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Sued by JDB In MIchigan - Help needed


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Received summons/complaint from attorney.

 

Plaintiff is Cavalry SPV I, LLC Assignee of Bank of America/FIA Card Services

 

Complaint:

1. That the defendant herein is indebted upon open account or pursuant to contract, and defendant accepted same

2. Performance has been completed and defendant agreed to pay the account

3. There is presently due and owing ...

4. Plaintiff requests judgment in amount of ......

 

Attached is an affidavit of claim signed and notarized in New York.

 

Affidavit states they are an authorized rep for plaintiff, etc.

Affiant is legal administrator for Cavalry Portfoloio Services, LLC, a Delaware company .. Cavalry Portfolio Services performed recovery services for its affiliate, Cavalry SPV I, LLC

That defendent opened accoutn with Bank of America/FIA Card Services on x/xx/1996 and became delinuent and was charged off on x/xx/2010

As of xx/xx/2012 balance due and owing is... balance continues to accrue interest at a rate of 24.99%

Acct was purchased by Cavalry SPV I, LLC on or about x/xx/2012

Long statement about maintaining computer records and could testify if called as witness

Bank of America/FIA transferred copies of electronic business records to Cavalry

 

The only other attachment is a printout stating that I was not found to be in the military.

 

 

 

Ok, I have been reading the other thread about defending JDB in Michigan and like the idea of a Motion to Dismiss.  I have a few questions though.  This affidavit was signed more than 10 days before it was filed, so based on case law, this does not allow the affidavit to be used as prima facia evidence, correct?

 

I have been reading some other tactics regarding a motion to dismiss and wording it to ask for a motion to dismiss with prejudice if certain documents are not produced in 30 days.  Rather than just a motion to dismiss and having the judge order the 30 days document production period anyways.  These seems like a good tactic.  I am a bit confused on what exactly to say in the motion to dismiss.

 

My main question is, as the affidavit was signed more than 10 days before filing, do I need to mention this in the MTD or should this argument be saved for later?  If I do mention this in the MTD and say they need to come up with the documents proving the claims, do they have to produce the documents or can they just submit a newer affidavit claiming the same thing with no supporting documents?

 

Also, How best to word the request for purcahse agreements, etc showig the chain of ownership of the debt?

 

Also, if this is an account of mine, and I'm not 100% sure because I have nothing to verify the credit card number they gave in the complaint, the original accout was opened in 1996 with MBNA, NOT Bank of America/FIA as they stated.   I think BofA/FIA bought MBNA at some point, but I never applied for an account with BofA.

 

What else should be in the MTD?  Do I need to put as much as possible in there?  Thanks for the help.

 

 

 

 

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Received summons/complaint from attorney.

 

 

I will answer to the best of my knowledge.

 

First of all ..........Cavalry LLC is a known junk debt buyer and is fairly easy to beat in court.

Cavalry stepped into the shoes of FIA when they bought this alleged debt .......... therefore, they must abide by FIA's Card Member Agreement.

 

Second ..........since the affidavit is untimely .......... it cannot be used as prima facie evidence against you.

 

You must file an answer within 21 days of receiving the summons.

 

Copy and paste the questions asked here into this thread and answer them.

It will help the posters to give more informed answers to your questions.

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1. Who is the named plaintiff in the suit?  Cavalry SPV I, LLC Assignee of Bank of America/FIA Card Services

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)  Stillman Law Office

3. How much are you being sued for?  $11,000ish

4. Who is the original creditor? (if not the Plaintiff)  I belive this was originally an MBNA card, then BofA bought them?

5. How do you know you are being sued? (You were served, right?)  Servied with summons/complaint

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

7. Was the service legal as required by your state?  I believe so

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  None

9. What state and county do you live in?  Ingham, 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, I think 2009

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

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 summons/complaint, have several days left to file answer/motion

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.   No

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?   3 days

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Affidavit only which was signed more than 10 days prior to filing.  Also a printout listing military status, I am not nor was ever in the military, no other attaachment

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You have two options :

  1. Educate yourself and fight it in court. Read bmc100's post 'Being sued in Michigan' if you haven't already. He's the resident expert from Michigan. You are going to have to familiarize yourself with Michigan's Rules of Civil Procedure & Michigan's Rules of Evidence also. you can find links to those documents here .
  2. Educate yourself concerning private contractual arbitration. Read Linda7's post 'The Strategy and Steps of Arbitration'. This is a rather large claim but, you have a very viable defense in arbitration. If in fact, the last payment you made on this alleged account was in 2009, then according to FIA's own Card Member Agreement, this is past the SOL (FIA is in Delaware which has a 3 year SOL). You can find BofA agreements here.

