GULLACE did not have the proper documentation to properly validate the alleged debt.

 

  1. To date, neither ASSET ACCEPTANCE or FULTON FRIEDMAN & GULLACE has sent defendant the documents for validation nor have they provided the contact address of the original creditor nor the original account number in full of the alleged debt.

 

  1. ASSET ACCEPTANCE‘s act to bring this action without validating the debt was intentional and, on information and belief, persistent and frequent.

 

  1. ASSET ACCEPTANCE has violated the FDCPA by bringing this action before validating the debt, and defendant is injured thereby.

 

COMPLAINT II

 

  1. Defendant restates paragraphs 10-22.

 

  1. ASSET ACCEPTANCE entered into a Consent Decree with the United States of America (EXHIBIT “XX”)

 

  1. In addition to a monetary settlement, the Decree (EXHIBIT “XX”) Section “III. DUTY TO CONDUCT A REASONABLE INVESTIGATION” of the Consent Decree mentioned in paragraph 25 states:

 

  1. In each instance in which a consumer, at any time, questions, disputes, or challenges the accuracy or completeness of the information:

 

  1. Close the account, permanently terminate collection efforts with respect to the specific debt, and request deletion of that item of information from the consumer’s credit reporting file, or

 

  1. Report that item of information as disputed to any consumer reporting agency to which the information was previously reported and conduct and complete a reasonable investigation into the accuracy or completeness of such information.

 

  1. If ASSET ACCEPTANCE does not substantiate that the consumer owes the debt following a reasonable investigation, ASSET ACCEPTANCE shall close the account, permanently terminate collection efforts with respect to the specific debt, and request deletion of that item of information from the consumer’s credit reporting file.

 

  1. If ASSET ACCEPTANCE does not complete its reasonable investigation within thirty(30) days from receipt of the dispute, ASSET ACCEPTANCE shall request deletion of that item from the consumer’s credit reporting file and cease collection activities until the reasonable investigation is complete.

 

  1. Defendant disputed the plaintiff’s claims on two occasions as stated in paragraphs 15 and 18 above.

 

  1. In the first instance plaintiff never completed an investigation, nor did plaintiff follow the directives of the consent decree (EXHIBIT “XX”) as stated in paragraph 25.

 

  1. In the second instance plaintiff did respond by letter. The letter stated “Additional documents relating to the referenced account have been requested, and will be forwarded to you upon receipt in the office.”

 

  1. To date Plaintiff has not sent any additional documentation to Defendant nor has Plaintiff stated that the verification has been completed.

 

  1. To date Plaintiff has not provided the address of the original creditor or the complete account number of the originally alleged account.

 

  1. By Plaintiff’s own admission in EXHIBIT “X” the verification of the debt has not been completed.

 

  1. Plaintiff has failed to follow the consent decree by not deleting the item in the complaint from the defendant’s credit reporting file.

 

  1. Plaintiff has failed to follow the consent decree by not ceasing collection activities until the investigation is complete. Plaintiff bringing this complaint to court is proof of this.

 

  1. Plaintiff by not removing the item from defendant’s credit reporting file and continuing collection activities defendant is injured thereby.

 

CONCLUSION

  1. WHEREFORE, the defendant asks the Court for judgment:
    1. dismissing the complaint herein,
    2. in favor of the defendant on the counterclaims:
    3. ordering Plaintiff to permanently cease all collection activities on this item,
    4. ordering Plaintiff to delete item from defendant’s credit reporting file,
    5. for actual damages,
    6. for punitive damages,
    7. for statutory damages in an amount up to $1000 per 15 USC 1692k,
    8. for reasonable attorney’s fees, per 15 USC 1692k,
    9. costs and disbursements of this action,
    10. such other and different relief as the Court finds proper.

 

I declare under penalty of contempt of court that to the best of my knowledge, information and belief that this is good ground to support the contents of this Answer to the complaint.

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Here is my Affidavit to the complaint. I like it but also like a different one I found here as well. Thoughts?

 

AFFIDAVIT OF DEFENDANT

 

  1. Defendant denies having an agreement with Asset Acceptance.

 

  1. Defendant denies a balance owed of $3,XXX.XX to Asset Acceptance.

 

  1. Defendant is unable to research Plaintiff’s claims in regards to the alleged original creditor DELL FINANCIAL SERVICES /CIT ONLINE BANK as Plaintiff has not provided sufficient information including but not limited to the full account number of the original account, the agreement on which such account was created or any other facts.

 

  1. Defendant received a letter from Asset Acceptance claiming this alleged debt in July 2012.

 

  1. Defendant sent a letter Exhibit “D” by post to Asset Acceptance in July 2012 disputing Plaintiffs claims and requesting verification of the debt. Defendant never received a response to Exhibit “D” from Asset Acceptance.

 

  1. In October 2012, Defendant received a letter from Fulton Friedman & Gullace, LLP representing ASSET ACCEPTANCE. See attached Exhibit “E”

 

  1. Defendant sent a letter Exhibit “F” by certified mail to Fulton Friedman & Gullace, LLP disputing the debt and requesting verification of the debt on October 27th, 2012.

