being sued, what's next?

[Flyerfan]

Did the admissions you sent them include one particularly damning admission? For example:

 

The plaintiff is not the legal owner of the debt that is the subject of this lawsuit.

 

If that is deemed admitted, their case is over. Once deemed admitted, all of those admissions become fact. Very important to always include a real case breaker. At least one.

[bambi]

Thanks all, I've been pouring over Internet stuff, compiling info. I guess I was always very worried about the "legal" way to write up a motion, but I'm just going to do my best to state the facts, and I know it won't be exactly as it should be, but I hope it will be good enough for the court. I am a little confused on the time line. I put in my RFA a 30 day time frame, but the lawyer said yesterday, it's 28 in MI. But in going over my searches on the Internet, they are saying 30 as well. Anybody know for certain, and because I put 30 days in my directions, is that what I have to go by?

[bambi]

1.  Admit that you are not the legal owner of the alleged debt.

2. Admit that FIA Card Services has no direct knowledge of this account that is in dispute and that no employee or agent of FIA Card Services directly requested any employee or agent of XXXXXXXXX to initiate any legal action against Defendant.

Admit that you do not have a written agreement or contract, signed by Defendant, between the Defendant and the Original Creditor

Admit that you have no written agreement, signed by Defendant, incorporating the terms and conditions of any agreement you allege exists in this case.

Admit that you are unable to provide a complete accounting for the amount you are claiming.

Admit that you have not provided Defendant with proof of assignment.

Admit that there is no written agreement between you and Defendant

Admit that as of the date you drafted your Complaint, you had no evidence admissible at trial that proves Defendant owes the debt.

Here's a copy of my admissions flyerfan.  

[Savoir]

Michigan allows a minimum of 28 days but since you specified 30 days .......... I believe that is what you will have to abide by.

[Spikey]

@bambi Those admissions will do the job if they don't answer in time. Nice work.

[Flyerfan]

Yup. They don't answer those and it's a slam dunk. Your main focus now is 100% towards getting those deemed admitted if they don't answer.

[bambi]

OK, well, I'm going to work on everything just in case they do send them in on time, but I'm going to put the admission at the top of the list.  I'm going to call the court tmw late afternoon, and see if they got filed, because the 17th would be 30 days.  

[Savoir]

No need to call the court .........

Discovery is between plaintiff and defendant ........... the courts are not involved except in the case where you have to file a motion to compel them to produce documents (your hearing is coming up for that) or to file a motion to deem admissions admitted.

 

In other words the court will not be aware whether you received answers or that you even sent discovery.  Hopefully, you sent these RFPD's and Admits via certified mail return receipt requested so that you can prove they received them and when.

 

I agree, get that motion to deem admissions admitted in the pan and ready to cook .......... soon.

[bambi]

Ohhhh, thanks Savior.  Lawyer told me yesterday to call the court when the admits were due to see if they "were filed".  Yep, I did send them CMRRR, so I have the receipts and I'm going to work full force.  Took Tmw off to really buckle down, and if I don't get them by sat. I'll be at the courthouse Mon am to file a motion.

 

Thanks for all of the great advice.

[Savoir]

Good luck !

[hot in az]

Hi, Sorry but that guy never responded to my e-mail. For your motion to compel discovery there is a very good post on this on the first page under heading Served by Midland. by Jules 757.

I think that will help you get started on yours.

[hot in az]

Sorry Under heading SUED by Midland

[Savoir]

@hot in az

 

OP already has a hearing scheduled for her motion to compel (8/30).

We should be trying to get her up to speed on a motion to deem admitted for her admission requests sent to plaintiff 28 days ago (which they have not answered).

[hot in az]

Sorry I thought that post was on how to file a motion to compel. I did not know it was differednt than deemed admitted. Could she google scholar a sample motion to look at??

[Savoir]

Already sent her a link for sample motions ..........

[bambi]

Yep, and I'm on it too. Been Looking and taking notes and just keep searching. Thanks everyone for your help. Just your encouragement keeps me going. After tmw, I'm sure I'll have more questions, and hopefully be able to post a draft.

