Being sued by Midland with Stillman Law Office as Attorneys

[jrg24]

Hello I need legal advise for dummies please I received a Summons and Complaint and need to know how to answer it (step by step)

 

I found this and I hope it can help everyone to help me

 

1. Who is the named plaintiff in the suit?

Midland Funding LLC Assignee of GE Money Bank

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

Stillman Law Office

3. How much are you being sued for?

3144.50

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

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

Received a Summons

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

Sherriff hand delivered

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

yes

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?

none

9. What state and county do you live in?

Michigan, St. Clair County

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

not sure but pretty sure it was late 2010 possibly Nov of that year

11. What is the SOL on the debt? 6 years I believe

12. What is the status of your case? Suit served? Motions filed? You can find this by 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).
 

need to answer the Summons and complaint
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
no
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?
I have 21 days but have 14 left

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

there is an Affidavit buy someone who states they are employed as a Legal Specialist and have pertinent account records for Midland. That they are competent and have personal knowledge of those account records etc. I am sure you know the rest.

2. MCM' records show that the defendant (s) owed a balance of 3144.50 as of 2013-03-11

 

 

So I have been following the posts here and have a few questions

1. how do I answer this? Do I go point by point on page 2

2. Is there also something I can do since the case was filed on May 10, 2013in Michigan and the affidavit is dated April 4 2013 in the state of Minnesota

 

any help would be great

thanks

 

•  

 

[jrg24]

Also I know that I have to file a counter affidavit but how do I do this and how should it be written?

[Spikey]

Read this thread: http://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/

 

@bmc100 is the man in Michigan

[jrg24]

Thank you for replying so fast

I have read and read all these posts and I think I am a bit over whelmed.

I have 4 complaints so I take it that I have to answer each number which I plan to deny, so I am thinking my responses should be:

first I will list theirs then my response

1. That the Defendant herein is indebted upon open account or pursuant to contract, and defendant accepted same (original Account Number: xxxxx).

2. Performance has been completed and defendant agreed to pay the account.

3. There is presently due and owing, over and above all legal counter claims, the sum of $ xxxx

4. Plaintiff requests judgment for $ xxxx, plus interest, costs and attorney fees.

 

My response

1. Denied-the defendant has lack of information or knowledge of sufficient information to form a belief as to the truth of the allegation

2. Denied- knowledge of information sufficient to form a belief as to the truth of the allegation

3. Denied- knowledge of information sufficient to form a belief as to the truth of the allegation

4.? do I answer this or deny it based on lack of information?

and should I change these answers they seem pretty uniform

 

 

[admin]

Why don't you type out your complaint here and we can help better with the answer.  

[peanutrs]

Definitely an untimely affidavit.

MCL 600.2145 (last sentence of it)

 

Deny #4.  Plaintiff has not proven that they own the alleged debt.

 

Here is a CIC link for DUELING AFFIDAVITS example aka Counter-Affidavit

http://www.creditinfocenter.com/community/topic/318506-affidavit-is-from-oc/?p=1218291

 

 

I'm sure bmc100 will chime in here soon... 

[Savoir]

In Michigan, there are only 3 ways you are allowed to answer an allegation in a complaint as outlined in the Michigan Rules of Civil Procedure 2.111©(1)(2)&(3)  (Please note that this forums software turns  parenthesis C parenthesis into a copyright symbol)

1. state an explicit admission or denial;
2. plead no contest;
3. state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial.

MCR 2.111 (D) states:

Form of Denials. Each denial must state the substance of the matters on which the pleader will rely to support the denial.

 

In other words, if you deny any allegation you must state the reason why you deny it.  As your answer stands now, you have combined a denial and a lack of information (which has the effect of a denial) but, you have not given a reason for your denial.

 

Example:

Allegation

1. That the Defendant herein is indebted upon open account or pursuant to contract, and defendant accepted same (original Account Number: xxxxx).