 

  1. In early December, Defendant received a letter from Fulton Friedman & Gullace, LLP Exhibit “G” dated November 1st 2012. In said letter it states “Additional documents relating to the referenced account have been requested, and will be forwarded to you upon receipt in the office”.

 

  1. Defendant denies having received requested documents to verify the alleged debt and Plaintiff has had more than 180 days to produce from original request and 90 days to produce from second request.

 

  1. Defendant denies ever having opened an account, created an agreement or received goods or services with Plaintiff to establish an amount owed to Plaintiff.

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Anyone want to comment? Upsman40, BMC100? I think I am on the right track. Just would appreciate a review to see if I am missing anything or need to tweek anything before I turn in my answer to the complaint this week.

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A couple of things that jump out at me:

 

You state in your answer that plaintiff never plead assignment; they did in paragraph 5 of their complaint. They just didn't back it up with any documentation.

 

Your answer does not comply with MCR 2.111 © & (D). Read (E) also.

Some of your answers don't admit or deny. They just argue plaintiff's allegation.

Some denials don't "state the substance of the matters on which the pleader will rely to support the denial" (remember that the "lack of knowledge" form of response acts as a form of denial).

 

 

You've gone way overboard with affirmative defenses. Affirmative defenses are yours to prove if called on to prove them.  MCR 2.111(F)(3) outlines which affirmative defenses you may use. Most of the more knowledgeable posters on this board will recommend that you not use affirmative defenses unless you know what they mean and are applicable to your situation (i.e. statute of limitations).

 

You might want to read through BMC100's post on Being sued in Michigan; it has some very good information.

Just don't post in it .......... keep your own thread going here.

 

 

edit: tried to get rid of the copyright symbol that this boards code interprets when you type "parenthesis C parenthesis" to no avail.  This 'feature' should be looked into ....... it's very annoying.

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You completely misread my thread. AA supplied enough evidence against you to create a Prima Facie case against you. Trying to file a motion to dismiss would be futile right now.

 

Next, you cannot file both a MTD and answer.

 

Last, your answer does not comply with cour rules. Your defenses are not defenses, as Savior stated, they are arguments. You do not make arguments in an answer.

 

Start with creating an answer and affidavit to their complaint.

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I agree with Savoir, the affirmative defenses have to go if you even use your answer. None of them apply. Just take our word for it, we can't take the time to argue 14 bad defenses. First thing that jumped out at me was the fact that this is Citbank for a small amount through Asset. I beleive Citibank has JAMS in their agreements for private arbitration. I would suggest filing a motion to compel arbitration through the credit card agreement. This can cost up to 40,000 and Asset has to pay for it. They have about 60 bucks invested in your account, obviously they won't pay for arb, they'll dismiss the case.

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Thanks savior, bmc and bruno. I appreciate the feedback and value all of your input. I will pull the affirmative defenses and redo my answers.

 

BMC100, I really appreciate the reply, I did misunderstand you in your post. So I will simply just answer the questions 1-8 Deny or 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.

 

So as for what I placed as arguments do I put these in my affidavit then? Focusing on standing and breach of contract proof, correct? as AA has not proven these points.

 

Thanks again, all of your posts have been very helpful. I knew I was going overboard just need some help to pull me back and put me on the right track.

Bruno I will research the arb route a bit more. My only problem is it is not CITI bank but it was a Dell Preferred account backed by CIT Bank which went bankrupt in 2009 and I have no contract I can find or statements to match this account so am not sure what the arb options are (let alone if this is even my account).

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And so the fun begins. Got served a complaint about 10 days ago. Still have 11 to answer. Been lurking here while putting together my answer to the complaint. Now I need some guidance as to how to proceed. I have read all of the topics in regards to AA and Michigan I could find here and they are great. I am trying to decide the best game plan.

 

What I am thinking right now is to file a motion to dismiss in lieu of answer. This is intended to put them on notice I am going to fight. I would then file my answer with request for jury trial and counter-claim (still a work in progress). I will add it below, looking for any suggestions. Also would the counter-claims and request for jury trial send me out of district court to circuit or federal court?

 

 

Here is how I would answer the summons, lets see how the forum beats this up a bit, I believe if you look at my post from my case you will see my affirmative defenses I sent along, as well as my Interroggs.  Some excellent suggestions were made by Brunno, ladyhunter, BV80, and of course bcm100 to brush  them up a bit. Remember i sent all of this before i found this forum, this got me to pre trial where the judge demanded Asset produce the underlaying contract, they did not and it was dismissed with prejudice....

 

 

NOW COMES the Plaintiff, ASSET ACCEPTANCE, LLC, by its attorney, and for its Complaint against the above named Defendant(s), states to this Honorable Court as follows:

 

  1. The Defendant(s) resides within this court’s venue and venue is proper in this court.

Defendant can neither confim nor deny as defendant is not versed in law and jurisdiction.  Defendant will hold Plaintiff is well versed in law and is familiar with venue proper.

