Sign in to follow this  
buddyapple

Answer filed, received NOTICE TO APPEAR Pre-trial conf 4/29, Help?

Recommended Posts

Hi Everyone,

 

A BIG thank you for all of you who have been so helpful thus far. I hope and pray you are all doing well.

 

I have started a new thread for this part of my journey against Asset.

 

Here is a link to previous post:

 

http://www.creditinfocenter.com/community/topic/319510-asset-acceptancehsbc-summons-received-in-mi-next-step/page-2

 

I filed my answer March 22. received the Notice to Appear for Pre-Trial conference on April 29.

 

With my answer I submitted the DV letter I had sent (regular mail, I know, STUPID!!), so the Judge will at least know I had done

 

something.

 

I heard from peanutrs that I should file an affidavit, as stated:

 

"Just want to make sure you do your own AFFIDAVIT and make sure you file it right away.

 

If you don't respond (file) an affidavit denying everything, then it is easy for the Plaintiff to get a "account stated" claim."

 

If this is something I need to do, let me know. I thought that filing my answer denying all, and affirmative defenses, along with the DV

 

letter I had sent out was all I needed to do until I received the Notice for the pre-trial conference.

 

What should I do to prepare for the conference as far as paperwork and such?

 

Thanks again,

buddyapple

 

 

 

Share this post


Link to post
Share on other sites

Here's what happened a few years ago at my Pre-trial conference. I sat down in the waiting area. There were several attorneys for different JDB's there calling people out of the court one at a time. When I was called, I went into a room with the supposed attorney. First he asked if I would accept arbitration. I flat declined. Then he wanted to see if they could settle. I told him I wasn't going to agree to anything until they had proved to me that this was my debt. (at that point they hadn't produced one single piece of evidence.) He tried to intimidate me by stating that his settlement power would diminish as time went on. I basically told him I didn't care and wanted to see his evidence. He asked me if I was ok with giving them 30 days to produce it. I agreed (probably will not ever do that again).With that we went back into the court room. The judge called our case, the attorney told him that we had agreed to a 30 day continuance. The judge asked if I agreed and I said I did. That was it. About 2 weeks later I got a dismissal without prejudice notice in the mail.

 

In my case it was essentially a tactic to get me to try to settle because they knew they didn't have any evidence and their case was crap.

Share this post


Link to post
Share on other sites

Hey Flyerfan,

 

Thanks for the tip!! bmc100 really is the "go-to" source here in MI!

 

Just want to be sure I don't put too much out there until necessary.

 

Take care!

Share this post


Link to post
Share on other sites

 

 

I heard from peanutrs that I should file an affidavit, as stated:

 

"Just want to make sure you do your own AFFIDAVIT and make sure you file it right away.

 

If you don't respond (file) an affidavit denying everything, then it is easy for the Plaintiff to get a "account stated" claim."

 

If this is something I need to do, let me know.

 

I told you in this post that you should file a counter affidavit with your answer. Now, according to MCL 600.2145, they have established a prima facie case against you unless their affidavit was stale also.

If it was; it wouldn't hurt to file one before the pretrial conference.

Dueling affidavits = an issue of material fact

 

"Prima facie evidence by its nature is not irrefutable. It is 'evidence which, if not rebutted, is sufficient by itself to establish the truth of a legal conclusion asserted by a party." Velardo & Assocs. v. Oram, Mich: Court of Appeals 2008 (quoting Am. Casualty Co. v. Costello, 174 Mich. App. 1, 7 (1989)

 

 

What should I do to prepare for the conference as far as paperwork and such?

 

Probably not much ........ just make sure that you show. As the above two posts indicate, you will be harassed by the plaintiff to settle and when you don't, the judge will more than likely set discovery dates.

  • Like 1

Share this post


Link to post
Share on other sites

Hi Savoir,

 

I did miss that. I have no idea how I would word a counter-affidavit to theirs. I might have time to amend my answer if they allow 15 days.

 

Are there any examples out there? I'll try to search in the mean time.

 

Thanks again, Savoir!

Share this post


Link to post
Share on other sites

Savoir,

 

Don't know if this matters in preparing the counter, but they did comply within the 10 day window (7 or 8 days) for filing.

 

buddyapple
 

Share this post


Link to post
Share on other sites

Hi Savoir,

 

I did miss that. I have no idea how I would word a counter-affidavit to theirs. I might have time to amend my answer if they allow 15 days.

 

Are there any examples out there? I'll try to search in the mean time.

 

Thanks again, Savoir!

 

In MI, you have 14 days; after that you have to motion for leave of court to amend your answer.

 

Savoir,

 

Don't know if this matters in preparing the counter, but they did comply within the 10 day window (7 or 8 days) for filing.

 

buddyapple

 

 

I've not seen a JDB comply with this rule ......... I don't know the answer to this.

I still contend that an affidavit filed, rebutting their affidavit, will create an issue of material fact.

Couldn't hurt.