 

Answer

1. Denied. Plaintiff has not shown, with sufficient evidence, that defendant is indebted to anyone on open account nor have they provided evidence of a contract entered into by defendant. Plaintiff has not shown that defendant accepted any contractual terms.

 

 

You might want to reread bmc100's post again with regards to the plaintiff not pleading assignment.

As far as I can tell from your posted complaint they didn't plead assignment and I believe that bmc100 thinks that this failure is grounds for dismissal (without prejudice). On the other hand, they may just refile or amend their complaint so, keep that in mind.

 

There are a lot of good links in peanutrs signature ......... I suggest that you read them.

[jrg24]

Thank you all so much, I think I am getting it so to speak I am going to post the entire complaint so here goes

 

Midland Funding LLC

Assignee of GE MONEY BANK

Plaintiff,

 

vs,                                                                                           2013                                                                

 

Me

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

STILLMAN LAW OFFICE                                                                            FILED

by Michael Stillman                                                                                    MAY 10 2013

address

 

                                                                                        COMPLAINT

Now comes the Plaintiff, Midland Funding LLC Assignee of GE MONEY BANK by and through

its attorneys, STILLMAN LAW OFFICE, and for its Complaint against the Defendant , states as follows

 

1. That the Defendant herein is indebted upon open account or pursuant to contract, and

defendant accepted the same. (Original Account Numberxxxxx)

 

2. Performance has been completed and defendant agreed to pay the account.

 

3. There is presently due and owing, over and above all legal counter claims, the sum of $ xxxx

 

4. Plaintiff requests judgment for $ xxxx, plus interest, costs and attorney fees. 

I declare the statements above are true to the best of my information, knowledge and belief.

 

                     Respectfully  submitted

                   STILLMAN LAW OFFICE

 

  Page 2

 

MIDLAND FUNDING LLC.

Plaintiff

 

-vs-                                                                                                        AFFIDAVIT OF JAIMI DITTMER

 

ME

Defendants (s)

 

_________________________________________

 

Jaimi Dittmer, who's business is xxxx St. Cloud MN certifies and says:

 

1. I am employed as a Legal Specialist and have access to pertinent account records for

Midland Credit management, Inc. ("MCM"), servicer of this account on behalf of plaintiff.

I am a competent  person over eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained on plaintiff's behalf.  Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned akk

the rights, title and interest to defendant's GE MONEY BANK account xxxxx (MCM Number xxxx) (herein "the account"). I have access to and have

reviewed the records pertaining to thee account and am authorized to make this affidavit on plaintiff's behalf.

2. MCM"s records show that the defendant(s) owed a balance of $ xxxx as of 2013-03-11.

 

 

3RD page

 

I certify under penalty and perjury that the foregoing statements are true and correct.

 

April 04 2013

Date                                                                                                

 

                                                                         Jaimi Dittmer

 

STATE OF MINNESOTA

COUNTY OF STERNS

 

Signed and sworn to (or affirmed) before me on April 04 2013  by Jaimi Dittmer

 

                                                                               Notary Public signature

 

 

So there it is now I need to file an answer and a counter affidavit, Suggestions? also is their affidavit valid considering the dates?

 

Thanks

[peanutrs]

 Is their affidavit valid considering the dates?

 

It cannot be considered as Prima Facie evidence because of the dates.  Untimely, stale.

MCL 600.2145

 

600.2145 Open account or account stated; proof, counterclaim.

 

Sec. 2145.

In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.

[Savoir]

 

You might want to reread bmc100's post again with regards to the plaintiff not pleading assignment.

As far as I can tell from your posted complaint they didn't plead assignment and I believe that bmc100 thinks that this failure is grounds for dismissal (without prejudice). On the other hand, they may just refile or amend their complaint so, keep that in mind.

 

 

OK ....... they did did plead the assignment in a round about manner:

Now comes the Plaintiff, Midland Funding LLC Assignee of GE MONEY BANK ........... however they didn't provide the documentation to prove their claim.

 

I would include Lack of Standing as an Affirmative Defense in your answer and then ask for the documentation during the discovery phase.