  1. The amount in controversy is within this courts jurisdiction.

Defednent can neither confirm or deny this holds true.  Same answer as pertained to 1 above.

  1. The Defendant(s) has an agreement for a/an INSTALLMENT LOAN, originally with DELL FINANCIAL SERVICES/CIT ONLINE BANK.

DENY in part, I have been presented   no evidence that the alleged account with OC is the defendants account or debt alleged in this complaint.  Plaintiff has provided no proof.  Expressly, Exhibits A and B provided by the plaintiff amount to nothing more than documents on their letter head.

  1. The Defendant(s) has defaulted in payments on the above mentioned account, said account being shown in the Affidavit. See Exhibit “A” (Affidavit) and “B” (Statement of Account not previously sent to Defendant).

Deny plaintiff has not provided or proven any information as to regards of their “purchasing” alleged debt for alleged collection.  Nor has the plaintiff provided any information from the original creditor to prove this is the defendants account and/or it was defaulted on.

  1. ASSET ACCEPTANCE, LLC purchased the account shown in the attached Exhibits “A” and “B” and was assigned all rights to the account in the normal course of business.
  1. Deny.  Defendant has no knowledge or information sufficient to form an opinion as to the truth and accuracy of alleged assignments or entitlements of plaintiff’s actions or business they allegedly conduct.  Exhibits “A” and “B” show nothing to confirm from alleged original creditor of this statement being true, specifficaly exhibits "A" and "B" show no specific account being attached to alledge Bill of Sale and Assignment and Plaintiff in no way can show they have personal knowledge of business records keeping by alleged OC

 

  1. ASSET ACCEPTANCE, LLC has notified the Defendant(s) of the above mentioned account and the Defendant(s) has failed to pay for same.

Deny, defendant requested DV from Palintiff in Jul y of 2012 with no response from the Plaintiff.  Received a letter from the legal cousel for ASSet in October that documents would be forwarded.  As of this date nothing has been received from Plaintiff, to show alleged account belongs to the defendant.  No admissable evidence has been submitting showing legal assignment of allged debt as well.  defendeant holds the plaintiff to the strictest proof here of.

  1. There is presently due and owing over and above all legal counter-claims the sum of $3,XXX.XX which includes interest at the statutory rate. See Exhibits “A” and “B”.
  1. Defendant denies any alleged obligation to Plaintiff in Paragraph 6, as there is not, nor has there ever been any agreement, written, oral or implied between the Plaintiff and Defendant.

 

  1. ASSET ACCEPTANCE, LLC requests Judgment for $3,XXX.XX plus interest, costs, statutory attorney fees, pursuant to MCL 600.2441.
  1. Deny I have no contract or relationship, or have I entered into any agreement pursuant to the allegations of the plaintiff. 

 

I declare under penalty of contempt of court that to the best of knowledge, information and belief that this is good ground to support the contents of this pleading.

 

FULTON, FRIEDMAN & GULLACE, LLP

 

THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT COLLECTOR. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

 

EXHIBIT “A”

 

STATE OF MICHIGAN       )

                                                ) ss.

COUNTY OF MACOMB     )

 

 

 

AFFIDAVIT OF ACCOUNT

 

  1. I am an employee of ASSET ACCEPTANCE, LLC (“Plaintiff”), a DELWARE LIMITED LIABILITY COMPANY, and am competent to testify to the facts set forth in this affidavit.
  2. I am familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and maintains its business records pertaining to this account. These records are kept in the regular course of business and were created at or near the time of the event. To the best of my knowledge and belief and upon review of the records in my possession, [DEFENDANTS NAME] (“Defendant”) established an account with DELL FINANCIAL SERVICES / CIT ONLINE BANK herein under account number XXXXXXXXXXXXXXX-0025.
  3. That after establishing said account, Defendant(s) incurred charges and/or fees and/or interest upon said account.
  4. Defendant(s) defaulted on their payment obligations with regard to said account.
  5. Upon information and belief, Plaintiff’s predecessor(s)-in-interest performed all of the conditions of the contract required by said contract.
  6. Thereafter, Plaintiff purchased said account for value and is now the owner of said account.
  7. That as a result of Defendant(s) payment default, the Defendant(s) named herein is/are justly indebted to the Plaintiff in the amount of $3,XXX.XX together with interest at the statutory rate.

 

Signed: GINA VINCI

 

Notorized Dated 2nd November 2012.

 

==============================

EXHIBIT "B"

 

AA Logo/Letterhead                             Their account number 12-XXXXXX

 

Original Creditor Account Number  XXXXXXXXXXXXXXX-XX-0025

 

My Name

My Address

City, State, Zip

 

 

Date                              Account Information

November 2.2012         ASSET ACCEPTANCE LLC, A LIMITED LIABILITY COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELEWARE. ASSIGNEE OF DELL FINANCIAL SERVICES/CIT ONLINE BANK

 

 

Purchase Date: 06/xx/2012

Charge off balance: $3,XXX.XX

Statutory interest rate: 5%

Date of last payment: 6/9/2009

 

This is a communication from a debt collector

 

* Not previously mailed.

