mrdearborn

Two cases, 4-5 years old in MI, back in court! Help needed!

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CASE #1

 

TIMELINE OF EVENTS

 

-Late December 2008: JDB submits complaint to court

 

-Late January 2009: I was allegedly served with summons and complaint

 

-Late February 2009: JDB is awarded judgment against me for a little north of $1000

 

-April 2009: an order to seize property Is granted by the court

 

-Summer of 2009: I begin receiving multiple phone calls a day from JDB telling me that I owe them money. They told me that they would show up to my house with a Sheriff, seize my assets, and take my money from me if I didn’t pay them.  I’m barely 20 at the time and realistically have no knowledge of the law on such matters and being the scared young adult, I ignore them.  (side note: all calls are from the same number, sometimes being JDB, and other times being their scumbag attorney. Both have the same address, and same phone number. Also, the “collections manager” employed by JDB who swears in the affidavit that he is the “Keeper of Records” for JDB sent me a letter in April 2011 with his name and signature, with the attorney’s letterhead. I am almost confident this is a violation of both federal and state law, someone, please advise on this and what I can do as a possible countersuit for violation of such laws)

 

-Calls stop in the winter of 2009 and being again in summer of 2010. Then stop in the winter, and begin again early 2011 all the while sending me periodic “settlement offers.” They also note in the letters that I should contact them to prevent legal action against me, even after they already had a judgment against me.

 

-In early 2011, I get 8 calls in one day, and after threats to take my wages, I give in and agree to pay them. I ask for a letter stating the original creditor, amount due, and balance, which they provide.

 

-Letter they send me references ELAN as OC, but all court documents state COMERICA.

 

-I pay them monthly payments for about a year, and due to financial hardship, I stop.

 

-December 2012: JDB begins garnishing my wages.

 

-JDB is now paid off, and no further amount is due.

 

-December 2012 is when I actually realized that they had a court judgment against me because my employer sent me a copy of the writ of garnishment. I go to the court, request the papers associated with the case, and file a motion to set aside default judgment.

 

-Fast forward to last week, JDB, because they have “their” money, doesn’t show up, and judge sets aside the default judgment. Judge tells me to file responsive pleadings within 14 days.

 

HERE IS THE ORIGINIAL COMPLAINT:

 

JDB through their scumbag attorney

V

MrDearbon

 

1.       The amount in controversy is within the jurisdiction of this court and venue is proper.

2.       Defendant entered into a Credit Card Agreement with Plaintiff’s assignor, COMERICA

3.       Plaintiff and/or its assignor completed performance under the terms and conditions of the agreement.

4.       Defendant has defaulted under the terms and conditions of the contract by failing to pay as promised.

5.       There is a presently due and owing to Plaintiff in the sum of $9xx.xx

WHEREFORE, Plaintiff prays for the judgment in the amount of $9xx.xx, plus costs, interest and attorney fees.

 

HERE IS THE AFFIDAVIT OF ACCOUNT

 

I, John Doe, being duly sworn , depose and say that I am keeper of records for JDB, and if called as a witness can testify competently to facts contained herein; that the account of MrDearborn, is taken from the books and records of the corporation and that, within my knowledge the balance of $9xx.xx, as of late 2008 (actual date omitted), shown due is true and correct, and that said balance is justly and owing to JDB and that there is no offsets or counterclaims against the same.

 

This, to me, seems to be the easier of the two. Nothing else is attached to the complaint, not even an attempt at a BOS.

 

Here is my ANSWER:

 

1.       Defendant neither admits nor denies the allegations contained in paragraph 1 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

2.       Denied. Plaintiff has failed to submit such evidence of “credit card agreement.”

3.       Denied. Plaintiff has failed to submit such evidence of “terms and conditions of agreement.”

4.       Denied. Plaintiff has failed to submit such evidence of “terms and conditions of contract.”

5.       Denied. Plaintiff has failed to submit such evidence of such debt owed. Furthermore, Plaintiff has failed to submit evidence of assignment of debt.

 

Please, tweak this if needed. This is my first time.

Also, I am going to need help filing an affidavit as I do not know how to.

Should I also file a motion to dismiss? How do I write one?

A big thank you in advance!

 

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

 

 

CASE #2

TIMELINE OF EVENTS

 

-March 2010: JDB submits complaint to court

 

-April 2010: I was allegedly served with summons and complaint (process server dates proof of service as a Saturday, in actuality, it was a Sunday, also, gave a completely different description of me than he did in Case #1)

 

-June 2010: JDB is awarded judgment against me for a little north of $1000

 

-January 2012: JBD seizes money from my bank account. It’s not a primary account, so it goes unnoticed until about March. When noticed, I contacted JDBs scumbag attorney to ask what right they had to take the funds. They said they had a court judgment against me, and wanted to prevent further inconvenience and wanted to set up a payment plan. I declined and said that I wanted to see paperwork and if legit, I would sign an agreement and an amount. Lady on the phone asked if $100 was ok, I said I won’t agree to anything until they sent me some paperwork.

