cyssm

Inexperienced, a little panicked, and in need of guidance! Being sued in Michigan...

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Greetings all,

 

I'm a little new to both being sued and contributing to community forums, so please have mercy. I fear recent happenings are a little above my head, so here it goes.

 

My fiance and I awoke excited to have what seemed like our first relaxing Sunday in a while. This excitement soon turned to confusion, however, as an early morning guest shattered these expectations with the delivery of "official legal documents." It turns out we had just been served with papers indicating impending civil action with a collection agency pursuing a previous credit account she had with a retail store, and choas has since ensued (we had received no prior communication, so one can imagine the surprised to now having a law suit in front of us).

 

Now I am admittedly neither a lawyer nor any semblance of a legal services professional. I've spent the remainder of today (all day...) reading and researching amongst this site and others, and will do my best to provide what I've gathered are the pertinent facts and documents we have at our immediate disposal. Seeing as it's still Sunday, we have not yet responded or otherwise taken action reagarding what is now in our possesion, so (PLEASE!) any guidance and assitance is very much appreciated. As an endnote, I am in the process of starting a new job and we've been scraping by on one income for the past little while, so I fear legal fees are out of our realm at the moment and will be going this alone. Thank you kindly!

 

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

 

1. Who is the named plaintiff in the suit?

PORTFOLIO RECOVERY ASSOC., LLC ASSIGNEE FROM GE CAPITAL RETAIL BANK

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

Mary Jane Elliott PC P32732

Attorney for Plaintiff

Novi, MI

3. How much are you being sued for?

Less than $1000

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

GE CAPITAL RETAIL BANK

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

In person delivery of Summons & Complaint and Affidavit documents

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

In person

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

Yes* *The individual who served the papers only asked for my fiance's signature, and when asked about dating the document she was told only the signature was needed. I only realized this potential oversight after the fact...

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, Saginaw County

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

She believes more than a year, less than two years

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

Six years in the State of 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).

Thus far, to our knowledge, only suit served

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

No, this is our first knowledge of collection agency pursuit

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?

Response to the Summons & Complaint is required within 21 days. No other documents, other than accompanying affidavit, have been received.

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

The only accompanying document was an affidavit from the Plaintiff claiming rights to the outlined outstanding debt. I have included the two page Summons & Complaint with attached Affidavit below.

 

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

 

SUMMONS AND COMPLAINT (Pg 1)

 


(Plaintiff’s name)

PORTFOLIO RECOVERY ASSOC., LLC

ASSIGNEE FROM

GE CAPITAL RETAIL BANK 

 

(Plaintiff’s attorney)

MARY JANE M ELLIOTT P.C.

BY: MARY JANE M. ELLIOTT P32732

Novi MI

 

 

(Defendant’s name)

JOE BLOW

 

123 DEFRAUD WAY

SOMEWHERE MI


 

SUMMONS – NOTICE TO THE DEFENDANT

  1. You are being sued.
  2. YOU HAVE 21 DAYS after receiving this summons to file a written answer with the court and serve a copy on the other party or take other lawful action with the court.
  3. If you do not answer or take other action within the time allowed, judgment may be entered against you for the relief demanded in the complaint.

[issued: 5-7-13*]         [This summons expires: 8-6-13]          *Served on 5-19-13

 

COMPLAINT – General Civil Cases

There is no other pending or resolved civil action arising out of the transaction or occurence as alleged in the Complaint

 

 

 

SUMMONS AND COMPLAINT (Pg 2)


PORTFOLIO RECOVERY ASSOC., LLC

ASSIGNEE FROM

GE CAPITAL RETAIL BANK

(Plaintiff)
vs.
JOE BLOW

(Defendant)
--------------------------------------------------
Mary Jane
Elliott
PC P32732

Attorney for Plaintiff

24300 Karim Blvd
Novi, MI

1. This cause of action arose within the jurisdiction of this Court in the County of XXXXXX.
2. Plaintiff's PORTFOLIO RECOVERY ASSOC., LLC predecessor in interest is GE CAPITAL RETAIL BANK.
3. Plaintiff assignor allowed Defendant to charge goods and or services on open account, and upon Defendant's promise to pay for same.
4. Plaintiff's Assignor sent statement on account number xxxxxxxxxxxxxxx to the Defendant who did not dispute the charges or object within a reasonable time.
5. Defendant has not paid the balance owing on the account, despite Plantiff and Paintiff's Assignor demands for payment.
6. Defendant's failure to pay has resulted in default on the account.
7. Plaintiff's assignor has completed performance and rendered an account stated; Affidavit attched.
8. Defendant is now justly indebted to Plaintiff over and above all legal counterclaims, in the amount of $1xxx.xx

Plaintiff requests that this court enter judgement against Defendant in the amount of $1xxx.xx plus interest, cost and attorney fees.

 

I declare that the complaint information and attached is true to the best of my knowledge.

Date – April 16, 2013 Signature of attorney/plaintiff

Subscribed and sworn before me 4-16-13, Oakland Michigan

My commision expires 7-18-14 Signature of Deputy Clerk/Notary public

 

 

 

AFFIDAVIT (attached)

 

State of Virginia

City of Norfolk ss.