 

 

====================================================

If you are inquiring about a the best way to sue someone, you need to answer the following questions (as much as possible):

1. Who are you suing? ASSET ACCEPTANCE

2. How old is the debt? Opened 4/2006. Last payment reported 6/2009

3. If the person harrassing you about the debt is a collection agency, Is the debt being reported on your credit report? YES

4. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) This means you wrote or called Experian, Equifax and TransUnion.  NO

5. Has the collection agency sent you a letter, called you on the phone? How did you learn about the collection? Recieved notice from AA in July 2012 that they purchased account and demanded payment in full. Sent DV in July, 2012 by normal post (I know). No response from AA. Recieved letter from Fulton Friedman & Gullace LLC in October 2012. Sent DV in October (certified). Recieved response early December from FG&G listing very little information other than CO, OC, 4 digits of OC account number, open date, last payment date, claim balance, interest due, and states that "Additional documents relating to the reference account have been requested". Last contact was when I was served on 02/12/2013.

6. What state are you in? MICHIGAN

7. What kind of debt is this? (credit car, auto loan, student loan). AA Claims it to be an INSTALLMENT LOAN which I think means it is an Open Account.

8. What kind of violations do you THINK the collection agency has committed? What section of the FDCPA do you think has been violated...

Still researching this. Will be posting my answer to the complaint shortly which will have this listed. Also trying to see how to tie this against their consent decree with the Feds.

 

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Thanks so much, Upsman! So to clarify. You sent your interroggs before the pretrial but after you submitted your answer? I thought the intereroggs occur after the pre-trial. Just trying to understand this whole thing.

 

Thanks, I will repost my answer for review after I finish revising/rescraping it. :)  Hopefully late tonight or early tomorrow. 

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If it were me, instead of hoping for fairness in a Michigan court and considering that you are facing a JDB - I would elect arbitration via JAMS "now" and get out of court.

 

In this Dell/Cit preferred agreement linked below, it states that you would only have to pay $125 to initiate in JAMS with the JDB paying all the rest of the fees to the extent that such fees exceed the amount of filing fees in your hometown court . . . and my goodness, would they ever exceed those fees! 

 

They would also have to pay their own attorney fees, witness fees, etc.

 

Here's an agreement - https://dl.dropbox.com/u/98854297/Cit%20Bank%20Dell.zip

 

Read this thread - http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/ to understand the strategy of arbitration.

 

I would send the election of arbitration via JAMS letter "now" to both the attorney and Asset.

 

Next I would work on my answer/affirmative defenses to file with the court.

 

I would also file a motion to compel arbitration when you file your answer/affirmative defenses.

 

Then when your motion to compel is granted and the case will then be stayed for so many days for you to initiate in JAMS - I would send the attorney and Asset a good will letter letting them off the hook in exchange for their dismissing the court action "with" prejudice, no selling of the debt, deletion of the tradeline and no 1099.

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Linda7, thanks for the great response. I have modified my answer accordingly. My only concern is that as I have no proof of the original agreement or any records of the original debt, do I not have to compel AA to show the contract on which they stand in order to exercise my right to Arb?

 

I am a little leary of this approach. I will continue to research. It sounds that if I answer the complaint first I may lose my right to arb. I was trying to get my answer in today before the big storm hits here tonight.

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Updated answer to the complaint and affidavit. Thanks everyone for the great input. I think you have all helped me get on the right track. Here is what I have revised for my answer. Any feedback is appreciated.

 

 

VERIFIED ANSWER TO COMPLAINT

PRO SE

 

Defendant, appearing pro se, for its reply to the Complaint of ASSET ACCEPTANCE, LLC (hereafter "Plaintiff") states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

 

  1. Defendant can neither confirm nor deny as defendant is not versed in law and jurisdiction. Defendant will hold Plaintiff is well versed in law and is familiar with venue proper.

 

  1. Defendant can neither confirm nor deny as defendant is not versed in law and jurisdiction. Defendant will hold Plaintiff is well versed in law and is familiar with venue proper.

 

  1. 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. Defendant has not been presented with any evidence that the alleged account with DELL FINANCIAL SERVICES /CIT ONLINE BANK (hereafter “Original Creditor”) is the defendants account or of an agreement between Defendant and the Original Creditor. Plaintiff provides no proof. Defendant may have rights under the original contract with the alleged Original Creditor, such as an arbitration clause.

 

  1. Deny. Plaintiff has not provided any information or proof of Defendants default to alleged Original Creditor.  Exhibit “A” and Exhibit “B” are not proof of said allegation. See Exhibit “C” (Defendants Affidavit).