At the same time, they requested all information from my bank with a subpoena.

 

Lo and behold, 2 weeks later, $100 from my account goes missing. They took the payment through ACH, without me agreeing to it. I still have the original paper asking for my signature. I later closed the account, and due to life, just ignored what had happened.

 

-January 2013: JDB begins garnishing my wages.

 

-I go to the court, request the papers associated with the case, and file a motion to set aside default judgment.

 

-Fast forward to last week, JDBs scumbag attorney shows up to court. Court officer advises me to have a private conversation with him in the hallway. Attorney tells me I have a small amount left, and that he would consider it paid in full, I decline and tell him I want my day in court. He shows me a statement, not sure if from checking account or CC, but CHASE, but he says there are two ACHs to them, so more than likely checking. Either way, I tell him no, I want my day in court.

 

 

Judge grants my motion to set aside default judgment. Attorney looks furious. His dad runs the firm, and is probably going to chew his a$$ out.

 

Judge tells me to file responsive pleadings within 14 days.

 

An amount is still due to be garnished from my wages, please explain my options considering the judgment was set aside.

 

Attached are pictures of Complaint and Affidavit.

post-105140-0-71886400-1365404577_thumb.post-105140-0-87547400-1365404579_thumb.post-105140-0-19709100-1365404581_thumb.post-105140-0-48576100-1365404582_thumb.post-105140-0-61043100-1365404583_thumb.post-105140-0-73605400-1365404584_thumb.post-105140-0-78788400-1365404585_thumb.post-105140-0-14224800-1365404587_thumb.post-105140-0-31592600-1365404588_thumb.post-105140-0-56595400-1365404589_thumb.

 

Here is my answer:

 

 

DEFENDANT’S ANSWER

Now comes the Defendant, MrDearborn (hereinafter referred to as “Defendant”), in Pro Per, and states the following for his Answer to Plaintiff’s Complaint:

GENERAL ALLEGATIONS

1.      Defendant neither admits nor denies the allegations contained in paragraph 1 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

2.      Defendant neither admits nor denies the allegations contained in paragraph 2 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

3.      Denied. Plaintiff has failed to submit such proof of use of alleged credit card.

4.      Denied. Defendant has no such possession of alleged account statements, terms and conditions of the contract and the application or solicitation for credit.

5.      Defendant neither admits nor denies the allegations contained in paragraph 5 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

6.      Denied. “Assignment must clearly establish that Respondent’s [the Debtor’s] account was included in the assignment. A general assignment of accounts will not satisfy this standard and the full chain of valid assignments must be provided, beginning with the assignor where the debt originated and concluding with the Petitioner [i.e., the assignee-creditor].” MBNA America Bank, N.A. v Nelson, 15 Misc 3d 1148;841 NYS2d 826; 2007 WL 1704618 AND Bullock v Worldwide Asset Purchasing, LLC, 2008 WL 3159921.

7.      Denied. Defendant realleges the same as paragraph 6.

8.      Denied. Defendant realleges the same as paragraph 6.

9.      Denied. Defendant realleges the same as paragraph 6.

10.  Defendant neither admits nor denies the allegations contained in paragraph 10 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

 

COUNT I – ACCOUNT STATED

11.  Defendant restates and realleges his answers to paragraphs 1 through 10 of Plaintiff’s Complaint as though fully set forth herein.

12.  Defendant neither admits nor denies the allegations contained in paragraph 12 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

13.  Defendant neither admits nor denies the allegations contained in paragraph 13 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted. Furthermore, “Exhibit ‘A’” of Plaintiff’s Complaint is not sufficient evidence of a contract.

14.  Denied. No such evidence of use of alleged credit card or any such monthly statements has been documented in Plaintiff’s Complaint.. Defendant realleges same as paragraph 6.

15.  Denied. No such evidence of a “terms of contract” has been documented in Plaintiff’s Complaint.

16.  Denied. No such evidence of a “terms of agreement” has been documented in Plaintiff’s Complaint. Furthermore, “Exhibit ‘A’” of Plaintiff’s Complaint is not sufficient evidence of an agreement.

17.  Denied. Defendant realleges same as paragraph 6.

18.  Denied. Defendant has no such possession of alleged account statements, terms and conditions of the contract, or the application for credit.

