Help! Motion For Summary Dispositon Attack in Michigan

[Boo313]

Who is the named plaintiff in the suit? JDB Hirishberg Acceptance Corp

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)Hirshberg Acceptance Corp. The plaintiff is an attorney

 

3. How much are you being sued for?$1,152.42 includes court fees

 

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

 

5. How do you know you are being sued? (You were served, right?)Never received an original letter to validate. Just served and the server did not take my signature.

 

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

 

7. Was the service legal as required by your state? Not sure, he gave me the letter and walked away. He did not ask for my signature.

 

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? I'd never heard from them prior to the complaint. If they sent a letter, I never received it.

 

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)March 2007

 

11. What is the SOL on the debt? To find out: 6 years in Michigan

 

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  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Motion of Summary Judgement filed May 16, 2013. Pre-tail orders gave the May 27, 2013 for all motions, dispositive or oterwise, must be filed with court.

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)The debt was never on my credit report. I did not have time to dispute except for the ANSWER. I don't think I did that right because immediately the date was set for pre-trail.

 

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. I mention debt validation in my ANSWER. However, I don't feel I did it correctly.

 

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? We've gone through all Discovery in which I didn't do correctly because I didn't give them a admit/deny. However, I asked them questions regarding my

 

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. They just gave me a complaint letter and the time I had to respond. No affidavit or anything.

 

Later, I received a date for the pre-trail. I mentioned lack of information or knowledge and the judge immediately set a trial date. One mistake I made was when the Plaintiff called me into the hall and asked me if I ever had an account with American Express and I said "No." I told him I wanted to discuss this in the courtroom. That's when I mentioned the above statement.

Now, JDB has issued a MSJ because I admitted to most of the Admissions questions regarding my residence and the fact that I did have an account with AE. My concern is that Hirishberg subpoenaed my bank account before they made contact with me about the debt. Before they contacted me, they had my bank account information, my driver's license, and statements from AE. My bank account showed where I had paid electronically on the account. I was never told that my bank account had been subpeonaed until a year later. They sent it to me at the end of March 2013. Then they said in the MSJ that they supeonaed my account 3/21/13 which is not true and if they did, they didn't inform me. Also, it would have been their second subpeona because the first was done in 2012 before they made contact with me. The  Is that fraudulent? They even have a copy of my application from the bank with my personal info and signature for when I opened the account. It also states my social security number and my driver's license no. That's how they received most of my info. The Bill of Sale from the OC was not signed and none of the other Bill of sales had affidavits. During Discovery they did not submit a signed contract by me, no contract with Hirshberg and OC. I asked for the Subpoena order, they stated alread enclosed, but it was the one from 2012. I asked for the Bill of Sale and Assignment of Account in question, issued to the Plaintiff by OC just to see if they needed to make a correction because the OC signed to someone else but without signatures or affidavit (at least it wasn't included with the copy of the Bill of Sales sent to me). This is where I am. I have until May 22, 2013 or May 24, 2013 to finish this. Please help me and thank you all for taking the time to hear my plead.

[shellieh98]

Well you have only given us one day to try and help you out. There is a triad of issues that do need a trial, so you will be spending the rest of the day making an opposition to the MSG so you can then work on your defense for trial. Lucky for you bmc100 already has a sticky thread done with step by step instructions that you can use, and redact for your specific. I would suggest you read this thread, and do your best. When you beat this MSj, come back and post in this thread for advice on what someone would do to defend for trial. Here is the thread you need. http://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/

[Boo313]

Thank you, Shellieh98. I know, that's sad. I've been trying all week on how to post and thanks to Peanut who gave me step by step instructions. I have been reading up on bmc100 and yes, he has good info. Now, I'm getting reading to read it again and again. I stayed up all night. I finally found the site with the Rules for Civil Procedures in Michigan.. That was a break. Thank you again and Yes, I will post the outcome..

[shellieh98]

Just make sure you challenge each piece of evidence. As far as the subpoena of bank records go, read your rules carefully. In colorado it is illegal for the plaintiff to do that without a court order. I would think it would be illegal if yours did it before there was a suit against you. Some states allow any officer of the court to do that (ie. lawyer) but it may have been illegal for him to do so before lawsuit commenced, so check your rules carefully, if you find something, ask to exclude that evidence.

If i had denied the debt, it would have been because i am not sure if this was my account. I once had an account with them, but i do not know if this is the same one, and therefore i need more information, and i need plaintiff to prove standing.