[hot in az]

You go girl ! We are with you!!

[debtzapper]

http://scholar.google.com/scholar_case?case=16252837041476442191&q=account+stated+credit+card&hl=en&as_sdt=4,23&as_ylo=2012

 

Keep plugging away, but you might want to read this 2012 case from the MIch Crt of App., "FIA v. Weikle," which did not go well for Weikle.  It discusses the elements of breach of contract and account stated. 

[bambi]

Great article debtzapper, thank you. I do know the affidavit they sent me was signed 2 months before the complaint was filed. I have not seen an affidavit since then, so I hope to use that in some way. I'm really nervous about trying substantiate my motion with fact and site the wrong rule or case example. But. . . . I won't be any worse off than I am now, so here goes.

[Flyerfan]

IMO, a motion to deem admitted is very procedural. You sent them, they received them and didn't respond in the time allowed by law (assuming they don't).

 

As long as you have a judge who follows the rules, it should be cut and dry.

[bambi]

Ok, so this is how it went. So-so. They said I could continue down this path, but it is just buying me time, and eventually they will get a judgement. I know I owe them money but of course it's ballooned way up. They did suggest sending them a letter offering a monthly payment plan, and if they would reduce the total amount, monthly payments would be paid until it is paid off. I said I can't pay more than 100 per month. So they suggested sending a letter, requesting the amount be dropped to $9,000 and I will pay 100 per month until its done, with the option of a settlement if my finances improve. And if they accept, would they send a letter to the courts requesting a conditional dismissal. They did say if they were to accept to bring the letter in they send to have them look it over and make sure they didn't slip anything in that I wouldn't want. That way they can look it over to make sure it's on the up and up.

I asked about the admits and we discussed that for a while, but from what he could see, he felt like the courts might be a little lenient to them, plus he said even if the court did dismiss it, they could just file another suit, again this would be buying me time.

Any thoughts?? To be honest, I'm not opposed to making a monthly payment if it was within my means, I know I owe them money, and this has been EXTREMELY stressful. I would also put in the letter that if they pushed me to make a higher monthly payment, I would be forced into filing bankruptcy, which I truly would. And I'd rather not do that.

I value everyone's opinions here, and you all have been so good about helping each step of the way, I don't want you all to feel like I'm copping out on you. If you tell me fight it, I'll continue to fight, you've been there, and I know these people today are lawyers so of course they are going to advise in that direction. But with the cancelled checks and monthly statements they have sent, I'm afraid the courts will poo poo me, and side with them.

I'll be anxious to hear what you all think, and I'll go from there. Thanks to you all for your generous help.

[Spikey]

Talk about arrogance on their part. But it's no surprise that they want you to settle. It's something you need to consider. Only you can decide if that's the right option for you. 

 

I wouldn't have brought up the admits to them. Unless they are already overdue and you've filed the motion to have them deemed admitted. Those are cards you should be holding close.

[secondchances]

I've followed the entire thread and I'm sad to read that it came to this.  My fiance' is coming out of a bankruptcy filed in 2007 and he doesn't regret doing it because of the stress the other situation caused.  I myself managed to avoid bankruptcy, avoid law suits, and actually win some money in law suits that I filed but it too was a stressful ride.  I sometimes wonder if having credit is actually worth it at all, maybe we are better off using cash and collecting gold.    

[hot in az]

Be careful of any settlement offers because you could end up owing taxes on the lowered amount. They would have to agree to a much lowered amt for me to ever settle and no 1099.Would not want you to have an ugly surprise at tax time. I would take my chance if they don't send admissions today to filing that motion to have them deemed admitted.

But again it's up to you not us. Just feel like you've spent so much time and and gotten this far. And it's true that they could sue you again but my bet is a charge off and they sell it .Nothing is really for certain in all this except the Law.

[hot in az]

Oh also the agreement would have to be set where they can not tack on any more interest fees.