You're probably asking yourself, " if this alleged account is past the SOL, why not just bring it up in court rather than go through the hassle of arbitration?"

It's because of Michigan's choice of law statutes. It makes it hard to get the judge to agree to the SOL of another state.

 

This ought to get you started ......... any questions you have should be posted to this thread to keep continuity.

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Luckily for you this is being represented by Stillman. I have made Stillman my own personal punching bag for getting suits dismissed or for very, very low settlement offers. Dependant upon if the poster did not want to continue to fight.

 

I would file your own affidavit, even though the Plaintiff's affidavit does not comply with MCL 600.2145. The purpose of creating your own affidavit is to use it at a later date when the Plaintiff tries to prove the account stated claim at summary judgment under rule 2.116©(10).

 

If you fight this, you need to file an answer. You either admit, deny or claim you lack knowledge, which has the effect of a denial.

 

When you deny, you have to back it up with a defense. Via the MI Supreme court, a denial constitutes a valid defense. Ultimately the burden of proof rests upon the Plaintiff to prove their arguments. Typical defenses include 1) Lack of Standing or 2) Failure to state a claim or the documents the Plaintiff has not provided up to this point.

 

Further, even if the affidavit attached to the complaint was properly dated to comply with MCL 600.2145, it would need to be accompanied by the written instrument (account statement or terms and conditions) upon which their claim is based.

 

Since they pleaded the bare elements of assignment in their complaint, the only option you have is to file an answer, unless you have proof that this is not your account.

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BMC100, I should not file a Motion to Dismiss based on MCR 2.113(F) and MCR 2.116?  I have been working on that for the last two days based on what I was reading in your other threads regarding MI credit lawsuits.  Unfortunately, I am up to the deadline on this and haven't been working on an answer as I was going the MTD route. 

 

Regarding the affidavit, is there a sample anywhere as to what should be stated in this?  Is this to be filed with the answer?  If I do the MTD, should the affidavit still be filed with that?

 

Thanks again for all the help.

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BMC100, I should not file a Motion to Dismiss based on MCR 2.113(F) and MCR 2.116?  I have been working on that for the last two days based on what I was reading in your other threads regarding MI credit lawsuits.  Unfortunately, I am up to the deadline on this and haven't been working on an answer as I was going the MTD route. 

 

Regarding the affidavit, is there a sample anywhere as to what should be stated in this?  Is this to be filed with the answer?  If I do the MTD, should the affidavit still be filed with that?

 

Thanks again for all the help.

I would not in this case. If you file a MSJ, the court will most likely allow the Plaintiff to amend their complaint. The only rule you coulduse is MCR 2.116©(8) and at best the case would be dismissed w/o prejudice.

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Do I say anything about the Plaintiff's untimely affidavit in the answer?

 

Also, in the complaint where it says "Plaintiff request judgment in the amount of xxxx, etc. etc etc."  This is a numbered item.  It is item 4 after the 3 allegations.  Do I have to respond to this with a denial, etc. because it is a numbered item rather than just stated after the allegations?

 

Thanks again

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I don't think you need to mention the affidavit in your answer but, you should file an affidavit of your own (with your answer) responding to the statements in their affidavit.

You could mention the untimeliness in your affidavit.

 

For item #4 you could respond with something like " This is not an allegation and as such does not require a response".

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  • 3 weeks later...

The judge will set the guidelines for discovery at your pre-trial.

Expect the attorney for plaintiff to take you aside and attempt to settle.

 

There are a lot of examples on the board for production of documents (POD). Not so much for admissions because they are very much dependant on the documents you request.

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  • 3 weeks later...