19.  Denied. No such evidence of a “terms of the agreement” has been documented in Plaintiff’s Complaint. Furthermore, Plaintiff has no right to declare any balance due without clearly establishing that said account was included in the assignment. MBNA America Bank, N.A. v Nelson, 15 Misc 3d 1148;841 NYS2d 826; 2007 WL 1704618 AND Bullock v Worldwide Asset Purchasing, LLC, 2008 WL 3159921.

COUNT II – COMMON LAW ACCOUNT STATED

20.  Defendant restates and realleges his answers to paragraphs 1 through 19 of Plaintiff’s Complaint as though fully set forth herein.

21.  Defendant neither admits nor denies the allegations contained in paragraph 21 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

COUNT III – BREACH OF CONTRACT

22.  Defendant restates and realleges his answers to paragraphs 1 through 21 of Plaintiff’s Complaint as though fully set forth herein.

23.  Defendant neither admits nor denies the allegations contained in paragraph 23 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

24.  Denied. No such evidence of use of the alleged credit card has been documented in Plaintiff’s Complaint. Furthermore, Defendant has no such possession of “the Contract” or “terms and conditions.”

25.  Denied. No such evidence of alleged monthly bills, monthly payment due, or total balance due has been documented in Plaintiff’s Complaint.

26.  Denied. No such evidence of alleged contract has been documented in Plaintiff’s Complaint. Furthermore, Defendant realleges same as paragraph 6.

27.  Denied. Defendant realleges same as paragraph 6.

COUNT IV – MONEY HAD AND RECEIVED AND/OR MONEY PAID

28.  Defendant restates and realleges his answers to paragraphs 1 through 27 of Plaintiff’s Complaint as though fully set forth herein.

29.  Defendant neither admits nor denies the allegations contained in paragraph 29 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

30.  Denied. No such evidence of use of the alleged credit card has been documented in Plaintiff’s Complaint.

31.  Denied. Defendant realleges same as paragraph 6.

COUNT V – UNAUTHORIZED USE OF CREDIT CARD AND RELIANCE ON APPARENT IR ISTENSIBLE AUTHORITY AS NEGLIGENT WAIVER OF RIGHT TO DISPUTE THE BALANCE DUE

32.  Defendant restates and realleges his answers to paragraphs 1 through 31 of Plaintiff’s Complaint as though fully set herein.

33.  Denied. No such evidence of “contract terms and conditions” has been documented in Plaintiff’s Complaint.

34.  Defendant neither admits nor denies the allegations contained in paragraph 34 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

35.  Defendant neither admits nor denies the allegations contained in paragraph 35 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

36.  Defendant neither admits nor denies the allegations contained in paragraph 36 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

CONDITIONS PRECEDENT

37.  Denied. Defendant realleges same as paragraph 6.

ATTORNEY FEES

38.  Denied. No such evidence of “terms of the cardholder agreement” has been documented in Plaintiff’s Complaint.

WHEREFORE, Defendant respectfully requests that this Court enter a judgment in favor of Defendant and against Plaintiff, dismissing Plaintiff’s Complaint against Defendant with prejudice, and awarding Defendant’s monies be returned and any other relief this Court deems appropriate. 

 

I need help responding to the affidavit, and should I also file a motion to dismiss along with the answer? How would I do so?

Again, thanks in advance guys! Any help will be appreciated.

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I believe You will also need to file a counter claim against them for the amounts you have already paid plus your costs.

 

Make sure you submit a counter affidavit of your own with your answers, or Plaintiff's affidavits can be considered "Prima facie" evidence for an account stated claim.  Read MCL 600.2145  .

 

There is a good thread here at this site targeted to Michigan defendants..

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

Here is a link to get Rules of Evidence, Procedure etc.  for Michigan courts

http://courts.mi.gov/courts/michigansupremecourt/rules/pages/current-court-rules.aspx

 

Link to understanding the legal process and How Courts Work..

http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/pretrial_conference.html

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I've read most of bmc100's posts, which is what got me to where I am now. The answer seemed pretty simple, but I just want to be sure that my affidavit and MTD are as correct as can be.

Also, for the counterclaim, which form would I use? And what's the process for it here in Michigan.