 

  1. Deny.  Defendant lacks knowledge of information sufficient to form an opinion as to the truth and accuracy of alleged assignments or entitlements of plaintiff’s actions or business they allegedly conduct. Exhibit “A” and Exhibit “B” show nothing to confirm from alleged original creditor of this statement being true. Specifically Exhibit “A” and Exhibit “B” show no specific account being attached to a Bill of Sale and Assignment between Plaintiff and the alleged original creditor. Plaintiff in no way can show they have personal knowledge of business records keeping by alleged original creditor.
  2. Deny. Defendant requested validation of debt from Plaintiff in July 2012, with no response from Plaintiff. See attached Exhibit “D” (1st Letter to Plaintiff). Defendant requested validation a second time in October 2012 when contacted by legal counsel for Plaintiff. See attached Exhibit “E” (2nd letter to Plaintiff). Defendant received a letter from legal counsel for Plaintiff in December 2012 that stated documents would be forwarded. As of this date nothing has been received from Plaintiff to show alleged account belongs to the defendant. No admissible evidence has been submitted showing legal assignment of the alleged debt as well. Defendant holds the plaintiff to the strictest proof hereof.
  3. Deny. Defendant denies any alleged obligation to the Plaintiff, as there is not, nor has there ever been an agreement, written, oral or implied between the Plaintiff and Defendant. See attached Exhibit “C” (Defendants Affidavit).
  4. Deny. Defendant has no contract or relationship with Plaintiff. Nor has Defendant entered into any agreement pursuant to the allegations of the Plaintiff.

 

AFFIRMATIVE DEFENSES

 

9. Defendant restates defenses listed in paragraphs 1 through 8 above.

 

10. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

 

 

CONCLUSION

 

 

11. WHEREFORE, the defendant asks the Court for judgment:

  1. dismissing the complaint herein with prejudice,
  2. ordering Plaintiff to permanently cease all collection activities on this item,
  3. ordering Plaintiff to delete item from defendant’s credit reporting file(s),
  4. for reasonable attorney’s fees and costs per MCL 600.2441

I declare under penalty of contempt of court that to the best of my knowledge, information and belief that this is good ground to support the contents of this Answer to the complaint.

 

 

AFFIDAVIT OF DEFENDANT

I, [Defendants Name], under "penalty of perjury" pursuant to the laws of the State of Michigan, herein after “Defendant”, depose and declare, that the following statements, made herein, are true and correct to the best of my knowledge, and not meant to mislead.

DENIAL OF DEBT

  1. Defendant denies the affidavits and allegations supplied by Plaintiff in this action and refuses to accept any alleged balance claimed as agreed balance due in full satisfaction of alleged liability. Plaintiff’s affidavit's and complaint are legally insufficient.

 

  1. Defendant denies ever having opened an account, created an agreement or received goods or services with Plaintiff to establish an amount owed to Plaintiff. Defendant denies any balance owed to Plaintiff.

 

  1. Defendant is unable to research Plaintiff’s claims in regards to the an alleged account with DELL FINANCIAL SERVICES /CIT ONLINE BANK (hereafter “Original Creditor”) as Plaintiff has not provided sufficient information including but not limited to the full account number of the original account, the address of the original creditor, the agreement on which such account was created, proof of default, the agreement on which the rights of the original creditor were assigned to plaintiff or any other facts.

 

  1. Defendant sent a letter Exhibit “D” (1st Letter to Plaintiff) by post to Asset Acceptance in July 2012 disputing Plaintiffs claims and requesting verification of the debt. Defendant never received a response to Exhibit “D” from Plaintiff.

 

  1. Defendant sent a letter Exhibit “E” (2nd Letter to Plaintiff) by certified mail to Plaintiff’s legal counsel disputing the debt and requesting verification of the debt on October 27th, 2012.

 

  1. In early December, Defendant received a letter from Plaintiff’s legal counsel dated November 1st 2012. See Exhibit “F”. In said letter it states “Additional documents relating to the referenced account have been requested, and will be forwarded to you upon receipt in the office”.
  2. As of this date nothing has been received from Plaintiff to show alleged account belongs to the defendant. No admissible evidence has been submitted showing legal assignment of the alleged debt as well. To date Defendant denies having received requested documents to verify the alleged debt and Plaintiff has had more than 180 days to produce from original request and more than 90 days to produce from second request.
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No, you do not have to have proof of the original agreement and no, you don't ask the creditor for it.  You show an agreement that covers that time period, which I think is the one in the link I provided.  Also, by asking for documents, etc., (discovery) you can waive your right to arbitrate.

 

I could explain more, but I think you have already made up your mind to stay in court and I wish you the best!

 

Do you have to file your answers/affirmative defenses "now"?  If it were me, I think I'd wait a bit and do some more tweaking on those and get more opinions.  Sometimes the less said is better.  If you point out all the deficiencies to them, they will correct the problems before your hearing.

 

I'd rather say less and then appear in court to punch holes in their evidence.

 

It also appears that you have counterclaims, but I don't see those being addressed.

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No, you do not have to have proof of the original agreement and no, you don't ask the creditor for it.  You show an agreement that covers that time period, which I think is the one in the link I provided.  Also, by asking for documents, etc., (discovery) you can waive your right to arbitrate.

Linda is right, if you want ot go the route of Arbitration you have to follow the rules!!