I had a bill of sale in my lawsuit that did not reference my account number or name on its face. It also said it was bound by the terms of the purchase agreement, but they did not include that agreement. I needed it, and they would not provide it.

They also sent me a self serving data sheet redacted that had my name, but I don't know where it came from. I don't know who created it, and how it has to do with the bill of sale, the bill of sale said nothing about this paper that looks like someone typed it up in Microsoft excell.

[shellieh98]

Oh and in my case also, the bill of sale was to one company, but it was another company suing me. I objected because there was not any bill of sales to the other companies (3 of them) to show how the plaintiff got the account. I actually admitted the debt to the oc, but stated I had settled with the oc. ( it was true). They did have an un notarized affidavit assigning to each company in succession, but no bill of sales, and my name was not on that affidavit either, so how would I know if my account was in that pool of accounts?

They did not LAY A PROPER FOUNDATION and therefore did not prove standing to sue.

Hmm your case is similar, so go look up some case law and apply it.

[bmc100]

Tell us what evidence they attached to the MSJ.

 

Tell us exactly what request for admissions they sent to you during discovery. To which adimissions did you admit to.

 

Make sure it is easy to follow along with, I only picked up on 50% of your first post.

[bmc100]

How did they get a copy of your bank statements? You mentioned a subpeona. Did you get a copy of the subpeona when it was issued?

[Boo313]

Wow! Thanks for the info. Your case does sound similar. Do you know where there is a place on the internet where you can search for such cases or do I need to work my way to a Law Library? I really want to hit them on the subpeona and the affidavit from the OC that had no signature. Can I deny any claims now since I admit to owing the OC not the JDB. I only admitted it because they subpeonaed my account with the proof that I had paid on the account electronically.

[Boo313]

I didn't get a copy of the subpeona until sometime in March of this year. They had already subpeonaed my account prior to the pretrail. The date on the subpeona says April 4, 2012. When I received it, It came alone in the envelop. It didn't show where it was sent to my bank via letter attached until they sent it after they issued the MSJ. They subpeonaed my account before I even knew they had my account. When I received the letter, the fact had already taken place. I had no opportunity to motion. They did all of their discovery before they even informed my of having my account. That's the law that I'm looking for. If I can find that they violated my rights, then they will have no evidence to stand on. They threw all of my personal information in my face, I'm talking as soon as I returned the admit to them. Shoot, I didn't have to admit it was evident. However, I owed AE not them. The affidavit is another fact. It was dated September 2012. They sent their complaint to me November 7, 2013.

[shellieh98]

I would pay careful attention to the above poster, he's your man. Case law I was referring to is actually in his thread, and if you go to google, then type in scholar, you might be able to pull up those cases right in the comfort of your own home.

[shellieh98]

You mean nov. 7 th, 2012.?

[Boo313]

Oh, I forgot to mention. I went to the district court thinking that I was subpeonaed. I later looked carefully at the subpeona and it was just a copy of what they sent my bank. If it was sent in March as they stated, why would I get a copy in April and not at the same time so I could contest. Also, like i mentioned, the subpoena was dated April4, 2012 but signed March 21, 2013. However, I know they subpoenaed me last year. How else would they have had all of my personal information.

[bmc100]

you stated that there was nothing atached to the complaint...now there is an affidavit. Was it just attached to the MSJ?

 

Who was it from.

 

Further, this JDB is not a law firm. Look up the name of the attorney by their P number on the MI Bar association membership directory.

 

Last, how could they find out your bank information? It is highly unusual for a JDB to receive banking information as part of the purchase. I highly doubt they would purchase this information over such a small amount.

[Boo313]

sorry typo, yes they sent the complaint November 2012 and I answered 12-11-2012. Pre-Trial Conf was held 2/13/2013

by 2/15/2013 JDB filed Exhibit list which included the Defendant's accound statements and copies of statements displaying electronic payments made from my checking account.

[Boo313]

ok, I'm getting ready to send the discovery info. The attorney is Crystal M MenZ Hirshberg Acceptance Corporation Attorney for Plaintiff. Her office is in the same room. She's actually the JDB.

[Boo313]

She is licensed in Michigan. I looked her up when I first realized that I was dealing with an attorney which was after my answer had already been submitted.

[Boo313]

affidavit was not attached to my copy of the complaint.

[Boo313]

JDB is Hirishberg Acceptance Corp, However Crystal M Menz is the JDB. It's her company.

[Boo313]

They even have a picture of my Driver's license from 6 years ago.