(Sorry, I work two jobs and time is rare to come by)

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1.       Defendant neither admits nor denies the allegations contained in paragraph 1 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

 

Take out all the "neither admits or denies the allegations, and instead put "Defendant lacks sufficient information of knowledge to form a belief as to the truth of the matter, therefore Defendant Denies"

 

I am surprised you got the judgements vacatated, usually you only have 3mo to a year depending on your state.  I am not sure what form you would use for counterclaim for Mi, but go to the courts clerks office and ask for a cross counter claim.  be sure and include charges from your bank for any overdrafts they may have caused.  Search up "dueling affidavits"s" in this fourm and you can find some ideas on what to use.  Next go here http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Pages/current-court-rules.aspx and read up on your states civil procedure. You may be able to find the cross counter claim form on that site also for Mi. 

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Thanks Shellieh!

I grabbed the "neither" claim from a lawsuit in Michigan's eastern district and felt it was good, but your idea seems to make more sense.

I think the whole reason it was vacated was because I could prove that I was not served. The judge asked the plaintiffs attorney to read the description he noted, and when he read the word "tall" the judge said that it was sufficient and he stop reading and referred to me as "short or average height."

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1.       Defendant neither admits nor denies the allegations contained in paragraph 1 of Plaintiff’s Complaint because he lacks sufficient information of knowledge to form a belief as to the truth of the matters asserted.

 

Take out all the "neither admits or denies the allegations, and instead put "Defendant lacks sufficient information of knowledge to form a belief as to the truth of the matter, therefore Defendant Denies"

 

I am surprised you got the judgements vacatated, usually you only have 3mo to a year depending on your state.  I am not sure what form you would use for counterclaim for Mi, but go to the courts clerks office and ask for a cross counter claim.  be sure and include charges from your bank for any overdrafts they may have caused.  Search up "dueling affidavits"s" in this fourm and you can find some ideas on what to use.  Next go here http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Pages/current-court-rules.aspx and read up on your states civil procedure. You may be able to find the cross counter claim form on that site also for Mi. 

Its called the delayed discovery rule.  

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Thanks Shellieh!

I grabbed the "neither" claim from a lawsuit in Michigan's eastern district and felt it was good, but your idea seems to make more sense.

I think the whole reason it was vacated was because I could prove that I was not served. The judge asked the plaintiffs attorney to read the description he noted, and when he read the word "tall" the judge said that it was sufficient and he stop reading and referred to me as "short or average height."

Post the process servers affidavit, if you can prove he lied he can be sued for fraud, and have to answer to the court for fraud upon the court. Thia also leave the plaintiff and atty hang out to dry for the same charges. Abuse of Process, Negligence, and Negligent Infliction of Emotional Distress. Vicarious liability. Punitive damages can also be awarded.

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Post the process servers affidavit, if you can prove he lied he can be sued for fraud, and have to answer to the court for fraud upon the court. Thia also leave the plaintiff and atty hang out to dry for the same charges. Abuse of Process, Negligence, and Negligent Infliction of Emotional Distress. Vicarious liability. Punitive damages can also be awarded.

 

It would have to be proven the plaintiff and attorney knew the process server lied. 

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Post the process servers affidavit, if you can prove he lied he can be sued for fraud, and have to answer to the court for fraud upon the court. Thia also leave the plaintiff and atty hang out to dry for the same charges. Abuse of Process, Negligence, and Negligent Infliction of Emotional Distress. Vicarious liability. Punitive damages can also be awarded.

Before I ever sought to file a motion to set aside, I searched for days on how to sue a process server and I couldn't seem to find anything. Any idea how?

I can prove he lied. He "served me" in both cases, according to his description, in 2009 I was 205, medium height, and built with glasses (I don't wear glasses). And in 2010, I was 205, tall and medium build. It defies all logic.

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I would talk to a consumer attorney on this one. It may be worth doing. First thing that comes to mind is the statute of limitations. If you were not served, I think it keeps running. Maybe it ran out altogether. If they sue on a time barred debt it is an FDCPA violation and the attorney gets his fee from them. I don't normally pitch lawyers to people, but this may be a little too complicated for you to handle. With the judgment vacated and perhaps no way for them to sue you again, you are entitled to get back all the money they took from you. Add in the fraudulent service, and you may make some money here.

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Even stranger, a search of the notary public on Michigan's gov website shows that her commission expired in 2007, and wasn't renewed until 2013.

Affidavits were notarized I'm 2010, and from other documents submitted recently, it seems as if she's an employee for JDB's attorney.

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There you go, more ammo. Attorneys can't testify in their own cases.

 

 

An attorney's affirmation generally cannot advance substantive proof (Key Bank of Me. v. Lisi, 225 AD2d 669, 669 [2d Dept 1996] ["affirmation of . . . attorney who had no personal knowledge of the facts . . . did not constitute proof in admissible form and it (is) without evidentiary value"]). Citibank, NA v. Martin, 11 Misc. 3d 219 - NY: City Court, Civil Court 2005.

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