Rule 2.111 General Rules of Pleading

(A) Pleading to be Concise and Direct; Inconsistent Claims.

(1) Each allegation of a pleading must be clear, concise, and direct.

(2) Inconsistent claims or defenses are not objectionable. A party may

(a) allege two or more statements of fact in the alternative when in doubt about which of the statements is true;

(B) state as many separate claims or defenses as the party has, regardless of consistency and whether they are based on legal or equitable grounds or on both.

All statements made in a pleading are subject to the requirements of MCR 2.114.

(B) Statement of Claim. A complaint, counterclaim, cross-claim, or third-party complaint must contain the following:

(1) A statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to

 

CHAPTER 2 CIVIL PROCEDURE Chapter Last Updated 5/1/2012

inform the adverse party of the nature of the claims the adverse party is called on to defend; and

(2) A demand for judgment for the relief that the pleader seeks. If the pleader seeks an award of money, a specific amount must be stated if the claim is for a sum certain or a sum that can by computation be made certain, or if the amount sought is $25,000 or less. Otherwise, a specific amount may not be stated, and the pleading must include allegations that show that the claim is within the jurisdiction of the court. Declaratory relief may be claimed in cases of actual controversy. See MCR 2.605. Relief in the alternative or relief of several different types may be demanded.

© Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must

(1) state an explicit admission or denial;

(2) plead no contest; or

(3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial.

(D) Form of Denials. Each denial must state the substance of the matters on which the pleader will rely to support the denial.

(E) Effect of Failure to Deny.

(1) Allegations in a pleading that requires a responsive pleading, other than allegations of the amount of damage or the nature of the relief demanded, are admitted if not denied in the responsive pleading.

(2) Allegations in a pleading that does not require a responsive pleading are taken as denied.

(3) A pleading of no contest, provided for in subrule ©(2), permits the action to proceed without proof of the claim or part of the claim to which the pleading is directed. Pleading no contest has the effect of an admission only for purposes of the pending action.

(F) Defenses; Requirement That Defense Be Pleaded.

(1) Pleading Multiple Defenses. A pleader may assert as many defenses, legal or equitable or both, as the pleader has against an opposing party. A defense is not waived by being joined with other defenses.

(2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of action has been asserted by complaint, cross-claim, counterclaim, or third-party claim must assert in a responsive pleading the defenses the party has against the claim. A defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted. However,

(a) a party who has asserted a defense by motion filed pursuant to MCR 2.116 before filing a responsive pleading need not again assert that defense in a responsive pleading later filed;

 

CHAPTER 2 CIVIL PROCEDURE Chapter Last Updated 5/1/2012

(B) if a pleading states a claim for relief to which a responsive pleading is not required, a defense to that claim may be asserted at the trial unless a pretrial conference summary pursuant to MCR 2.401© has limited the issues to be tried.

(3) Affirmative Defenses. Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting

(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;

(B) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;

© a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.

 

I could explain more, but I think you have already made up your mind to stay in court and I wish you the best!

 

Do you have to file your answers/affirmative defenses "now"?  If it were me, I think I'd wait a bit and do some more tweaking on those and get more opinions.  Sometimes the less said is better.  If you point out all the deficiencies to them, they will correct the problems before your hearing.

Linda could be correct here, in my case against Asset, I as stated did not find this site until after I had sent in my answers, affirmative defenses, and Interrogs, some say you need to know what they have to defend, others say don't tip them off.  In my case they could not produce the underlaying contract.....go figure this one, it should have been the easiest for them to do.  When it was not produced it got dismissed with prejudice.  my case was over $10G.  I ma expecting another one from MRS I believe for around $7 to $8 g's that was opened in 1997 and defaulted in suposedly 2011 from Chase, I have no record of it.  I am definatley studying up un the Arbitration side of it.  Just not sure if i have to use the agreement from 1997(and i can find one) or 2011.  I would definatley raise the Arbitraion in your affirmative defenses, and go that route if you are able....way too costly for them for the amount they are going after you for.

 

I'd rather say less and then appear in court to punch holes in their evidence.

In my case i wanted nothing to do with cross examining etc....but now i feel more comfortable.  I would take a day or two and a deep breath and weigh your options here....

 

It also appears that you have counterclaims, but I don't see those being addressed.

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Thanks Linda7 and Upsman40, I am taking a breath and reviewing. I again modified my answers to add arbitration as an affirmative defense and will ponder quickly. I have to have this turned in tomorrow. I will also review my answers again.

 

I also took the time to look over the agreement you sent me Linda for CIT Bank and have taken time to read the link about the arb route. I am still not certain if that is the right choice for me. I understand the underlying strategy of racking their costs up so the case is dimissed. Just not feeling confident about going this route. I will continue reading.