Share this post


Link to post
Share on other sites

Hi all,

 

Thanks to you, Savoir!

 

Thursday would be the 14th day, so I'm OK on that.

 

I just don't know how I would word my affidavit. Here's what they wrote:

 


AFFIDAVIT OF ACCOUNT
1     I am an employee of YOU KNOW WHO, LLC ("Plaintiff), a (STATE) 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 YOU KNOW WHO, 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 records in my possession, JOHN M. DOE ("Defendant(s)") established an account with HSBC BANK NEVADA NA herein under account number XXXXXXXXXXXX-9999.

 

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, Plaintiffs 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 $8,xxx.xx together with interest at the statutory rate.

 

I might be sounding a little dense, and I apologize for that. Just want to be sure that I submit a counter-affidavit that is proper, so any help in putting this together

 

would be of great help. I know I'll have to get it notarized and into the court on Thursday. Do I need to file it like a new answer with the previous forms I filed attached

 

to it, or just the notarized affidavit by itself?

 

Thanks again to everyone. I'm beginning to get a little bit of a handle on it, and I'm not really nervous about it. Just need the help.

 

buddyapple

Share this post


Link to post
Share on other sites

My first case sounds a lot like yours ....... I didn't know what I was doing either.

When I found out that I needed to file a counter affidavit I just refiled the same answer (with exhibits attached) I had filed previously only titled it 'Defendants Amended Answer' and I then attached my affidavit refuting plaintiff's affidavit.

 

An affidavit must be made 'on personal knowledge'; nowhere in their affidavit does it state that the affiant has personal knowledge. It states that 'to the best of my knowledge and belief'.

 

This is all hearsay based upon some alleged records that they might have in their possession. According to your previous thread all they have as 'evidence' is the affidavit and an alleged account statement which, in all probability, they created themselves.

 

Get your notarized counter affidavit filed refuting their affidavit before Thursday and hammer the personal knowledge aspect at every opportunity.

Go point by point, just like in your answer to the original complaint, and allege that the affiant could not have 'personal knowledge' of the accuracy of the alleged underlying debt (except where, obviously, other responses would be more appropriate).

Share this post


Link to post
Share on other sites

Pretrial they usually set up the time limit for discovery as well.

I would suggest not giving the Plaintiff too much time for discovery.

Just more time for them to bombard you with paperwork... :(

I went along with 90 days on mine... If I were to do it over again, I would of requested a shorter period of time.

Just saying...

Share this post


Link to post
Share on other sites

Hi Savoir and peanutrs,

Thanks for the replies, instructions and advice.

Savoir: You're the best. And you are correct, the Account Statement was generated in-house by Asset. Affidavit

and Statement dated Feb 12, filed Feb. 19. Seems like they are trying to cover that 10 day period more and more

effectively, and putting out just enough info on the Statement they generate that most people don't see it as

disputable.

peanutrs: Thanks for your insight. Got the PM with the info. You are a blessing!

buddyapple

Share this post


Link to post
Share on other sites

Hi All!

 

Here's what I've put together as my Counter-Affidavit in response to AA's employee affidavit. Let me know how it looks to all of you. I'm 

 

wondering if I should state "Lack of Standing" in place of "Lack of Knowledge" on some of the statements. Let me know!!

 

I need to file it Friday to be at the 14 day amending deadline.

 

 

THANKS EVERYONE! 

 

                                                                                                                                  EXHIBIT "B"

STATE OF MICHIGAN       )
                                         )  ss.
COUNTY OF ????????    )

                                                         AFFIDAVIT OF DEFENDANT (COUNTER-AFFIDAVIT)

I, ME, Defendant, being over 18 years of age and competent, hereby affirm the following is true and correct under penalty of perjury, depose and states as follows:

In response to each statement made by YOUR LACKEY, an employee of ASSET ACCEPTANCE, LLC, in the Affidavit of Account dated February 12, 2013, submitted by the Plaintiff as Exhibit "A", the Defendant states as follows:

1.     Although I have received a Summons and Complaint from ASSET ACCEPTANCE, LLC, I have had no contact with any person named YOUR LACKEY, or any personal knowledge that any such person exists, or is under employ by ASSET ACCEPTANCE, LLC,  so I cannot accept this statement as truthful.

2.      If ASSET ACCEPTANCE, LLC, does have in it's employ the person listed in the Plaintiff's Affidavit, YOUR LACKEY,  then I would admit this employee would be familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and maintains it's business records pertaining to this account.

        That being stated, this alleged employee, or any employee of ASSET ACCEPTANCE, LLC, would not, and could not, have any personal knowledge, and thereby cannot attest to the accuracy or authenticity of any records allegedly purchased by Plaintiff as required by the MICHIGAN RULES OF EVIDENCE, RULE 602.  In order for an Affiant to have any personal knowledge of any alleged account the Defendant may have established with HSBC BANK, NEVADA NA, it would require the individual creating the Plaintiff's Affidavit to be an employee of HSBC BANK, NEVADA NA. This individual is not. Therefore, the Defendant cites Lack of Knowledge of and by the Plaintiff.

