Answer to summons from lawyer representing LVNV in Michigan.

[lucky214]

I was served last week, I have done a little research and have come up with this response using the courts template. I would like some advice on any changes I should make, or wether I should ditch the template and construct my own answer.

 

Here is the summons.

summons.pdf

 

Here is my answer

 

answer.pdf

 

Any advice would be greatly apreciated. This is the first time I have gone through anything like this.

[Debtor_2013]

who notorized the affidavit from lvnv?

[shellieh98]

at the top of this fourm is a pinned thread from bmc100.  takes you though a step by step process for Mi.  You have some tough rules in MI.  Your answer does not have all the necessary components. (Paragraph numbers in the answer must correspond to paragraphs in the complaint.)

 

You only put a small paragraph after some of them, you must put a reason after each one.

 

I noticed you put account is out of SOL?  When was the last payment on the account?  If you made the last payment in 3/07, then sol would be up in 4/13.  If the lawsuit was filed after 4/13, then you would have a counter suit for suing on a time barred debt.

 

start by filling out these questions, and it will help us answer you better.

 

1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

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

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

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

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?

9. What state and county do you live in?

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

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

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).

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

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.

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? 

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.

[lucky214]

who notorized the affidavit from lvnv?

 

Ryan Cuneaz was the notary

[lucky214]

 

start by filling out these questions, and it will help us answer you better.

 

1. Who is the named plaintiff in the suit? LVNV

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

3. How much are you being sued for? 752.49

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

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

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

 

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

 

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? Oakland County, Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) The last payment on any alleged acount was in 03/01/2007 (edit)

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

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). suit served

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? 7 days so far

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

[shellieh98]

you say last payment was  03/01/2013?

 

Their paperwork says 2008, did you mean 2008, or like on your court paper 2007?

[lucky214]

The best information I have is from my credit report were HSBC reported the last payment date as 03/01/2007.

[shellieh98]

OK, we will help you get your suit answered, and If it were me, and you are sure of last payment, I would file a counter suit for suing on a time barred debt.  @bmc100  would a motion to dismiss in lieu of an answer be the best way to go if it is time barred, or answer and counter suit? 

 

MI rules are sticky (to me lol)  If a motion to dismiss was granted, you could do a separate suit for suing on a time barred debt.  That is an fdcpa violation, and probably some other violation for MI.  

[bmc100]

It is outside the statute of limitations, you also needed to file a counter-affidavit. In the simpliest of terms, they created a prima facie case against you. Now you have to prove that it is outside the statute of limitations with actual evidence showing it. You cannot just make the argument without backing it.

 

Further, the 6 year statute of limitations only applied to the breach of contract claim. The account stated claim and unjust enrichment claims are barred after 4 years.

[bmc100]

There is no reason to file a motion to dismiss here, it will just get rejected.

[lucky214]

I found this  counter-affidavit in another tread. I think most of the ponts work with my case. Should I add in the counter-affidavit that it is my beliefe that the debt is past the SOL? How would i go about prooving that this debt is time barred?

 

Counter Affidavit Denying Plaintiff's Claim

 

NOW COMES, Defendant, XXX, deposed and states under penalty and perjury:

 

1. I am a resident of the Sate of Michigan over the age of 18 years of age. This affidavit is made on my personal knowledge and, if sworn as a witness, I can testify competently to the facts in this affidavit.

 

2. Plaintiff has attached to the complaint at issue, an out of state affidavit by x dated in excess of 10 days of the complaint. This affidavit attached as Exhibit B is not in compliance with MCL 600.2145.

 

3. On information and belief, the affiant, x lacks the personal knowledge of the alleged credit originator's record keeping practices, records authenticity, manner and policies of records data security, record entry logs, alleged account particularities, and has never worked for the alleged account originator.

 

4. There has been no prior course of dealings between Plaintiff and Defendant.

 

5. There have been no transactions between Plaintiff and Defendant.

 

6. Plaintiff never extended credit to Defendant.

 

7. Plaintiff has failed to attach necessary writings to the complaint and erroneously stated that the necessary writings for one cause of action are in the possession of the Defendant.

 

8. Defendant after diligent search and reasonable inquiry is at this time unable to locate any writings responsive to the complaint and therefore cannot produce them.

 

9. Defendant is presently unaware of the alleged obligation or debt or claim of Plaintiff referenced in the complaint. Plaintiff failed to attach the writings it bases its claims on.

 

10. Defendant does not recall any obligation or debt or claim to Plaintiff and therefore, due to a lack of information or belief in the truth or the Plaintiff's claims and causes of action, denies the claims of Plaintiff entirely.

 

edit, sorry, just saw that you don't like that affidavit BMC. Any advice on modifying it would be apreciated.

[shellieh98]

you need to put that the debt is time barred.  To prove the last payment you could go to the bank and get copies of your statements for mar of 07 showing your payment, then a couple of statements afterwards that show no payments.  You could also order (not the online thing, but write in to get an official copy) of your credit report showing the OC records that last payment was in 3/07.  Keep in mind you will be admitting to the debt this way, but if you check and are sure, then I would do it. You still need to re-answer your answer so that you substantiate each allegation with a opposing paragraph as to why you don't owe the debt.  You could put in alot of them debt is time barred, and cite the mi rules.  Then add the counter suit. 

 

That is my take, but others from your state would know better.

[bmc100]

An affidavit should basically deny the elements of a breack of contract and Account stated claims.

 

1. I am unaware of the account referenced in the plaintiff's complaint (Account # XXXXXXX) for I have not APPLIED for credit with the Plaintiff's assignor.

 

2. I disagree with the amount claimed Plaintiff for this is not my acount, nor have I ever agreed that the amount they are claiming is due and owing.

 

3. I have never received statements from the Plaintiff or Plaintiff's assignor.

 

4. I have never made a payment on the alleged account that is the basis of this lawsuit.

 

5. I have never benefited from the use of this card, for I have never made a purchase for goods or services by using the card.

 

6. I have never had contact with the Plaintiff, attorney or it's assignor prior to the filing of this case.

 

7. I deny all claims made by the Plaintiff in their complaint.

 

 

I, _________, make this affidavit to the best of my knowledge and belief....etc.

[lucky214]

Okay, I have my answer and my counter-affidavit ready. Do I just attach the counter-affidavit to my answer, or do I send that out separate?

[Savoir]

File it with the court along with your answer.

Send it to the plaintiff in the same mailing as your answer (CMRRR).

Be sure to file and send a certificate of mailing, also.

[lucky214]

Attended the pre-trial conference 3 weeks ago, recieved a motion to dismiss without prejudice today. I will take it as a win, for now.

[ArtVandelay]

Congrats!!!!!!!!   

[Savoir]

Wow ......... !!

That was fast.

Congratulations on your win !!