I received a Joint Civil Pretrial Summary fromt he plaintiff.  They are requesting I sign this and return so neither party has to show up to pre-trial conference.    These are responses to 18 questions requested by the court.  The only one that I am unsure about is:

 

 

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I received a Joint Civil Pretrial Summary fromt he plaintiff.  They are requesting I sign this and return so neither party has to show up to pre-trial conference.    These are responses to 18 questions requested by the court.  The only one that I am unsure about is:

 

LIST ALL PROPOSED EXHIBITS AND ADMIT THE AUTHENTICITY OF EACH WHENEVER POSSIBLE

 

  DEFENDANT WILL SUBMIT THE FOLLOWING

 

  Email correspondence, records of payment, telephone records, and other communications with Defendant canceling the agreement before it was allegedly automaotically renewed for the year for which Plaintiff seeks to recover damages and all exhibits listed by Plaintiff.

 

I do not understand exactly what this is saying.  Also, do I need to add anything to this section?  Should I sign this and return or show up at pre-trial?

 

Thanks again

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I'm going to bump this up to the top because I've never heard of or read about a Joint Pretrial Summary. I suspect that it is a deception to trick you into divulging your strategy and perhaps give them something they can use against you (like a no show at pretrial). I'd make sure that you go to the pretrial even if it comes to light that signing this is required.

 

Anyone else ever hear of a Pretrial Summary?

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Ok, I will not sign anything and go to pre-trial.  When I received my notice of pre-trial hearing form the court there was another paper from the court that said this: 

 

 

In all cases set for a pretrial conference, a Joint Pretrial Summary shall be prepared, submitted and approved by the Court prior to the date of pretrial, OR the parties shall appear for the pretrial on the date scheduled.   In the Summary:

 

State the triable factural and legal issues

 

State the necessity or desirability to amend the pleadings, including the need to add parties

 

State whetehr there are any pending defenses filed under MCR 2.116 or motions to be disposed of before trial

 

State whetehr the case may be consolidaetd with any other case for trial

 

State any admissions of fact not covered in pleadings

 

State whether the case may be consolidated with any other case for trial

 

State anya dmissions of fact not covered in pleadings

 

State whether you can agree upon the authenticity of any documents, including charters and regulations

 

List all witnesses expected to testify at trial by each party

 

STate whether you have considered lmiting the number of expert witnesses

 

State a date by which each party will identify their expert witness or witnesses

 

State whether consolidation or separation of issues is appropirate

 

Specify all damage claims in detail as of the date of this statement

 

List all proposed exhibits and admit the authenticity of each whenever possible

 

State whether or not all claims arising out of the transaction or occurrence that is the subject matter of this action have been joined as required by MCR 2.203(A)

 

State the scope of discovery, if any, and date that discovery will close

 

STate whether jury or non jury and if fee has been paid

 

State the possibility of settlement

 

State whether case should be submitted to case evaluation

 

State time required for trial

 

If you file a Pretrial Summary, provide a line for dating and signature by the Judge.  Attorneys on each sie must also sign the summary.

 

---------------

 

The thing they want me to sign are those questions answered.  My only concern is they indicated non-jury trial.  is this an option I should leave open at this point or not?  Also, the question I stated earlier about documents/exhibits I will provide.   I have no records of this alleged account and have nothing to provide.

 

Thanks everyone

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That is called a pre-trial statement. You need to fill that out and give it to the court clerk when you check in for Pre-trial. The clerk will give you a copy to hand to the Plaintiff.

 

Do not sign off on anything that there attorney sends you.

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@admin

 

In the two cases I've been involved in and actually had to appear in court, there were no pre-trials at all. The only appearances made are for motions filed or trial.

This Pre-trial Summary must be District Court specific; I've never even seen it mentioned in Michigan's Civil Procedure.

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@admin

 

Things, apparently, vary even in the same state.

 

Michigan has 105 limited jurisdictional courts and each district court may have it's own 'magistrate court'. District courts also contain a small claims division which handles cases up to $3000 if you agree to waive your right to a jury trial, representation by a lawyer, rules of evidence and your right to appeal the decision of a district judge. The saving grace to this kangaroo court system is that if either party doesn't agree to have their case tried in small claims; it is then heard in 'real' court.

 

Each district has it's own local rules but must adhere to Michigan's Rules of Civil Procedure.

I suspect that this Pre-Trial Summary is part of the OP's local rules as I've never heard of it in northern Michigan.

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