[jrg24]

ok I am pasting my Answers to the complaint and will post my counter affidavit on the next post (still working on it)

suggestions and comments are needed Thanks

addresses and stuff then

Defendant in answer to the complaint states:

1. Denied. Plaintiff has not shown, with sufficient evidence, that defendant is indebted to anyone on open account nor have they provided evidence of a contract entered into by defendant. Plaintiff has not shown that defendant accepted any contractual terms.

2. Denied. Plaintiff has not shown, with sufficient evidence, that defendant is indebted to anyone on open account nor have they provided evidence of a contract entered into by defendant. Plaintiff has not shown that defendant accepted any contractual terms.

3. Denied. Plaintiff has not shown, with sufficient evidence, that defendant is indebted to anyone on open account nor have they provided evidence of a contract entered into by defendant. Plaintiff has not shown that defendant accepted any contractual terms.

4. Denied. The plaintiff has provided no proof in support of this allegation.

Untimely affidavit, The affidavit provided by the plaintiff has no merits as it is dated, April 04, 2013 is STALE by not being made within ten days preceding the filing of the alleged complaint or issuance of the summons. Per Michigan law MCL 600.2145 states that if the affidavit is made prior to a 10 day period, the affidavit does not serve as a Prima Facie evidence and the court cannot put weight of evidence towards that affidavit.

Wherefore, Defendant humbly requests the honorable judge for a dismissal with prejudice in its favor and against plaintiff due to lack of evidence and proper standing to sue.

[jrg24]

Counter Affidavit

names and addresses

STATUTORY DECLARATION

IN LIEU OF AFFIDAVIT

STATING FACTS OPPOSING

PLAINTIFFS AFFIDAVIT

STATUTORY DECLARATION

I, ___________, under "penalty of perjury" pursuant to the laws of the state of Michigan and Michigan Rules of Civil Procedure 1E, herein after “Declarant”, “Defendant”, “Alleged Borrower”, “Alleged Account Holder”, depose and declare, that the declaration used in lieu of affidavit, allowed by these rules, avers that the submittal of the following statements, made herein, are true and correct to the best of my knowledge, and not meant to mislead.

1. I am a competent person over the age of eighteen and deny the debt and the allegations in the plaintiff's affidavit of debt.

2. Denied. The plaintiff has provided no proof in support of this allegation.

“I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.”

Dated this day 2013

[jrg24]

do I also put in my counter affidavit about it being Untimely again?

[Savoir]

My example was just that .............. an example. You must answer each allegation with specificity. The answers you have given will raise a red flag of copy and paste from the internet.

 

It seems to me that the plaintiff is claiming 'account stated' and/or 'breach of contract' in their complaint.

You must learn the elements of those causes of action and the defenses against them.

 

Question about your counter affidavit .......... where did you find this MCR 1E ?? 

 

With regard to the untimely affidavit from plaintiff ........... MCL 600.2145 does not state that the 'court cannot put weight of evidence toward that affidavit', it states that the affidavit cannot be used as Prima Facie evidence.  The affidavit can still persuade the court unless you counter in a timely manner.

[bmc100]

That is not an affidavit. It does not state anything. They are suing you on an account stated claim, so oppose the elements of account stated. Then state you are not in possession of a contract and you have not applied for credit with Midland's assignor.

 

You need to do the work.

 

The correct heading to an affidavit is:

 

Date:

 

State of Michigan))

County of _______))

 

I, ________, am over 18 years of age, competent to make this affidavit, free of penalty and perjury makes this affidavit as follows.

[peanutrs]

Here is what I think is a good read on Lack of Standing.  Help you wrap your brain around it...in laymans terms... I think anyway..

 

CIC link by Coltfan1972

http://www.creditinfocenter.com/community/topic/312714-standing-when-dealing-with-jdb/

[jrg24]

ok I think I have finally finished

Defendant in answer to the complaint states:

1. Denied. The Defendant has not been provided any evidence supporting this claim.

2. Denied. The Defendant has not been provided with evidence of such performance.

3. Denied. The Defendant has not been supplied with any evidence of documents supporting the Plaintiffs claim.

4. Denied. This calls for an admission that defendant has denied and as such is improper.

Furthermore, Defendant denies every other allegation not previously admitted, denied or controverted.