 

I, the undersigned, TYPED IN NAME, Custodian of Records, for Portfolio Recovery Associates, LLC hereby depose, affirm and state as follows:

 

  1. I am competent to testify to the matters contained herein.

 

  1. I am an authorized employee of Portfolio Recovery Associates, LLC, (“Account Assignee”) which is doing business at Riverside Commerce Center, 120 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representations and averments herein, and do so based upon a review of the business records of the Account Assignee and those records transferred to Account Assignee from GE CAPITAL RETAIL BANK/NATIONAL RETAIL STORE (“Account Seller”), which have become a part of and have integrated into Account Assignee’s business records, in the ordinary course of business.

 

  1. According to the business records, which are maintained in the ordinary course of business, the account, and all proceeds of the account are now owned by the Account Assignee, all of the Account Seller’s interest in such account having been sold, assigned and transferred by the Account Seller on DATE. Further, the Account Assignee has been assigned all of the Account Seller’s power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustment of said account, and the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever.

 

  1. According to the records transferred to the Account Assignee from Account Seller, and maintained in the ordinary course of business by the Account Assignee, there was due and payable from JOE BLOW (“Debtor and Co-Debtor”) to the Account Seller the sum of $1xxx.xx with the respect to account number ending in XXXX as of the date of DATE with there being no know un-credited payments, counterclaims or offsets against the said debt as of the date of the sale.

 

  1. According to the account records of said Account Assignee, after all know payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, Account Assignee claims the sum of $1xxx.xx as due and owing as of the date of this affidavit.

 

  1. Plaintiff believes that the defendant is not  a minor or an incompetent individual, and declares that the Defendant is not on active military service of the United States.

 

Portfolio Recovery Associates, LLC

ROBO-SIGNATURE

By: TYPED IN NAME, Custodian of Records

 

Subscribed and sworn to before me on 3-8-2013

NOTARY SIGNATURE

Notary Public

NOTARY STAMP

 

 

This communication is from a debt collector and is an attempt to collect a debt.

Any information obtained will be used for that purpose

 

 

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Thanks much BV80. I have reviewed the guide you suggested a few times, as well as several related posts from others in Michigan attempting to navigate the waters. I fear my problem at this point is a combination of naivete and over saturation. I understand the next steps on my end involve answering/responding (admit or deny allegations) to the summons received today. I also understand how important this round of communication can be, and don't want to miss/missunderstand/overrepresent any opportunities that are applicable (MTD and other motions, appropriate use of affirmative defense, counter affidavit, etc.). I suppose what I'm really looking for to clear the fog is guidance on the what my immediate next steps should be (so I don't miss any opportunities or if they've already passed me by) and what weight should be placed on those. I don't want to overcomplicate anything that should be kept clear and concise, or dedicate valuable time to something that's not going to apply. Thanks!

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Mary Jane M. Elliot is an attorney for bottom feeding junk debt buyers.

 

You have 21 days from receipt of the summons to supply the courts with a response to their initial complaint; use this time to read and understand the rules and don't respond until the last minute.

Pay particular attention to Chapter 1, Chapter 2 and the Michigan Rules of Evidence.

 

Their affidavit doesn't comply with MCL 600.2145 and, as such cannot be used as prima facie evidence against you.

 

You have two options here.

 

You can fight this out in court and win ......... or,  for the amount of their claim, you can force MJ into arbitration and let her tuck tail and run.

 

Here's a thread created by one of the members, Linda7, who is the expert on arbitration on this forum.

Here's another.

 

Let the members of this board know which avenue you wish to pursue and they will do their best to guide and help you through this.

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If you decide not to do ARB's then definately make sure you submit your Defendants Affidavit with your answers. 

 

Plaintiff definately has an untimely affidavit...

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It looks like the only cause of action is an account stated claim, but they may throw in a breach of contract claim as well. The contract claim for a JDB is too hard to prove, so it is looking like the account stated claim is their main focus.

 

You need to answer the complaint. If you read through my thread, there are 3 ways to answer an allegation. Further, you have to state a defense to each allegation as well. Failure to state a defense, means you waive a defense to that allegation. Make sure you put in your answer for allegation 7 that their affidavit does not comply with MCL 600.2145. Plaintiff's affidavit cannot by law serve as Prima Facie evidence of indebtness.

 

Next, even though their affidavit does not comply with MCL 600.2145 "Account Stated", you will want to submit with your answer a counter affidavit. In your counter affidavit, you are going to deny every aspect to their account stated claim. When you get to that point, I can help you with it. Make sure it is notarized.

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Welcome, cyssm. I can say from personal experience that MJE was tough, didn't give in or up, and still was defeated. Your experience may vary as the facts of your case are different and your fiancé's alleged debt is under $1000. Here is a link to a 1994 Michigan Bar Journal article by Morley Witus, "What is the Answer?--New Guidelines on How to Draft the Answer and Affirmative Defenses."  Some of it may make your head spin, but it contains some very helpful Michigan-specific info.

 

http://www.bsdd.com/Bio/MorleyWitus.asp

 

Your complaint is almost identical to ours. For instance, their first allegation at Paragraph 1, "This cause of action arose within the jurisdiction of this Court in the County of XXXX," was not true in our case; the alleged cause of action arose while living in another state prior to moving to Michigan. You need to read very carefully and look up any terms you do not understand, or ask. Panic and haste won't serve you well in this process--easier said than done, oh how I know. There are wonderful CIC members here to assist, including many Michigan battle-scarred warriors.

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