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Time barred in Michigan


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I am being sued by the OC. The alleged debt was 6 years and 43 days old when the complaint was filed. SOL in Michigan is 6 years. Also, the debt is being handled by a JDB according to my credit report.

I plan to use SOL as my defense, however I am not sure if I should do one of the following :

1. Send the answer only, listing sol as my defense.

2. Send a MSJ in lieu of answer

3. Send a MTD with my answer.

Secondly, how would I address the fact the OC is suing me when alleged debt is handled by a JDB not listed on the complaint? If it was the JDB suing me, I know I would request assignment of the alleged debt.

Any suggestions or strategies?

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You will want to go to this link here at this site, and copy and paste your answers...

Post it Here in the thread you just started...

This will help members have important information to help you.

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

 

Be sure you don't put your name, address or any private info about you, in your answers.

 

Also, bmc100 has a thread tailored to those of us in Michigan, and is very helpful as well.

Here is that thread link...

http://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/

 

Help will be on it's way soon..

All the people here are very very helpful :yahoo:

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1. Who is the named plaintiff in the suit?

OC and lawyer.

2. What is the name of the law firm handling the suit? Lawyer & lawyer pllc

3. How much are you being sued for?

3455

4. Who is the original creditor? (if not the Plaintiff)

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

I was served

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?

None

9. What state and county do you live in?

Michigan, Wayne

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Over 6 years ago

11. What is the SOL on the debt?

6 years

12. What is the status of your case? Suit served? Motions filed?

Served.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Yes, with the JDB. JDB not listed in complaint.

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? 21 days

Please post what they are claiming.

Failure to pay rental rate as agreed.

Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No

They did not specifically state a claim such as account stated or written instrument. Also states I have the contract, which is not true.

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

Affidavit from OC stating original contract was lost.

Statement of final balance dated 6 years ago

Addendum to contract with my signature

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If you could post the complaint (minus (block out) personal information) would be helpful as well.

 

Are they only suing you for failure to pay rental rate as agreed?


Here is a link to bmc100 help thread for people in Michigan.

thread number 8 and 9 have examples of how to do an answer and an affidavit.

 

http://www.creditinfocenter.com/community/topic/318613-my-wife-is-getting-sued-again-this-time-by-a-jdb-stellar-recovery/

 

Hope this helps.

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SOL is an appropriate and usefull tool to fight this. When You answer the complaint you deny the complaint and you also state that "the plaintiff is attempting to collect on a time barred debt.

 

You should also file a counter claim under the fdcpa for filing a suit on a time barred debt, they may have just put 1000 dollars in your pocket. Also check your state laws for filing a suit for a time barred debt.

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SOL is an appropriate and usefull tool to fight this. When You answer the complaint you deny the complaint and you also state that "the plaintiff is attempting to collect on a time barred debt.

 

You should also file a counter claim under the fdcpa for filing a suit on a time barred debt, they may have just put 1000 dollars in your pocket. Also check your state laws for filing a suit for a time barred debt.

 

 

 

I am being sued by the OC

 

 

 

I'd love to see some case law where anybody sued an OC under the FDCPA. We haven't even seen his evidence of the SOL, most people get it wrong.

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I am being sued by the OC

 

 

 

I'd love to see some case law where anybody sued an OC under the FDCPA. We haven't even seen his evidence of the SOL, most people get it wrong.

This, absolutely.

 

It is an FDCPA violation.... supposedly.... to sue on a time barred.

 

But when an OC sues on a time barred.... what does the violation fall under?

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The FDCPA violation is against the law firm doing the suing, not the party suing the Defendant.   It's a violation (assuming the SOL defense is accurate) but you don't assert it as a counterclaim against the party suing the Defendant, you file a seperate action against the law firm.  The two have nothing to do with each other whats-so-ever in the context of the validity of the underlying debt or the legal status of the underlying debt.  

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1. The Plaintiff conducts business in XXXX

2. That Defendant is an individual who resides within the jurisdiction of this court

3. That on or about the Defendant rented an apartment from Plantiff and agreed to pay the monthly rental for said apartment and agreed to maintain same and to return same in as good condition as when rented, ordinary wear and tear excepted. (Defendant is in possession of the lease.)

4. That the Defendant vacated the leasehold premise.

5. That the Defendant is indebted to Plaintiff for rent and damages, leaving an outstanding balance of XXXX, of which sum Plaintiff has demanded payment from the Defendant but the Defendant refused to pay

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Non-Payment of Rent

 

Pursuant to MCL 600.5813, the statute of limitations in Michigan for debt collection or non-payment on a debt is six years. Unpaid rents are considered debts. The time period begins when your rent is first considered late or unpaid.

 

Property Damage

 

Pursuant to MCL 600.5805(10), the statute of limitations for a lawsuit to recover for damage to property generally is three years. "Property" includes leased premises. The time period begins when the damage occurs.

 

 

This was just copied from a quick Google search ........... please verify it for yourself by looking up the statutes.

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Usually it is a Motion to Dismiss in Lieu of an Answer. If the suit is time barred, there won't be anything for you to answer, it gets thrown out. If the motion is denied, then you would answer. This looks pretty close....you probably went into default on the day you first failed to make a rent payment. Fast forward six years and compare that date to the date the suit was filed. Then again, read the lease to see how it defines default. There may be some trick wording that says the lease remains in effect until the termination date and that any legal action to collect back rent starts on that date. Why did they wait six years?

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This is a technicality but, I don't see where they say they don't have a copy of the lease in their complaint .......... better watch out for this.

The rule in civil suits in MI, MCR 2.113 (F) (1) ( B), says that if a complaint is based on a written instrument, a copy must be attached to the complaint unless the instrument is in the possession of the adverse party and the pleading so states. They have so stated. You might want to consider filing an affidavit (with your answer) stating that you don't have a copy for whatever reason.

 

If this goes to discovery you will want to ask for a copy of said lease.

 

All of the above is just another tact to consider should your SOL defense fail for whatever reason.

 

I'm also curious as to why they waited this long to sue you ........... unusual in this type of complaint. Better get a copy of that lease and see what it says (quote: Bruno).

 

If this happened to be a commercial lease, and the issue is property damage; the rules change. You, as tenant, are responsible for needed repairs to the property in a commercial lease. Just a FYI.

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It is still time barred.

FDCPA would not apply to the landlord.

FDCPA could apply to the attorney, you will have to prove that the attorney is a debt collector as defined under the fdcpa.

 

 

The FDCPA violation is against the law firm doing the suing, not the party suing the Defendant.   It's a violation (assuming the SOL defense is accurate) but you don't assert it as a counterclaim against the party suing the Defendant, you file a seperate action against the law firm.  The two have nothing to do with each other whats-so-ever in the context of the validity of the underlying debt or the legal status of the underlying debt. 

 

Thus sayeth Coltfan two posts earlier.

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The OC is the named Plaintiff not the collection agency.

Also, the affidavit states they searched for the lease and could not find it.

 

So, your ex-landlord is named as plaintiff?

 

You're going to say pretty much the same thing in your counter affidavit.

 

 

Dueling affidavits and SOL ..... ???

 

Still ....... interesting why they haven't filed sooner than this.

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