 

Also in regards to the counterclaims, I spoke to a local attorney/friend and he was of the opinion that they should be filed as a seperate complaint in Federal District Court. Otherwise he felt the local district court would just dismiss them as the improper venue or escalate it to the circuit court. He suggested one of two strategies, either filing in tandem in Federal Court with fighting this complaint in the Local District Court and use the Federal Complaint as a negotiating tool or to wait for end of the current complaint and whether or not I get it dismissed, then file in Federal Court. He feels I have a case with 2-3 possible violations and they also might be breaking their recent consent decree with the US Gov (Although he wanted to research further to check all of the language in it) and whether if there could be any remedies.

 

Just a little overwhelming but all of the feedback is helping me pull through it and keep me on track.

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Your answer is not very good, this is not state specific, just straategic. You are arguing the case in the answer, which is improper. All you need to do is admit or deny the allegations, you don't have to give some long winded reason. Lack of knowledge is okay, but you're going into discovery arguments.

 

 Defendant restates defenses listed in paragraphs 1 through 8 above.

 

And what were they? You listed no defenses, you argued the case. Defenses must be specifically listed....."And for a First Defense, yadda yada..." And for a Second Defense, etc. You have to list specific, valid defenses acceptable in a court of law. "They didn't attch any documents" is not a defense, it's a gripe about discovery that you have yet to conduct. Most of us suggest you not use any special defenses, as they are yours to prove.

 

Defendant denies any alleged obligation to the Plaintiff, as there is not, nor has there ever been an agreement, written, oral or implied between the Plaintiff and Defendant. See attached Exhibit “C” (Defendants Affidavit).


Deny. Defendant has no contract or relationship with Plaintiff. Nor has Defendant entered into any agreement pursuant to the allegations of the Plaintiff.

 

Here you repeat an invalid, worthless argument commonly known as privity. It does not apply in credit card cases. Saying it twice won't make it any better. Everything you put in here is argumentative and improper. Give yourself 20 words for each response and stick to that, you'll make less trouble for yourself. Judges in Michigan will see this and you'll get killed in court. 
 

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This is how i'd answer this complaint ......... forget all the fancy legal jargon ...... it makes you look pompous and arrogant ........ just show the judge that you know your rights and the law.

 

1. The Defendant(s) resides within this court’s venue and venue is proper in this court.


     Admit in part; Defendant resides in this court’s jurisdiction.


2. The amount in controversy is within this court’s jurisdiction.
    Admit


3. The Defendant(s) has an agreement for a/an INSTALLMENT LOAN, originally with DELL FINANCIAL SERVICES/CIT ONLINE BANK.


Deny. Pursuant to MCR 2.113 (F) (1) ( B) “If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is ( B) in the possession of the adverse party and the pleading so states;”
No agreement pertaining to alleged account was attached to Plaintiff’s complaint.


4. The Defendant(s) has defaulted in payments on the above mentioned account, said account being shown in the Affidavit. See Exhibit “A” (Affidavit) and “B” (Statement of Account not previously sent to Defendant).


Deny. Plaintiff has not shown that Defendant has defaulted on alleged account.


5. ASSET ACCEPTANCE, LLC purchased the account shown in the attached Exhibits “A” and “B” and was assigned all rights to the account in the normal course of business.


Deny. Plaintiff has not shown that they are assigned any rights nor have they shown proof of purchase of the alleged account.


6. ASSET ACCEPTANCE, LLC has notified the Defendant(s) of the above mentioned account and the Defendant(s) has failed to pay for same.


Admit in part; plaintiff has notified defendant ot the alleged debt. Defendant has disputed this alleged account as is evidenced by defendants exhibit (A). Attach your DV letter and label it Exhibit A.


7. There is presently due and owing over and above all legal counter-claims the sum of $3,XXX.XX which includes interest at the statutory rate. See Exhibits “A” and “B”.


Deny. Plaintiff has not shown they are due or owed anything.


8. ASSET ACCEPTANCE, LLC requests Judgment for $3,XXX.XX plus interest, costs, statutory attorney fees, pursuant to MCL 600.2441.


This is not an allegation and deserves no response.

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Hi Everyone (and Saviour),

 

I'm here in MI, and I'm in the same boat as blindspot99. Mine is an HSBC card that AA got ahold of. Around 8K. I have about 2 weeks to respond.

 

I'd like to go the same route he's thinking about, using Saviour's simplified guidelines. I agree I think it's best to keep things simple with the answers, while giving them the impression I have some idea what's going on. Challenging them to produce OC documents and such.

 

Where my argument would head would be toward their Exhibit B (account) page on my summons where they state in the account Info window that they are an "ASSIGNEE of HSBC Bank Nevada, OR ITS SUCCESSOR IN INTEREST."

Yet they state a PURCHASE DATE of 1/2011. How can you be BOTH an ASSIGNEE and OWN the debt? Either you are assigned the debt to collect by the OC, or you purchase the debt outright from HSBC and are colecting it for yourself, RIGHT?? It would be like buying a car private party, then, when you have an accident, tell them that you were assigned the car by the previous owner!

 

Anyway, I'm unclear on trying to use the Arbitration route if I proceed with answering the complaint. I need to know if I still have have the option if I file an answer to the complaint or not. I would like to keep that arbitration option open if they decided not to drop the lawsuit. How would I intergrate that into my answer. If someone could help me I'm using Saviour's template, but need to know what else to put after his ends to make it a complete document for filing.