3.    This alleged employee, or any employee of ASSET ACCEPTANCE, LLC, would not, and could not, have any personal knowledge, and thereby cannot attest to the accuracy or authenticity of any records allegedly purchased by Plaintiff as required by the MICHIGAN RULES OF EVIDENCE, RULE 602. In order for an Affiant to have any personal knowledge of any alleged account the Defendant may have established with HSBC BANK, NEVADA NA, it would require the individual creating the Plaintiff's Affidavit to be an employee of HSBC BANK, NEVADA NA. This individual is not. Therefore, the Defendant cites Lack of Knowledge of and by the Plaintiff.

4.    This alleged employee, or any employee of ASSET ACCEPTANCE, LLC, would not, and could not, have any personal knowledge, and thereby cannot attest to the accuracy or authenticity of any records allegedly purchased by Plaintiff as required by the MICHIGAN RULES OF EVIDENCE, RULE 602.  In order to have any personal knowledge of any alleged account the Defendant may have established with HSBC BANK, NEVADA NA, it would require the individual creating the Plaintiff's Affidavit to be an employee of HSBC BANK, NEVADA NA. This individual is not. Therefore, the Defendant cites Lack of Knowledge of and by the Plaintiff.

5.    This alleged employee, or any employee of ASSET ACCEPTANCE, LLC, would not, and could not, have any personal knowledge, and thereby cannot attest to the accuracy or authenticity of any records allegedly purchased by Plaintiff as required by the MICHIGAN RULES OF EVIDENCE, RULE 602.  In order for the Affiant to have any personal knowledge of any activity on any alleged account the Defendant may have established with HSBC BANK, NEVADA NA, it would require the individual creating the Plaintiff's Affidavit to be an employee of HSBC BANK, NEVADA NA. This individual is not, and could not have any personal knowledge of any actions taken by any predecessor(s)-in-interest on any alleged contract involving Defendant. Therefore, the Defendant cites Lack of Knowledge and Lack of Standing of and by the Plaintiff.

6.    This alleged employee, or any employee of ASSET ACCEPTANCE, LLC, would not, and could not, have any personal knowledge, and thereby cannot attest to the accuracy or authenticity of any records allegedly purchased by Plaintiff as required by the MICHIGAN RULES OF EVIDENCE, RULE 602. In order for the Affiant to have any personal knowledge of any alleged account the Defendant may have established with HSBC BANK, NEVADA NA, it would require the individual creating the Plaintiff's Affidavit to be an employee of HSBC BANK, NEVADA NA. This individual is not. Therefore, the Defendant cites Lack of Knowledge of and by the Plaintiff.

    Furthermore, this individual would either need to be a direct participant, personally present as a first-hand witness or an actual party to the signing and transfer of any alleged Purchase Agreement and/or Bill of Sale between HSBC BANK, NEVADA NA, and ASSET ACCEPTANCE, LLC in order for this statement to be truthful and accurate. This would also require an employee of HSBC BANK, NEVADA NA, who was a direct participant in any such Purchase Agreement and/or Bill of Sale to confirm this employee's direct participation in said transaction. Therefore, the Defendant cites Lack of Knowledge and a Lack of Standing of and by the Plaintiff.





    Signed this 4th Day of April, 2013.




    ________________________________
 

Share this post


Link to post
Share on other sites

Drop number 7, "Deny". This isn't a response to their affidavit, it is an affidavit of your own. Yes, it is meant to counter theirs but should stand up on its own. It should read as independantly as thiers. Follow?

Share this post


Link to post
Share on other sites

Hi All!

 

I have revised the Counter Affidavit above. Any advice or tips on what to add/subtract, or re-wording would be greatly appreciated!!

 

THANKS!!

buddyapple

Share this post


Link to post
Share on other sites

Drop number 7, "Deny". This isn't a response to their affidavit, it is an affidavit of your own. Yes, it is meant to counter theirs but should stand up on its own. It should read as independantly as thiers. Follow?

In other words...Your numbered items don't have to rebut theirs (Plaintiff's)

Also, simular to what I sent you in the pm...

You need to say things like,

"I did not receive billing statements from joe blow"

"I did not receive notice of assignment from joe blow"

"I did not have an account with joe blow" etc.

" I do not have an "agreement" in my posssesion".

"I did not have an account with joe blow."

Just my opinion here, but your counter-affidavit seems to be more of an argument that would be used in a motion to dismiss.

 

For the sake of argument...

Let's say, that somehow, later, you get the Plaintiff's alleged affidavit striken...(Plaintiff's affidavit is Hearsay)

And YOUR AFFIDAVIT is the only one the court is going to allow at trial ...

What you have stated in Your counter-affidavit above.... only argues THEIR affidavit.

 

Your affidavit NEEDS to state the IMPORTANT FACTS of your knowledge and belief of this alleged debt.

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.
Sign in to follow this