Untimely affidavit, The affidavit provided by the plaintiff has no merits as it is dated, April 04, 2013 is STALE by not being made within ten days preceding the filing of the alleged complaint or issuance of the summons. Per Michigan law MCL 600.2145 states that if the affidavit is made prior to a 10 day period, the affidavit does not serve as a Prima Facie evidence and the court cannot put weight of evidence towards that affidavit.

Wherefore, Defendant humbly requests the honorable judge for a dismissal without prejudice in its favor and against plaintiff due to lack of evidence and proper standing to sue.

now my counter affidavit

I,( me), am over 18 years of age, competent to make this affidavit, free of penalty and perjury makes this affidavit as follows

I deny the debt and any allegations in the plaintiff’s affidavit of debt.

[bmc100]

I am done commenting on your thread. You did not do one single thing that we told you to do.

[peanutrs]

Here is a link by Hannah here at CIC, pertaining to "Account Stated" claims in Michigan... Good read....

 http://www.creditinfocenter.com/community/topic/262684-asset-suing-sol-account-stated-questions/?p=739968

 

 

"An account stated consists of a “balance struck between the parties on a settlement . . . .” Keywell & Rosenfeld v Bithell, 254 Mich App 300, 331; 657 NW2d 759 (2002), citing Watkins v Ford, 69 Mich 357, 361; 37 NW 300 (1888). “[W]here a plaintiff is able to show that the mutual dealings which have occurred between two parties have been adjusted, settled, and a balance struck, the law implies a promise to pay that balance.” Id. In Kaunitz v Wheeler, 344 Mich 181, 185; 73 NW2d 263 (1955), quoting from White v Campbell, 25 Mich 463, 468 (1872), the Michigan Supreme Court explained as follows: "The conversion of an open account into an account stated, is an operation by which the parties assent to the sum as the correct balance due from one to the other; and whether this operation has been performed or not, in any instance, must depend upon the facts. That it had taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from that. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account. [Emphasis in original.]"
 

[peanutrs]

I am done commenting on your thread. You did not do one single thing that we told you to do.

A little harsh don't you think? 

 

Obviously this NEW MEMBER is still having difficulty understanding what is required.

And is making an effort~

 

"Patience is a virtue"...

[admin]

@bmc100 - I'm not sure myself what the OP was supposed to do differently.  

[jrg24]

I am done commenting on your thread. You did not do one single thing that we told you to do.

 

bmc100, I see that you are frustrated with my posts now just imagine how frustrated I am...I  have read and reread all these posts and I know I am  over whelmed.

 

I am going to continue to read and read and read and work on the suggestions of the other posters until I do understand.

[shellieh98]

Read post 14 near the bottom. You are mis quoting the rule in your answer. Savior asked you where you got that?

Also read what peanuts posted on account stated. There needs to be an agreement between 2 parties, and a balance struck. There are 4 parts to account stated, that is one and 2 . If you deny the first one in your answer, your answer needs to state why you deny it, such as , you deny an agreement was made, and a balance struck.

There are a ton of people from mi around here. MI is different in their rules are not as lax as some states. You don't want to mess up on procedure, or plaintiff will use it against you, or even worse, court may not accept it.

[bmc100]

Read through my thread:

 

http://www.creditinfocenter.com/community/topic/318613-my-wife-is-getting-sued-again-this-time-by-a-jdb-stellar-recovery/

 

I posted the answer to my wife's case and the affidavit.

[jrg24]

Thanks Shellieh98

 I did  totally messed up that post,  I posted in error and I am glad Savior pointed it out (thanks) I fixed it and with the help of peanuts I understand what I was doing wrong with my responses.  I appreciate all the help and the info. from everyone especially MI since we do have different rules.

 

bmc100, I will read the thread again