 

So glad I found this forum, wish I had found it earlier. Thanks and blessings to all of you who give your sage advice and guidance here!

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Hi Everyone (and Saviour),

 

I'm here in MI, and I'm in the same boat as blindspot99. Mine is an HSBC card that AA got ahold of. Around 8K. I have about 2 weeks to respond.

 

I'd like to go the same route he's thinking about, using Saviour's simplified guidelines. I agree I think it's best to keep things simple with the answers, while giving them the impression I have some idea what's going on. Challenging them to produce OC documents and such.

 

Where my argument would head would be toward their Exhibit B (account) page on my summons where they state in the account Info window that they are an "ASSIGNEE of HSBC Bank Nevada, OR ITS SUCCESSOR IN INTEREST."

Yet they state a PURCHASE DATE of 1/2011. How can you be BOTH an ASSIGNEE and OWN the debt? Either you are assigned the debt to collect by the OC, or you purchase the debt outright from HSBC and are colecting it for yourself, RIGHT?? It would be like buying a car private party, then, when you have an accident, tell them that you were assigned the car by the previous owner!

 

Anyway, I'm unclear on trying to use the Arbitration route if I proceed with answering the complaint. I need to know if I still have have the option if I file an answer to the complaint or not. I would like to keep that arbitration option open if they decided not to drop the lawsuit. How would I intergrate that into my answer. If someone could help me I'm using Saviour's template, but need to know what else to put after his ends to make it a complete document for filing.

 

So glad I found this forum, wish I had found it earlier. Thanks and blessings to all of you who give your sage advice and guidance here!

More people would see your post if you started a new thread.

 

In the meanwhile, read this thread - http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/ and you'll understand the strategy of arbitration.

 

If it were me, I'd elect arbitration via JAMS "now" by sending the notice to both the attorney and to Asset.

 

Then you can work on your answer/affirmative defenses "and" include the arbitration defense.  You'll see that more explained in the link I provided.

 

Next I would file a MTC arbitration with the court.

 

Also, you can pm me and let me know the date the account was opened and the date it defaulted.  Let me check some agreements.  I'm hoping yours will fall into one that has JAMS.  HSBC agreements generally have some good options - like a $50 filing fee instead of $250 for JAMS, etc.

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Just to give everyone an updated status in regards to my case.

 

  • Had pre-trial back in April. - Interestingly the attorney for AA did not even want to talk to me. He just asked if I was looking for documents and if 60 days would be ok. Court ordered discovery for 60 days. June 24th is the 60 day cut off. Also same for turning in witness list. Have till July 22nd to file all motions. Trial scheduled for late August.
  • Sent Admissions, Interrogatories and Discovery of documents back in April right after pretrial.
  • AA sent a response to admissions dated on the 28th day from when I sent them but post marked 2 days later. Basically denied everything straight down my questions with the exception of the affiant working for AA and a couple of questions they objected to in which I asked them to admit to a couple of points about their settlement agreement with the FCC.  
  • Received a discovery request from AA end of May. Already wrote up my answers and are in the envelope but waiting until near the end of the 28 day response period to send them out. (I figure they are not responding to me so I think I will make them wait a while.) ::punk::
  • AA never responded to request for documents or interrogatories. 
  • Sent a Meet and Confer letter and asked for everything in 10 days. No response from AA.
  • Filed a Motion to Compel and I am waiting to get in front of the judge. I love the fact that the clerk scheduled the date to hear the motion on July 5th. ::USA::
  • So far no response from AA.

To date all AA has sent is the original complaint with an affidavit from an AA employee and a statement of account on their letter head that is not referenced in the affidavit.

 

So am waiting for Judge to hear my motion. I am expecting that AA will file a MSJ after the Discovery period is over in a few weeks. The only question I have is as BMC100 has suggested is beating them to the punch and file my own MTD for lack of standing? Guessing I need to wait until after my motion to compel is heard and see what if anything they come up with.

 

Thanks again to everyone on here for all of your help. I will update again after either the motion to compel hearing or if I get a MSJ from AA.

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Sounds like you are in pretty good shape if AA doesn't respond. I would expect an opposition to your motion ....... watch for the timeliness of their opposition (21 days).

 

Also, bone up on MCR 2.313 Failure to Provide or Permit Discovery; Sanctions

 

There are two schools of thought on this board concerning a motion to compel:

  1. It shows the court that you are acting in good faith and the plaintiff is not following the rules of procedure.
  2. Why would you want to compel plaintiff to provide you with evidence that might beat you?

Either is a valid strategy. I've seen cases where the defendant didn't answer discovery and the plaintiff walked into the court room and asked the judge to deem all of the discovery as being admitted. Boom, case over; judgment for the plaintiff.

 

I've also seen cases where the plaintiff didn't answer discovery even after being compelled by the court (rare but, it happens).

 

It seems that you have formed your strategy and I wish you the best of luck.

 

Please keep us updated.

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