[bmc100]

was there an affidavit from the bank where they supposedly subpeonaed your statements showing where they received these statements from and was their someone fronm the bank providing in writing that these statements were authenticated?

 

If not, it is hearsay.

[bmc100]

Read Michigan compiled laws (MCL) 600.6001, MCL 600.6002(2) - which states:

 

Executions shall be made returnable not less than 20 day but no more than 90 days.

 

You need to see which officer served the subpeona on the bank.

 

MCL 600.6001 states that bank statements can be subpeonaed only after judgment. This attorney is trying to pull a fast one on you.

 

this is from Macomb County, but readhttp://macombcountymi.gov/prosecutorsoffice/pdf/restitution-discovery.pdf

 

The subpeona has to be served upon you, not the bank and only after judgment to collect. US mail does not render proper service of a subpeona per MCL 600.6001

[Boo313]

Plaintiff's First Request For Admissions and Request For Production of Documents To Defendant

1. Please admit that the Defendant currently resides at: I admit because it was my current address

2. Please admit that the following payments were made on th eaccount by the Defendant or by another on the Defendan'ts behalf as set forth and applied on each respective date, and as is set forth in Plaintiff's Exhibit List, proposed Exhit 3 and 4.

JDB had sent me a copy of my bank statements with the trans prior to this admission therefore, I admitted because It was there in their face, via the subpeona.

3. Please admit that the following payments made from XXXXXX bank acount were made on the account by the Defendant or by another on the Defendant's behalf as set forth and applied on each respective date, and as is set forth in Plaintiff's Exhibit List, proposed Exhibit 3 and 4: Admit

 

4. Please admit for the follwing months the Defendant resided at: I denied because I wasn't liveing there, I didn't change my address because relatives were living there.

 

5. Please admit for the following months the Defendant received mail at: XXXXXXXXXXX Admit

 

6. Please admit that the Defendant utilized the credit extended to her on the account. I left blank I didn't understand the law at the time.

 

7. Please admit that the Defendant accepted the terms of the Credit Card Agreement b utilizing the credit exteded to her. I just wrote I've not agreed to any terms.

 

8. Please admit that the Defendant did not change her address or record with OC at any time from August 2006 to November 2007. I admit

 

9. Please admit that the Defendant's cocial security number is XXXXXXXXX I admit only because they had already obtained via subpeona on my bank account.

 

10. Please admit that for the following months, the Defendant maintained a banking account at XXXXX (the months were the months found on my statements) therefore, I admit.

 

SECOND REQUEST FOR ADMISSIONS AND REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT

 

1. Please admit that the Defendant maintained an account or accounts at XXXXX. I admit

 

2. Please admit that the signature appearing on Plaintiff's proposed Exhitit 5, XXXX Bank Application, in Plaintiff's Amended Exhibit List is the signature of the Defendant. Admit

 

3. Please admit that the documents entitled "Statement of Accounts" as set forth in Plaintiff's Amended Exhibit List proposed Exhibit 6, are true and accurate replicates of the original "Statement of Accounts" received by the Defendant. Admit

 

4. Please admit that the following withdraws were made for payment to "OC" from the Defendant's XXXX  bank account, as set forth in Plintiff's Amended Exhibit List proposed Exhibit 6: I admit because they already had my info when they subpoeaned my account.

 

5. Please admit that for each of the following months, the Defendant received mail at PO Box XXXX in D Michign. I admit and this was an old address in which my bank statements were being sent.

 

6. Please admit that for each of the follwing months, the Defendant received her monthly XXXX bank Statement of Accounts at the PO Box. admit

 

7. Please admit that the Defendant did have an AE Credit Card account: Admit

 

8. Please admit that the Defendant did have an AE CC account numberXXXX: I admit, it was on my statements that they sent me.

 

I know I probably messed myself up. Time was running out, I couldn't afford an attorney and they already showed me prior to the discovery that they had all of my information. I also messed up by not sending them an admit /deny...I just asked them a few questions as to how they received all this info and of course they blew off their answers.

[Boo313]

No, I never received anything regarding the subpeona until recently. End of March. Subpeona stated time and date for April 4,2012 at 4:30 different location and dated March 21, 2013. They had all of my info way before March 2013 or discovery

[Boo313]

I received nothing from the bank regarding a subpeona.

[shellieh98]

No no no. I would not admit to no 2 if it were me. I would say defendant does not have enough information in the matter to admit or deny, therefore denies. Or something to that effect.

If you can get the improper subpoena and bank records excluded, then this admission will support their case. Make them prove their case without any help from you.