Jump to content

JDC Served me Today Please Help


Recommended Posts

Hello everyone I am here because I need help.  I am thankful this community is here, and I am willing to listen to any advice the experts have for me.  Thank you in advance for all your hard work and help.

I was summoned yesterday by a JDC called LVNV today.  

I need help getting this taken care of.  

I plan on representing myself.

I read through BMC100's step by step guide, but I still have some questions.

My first questions is should I start by sending a motion to have the case dismissed?

 

I am using Savior's template which i found in BMC100's sticky to prepare the document.  My first question is this template tailored for a dismissal?

 

In the template it says "type the name of your pleading here" in the template, do I use one of the three*(I am confused as to what this means):

 

"2. you have to respond to each numbered allegation in the complaint in one of the following three ways: MCR 2.111©(1)(2)(3).
A. The Defendant denies this allegation in its entirety
B. The Defendant admits this allegation in its entirety
C. The Defendant lacks knowledge of information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial."

This was taken from BMC's sticky

 

In my summoning there are 17 accusations, but only 3 counts.  Do I go through each of the 17 accusations and choice one of the above?  Or do I go through each count?

 

I know you have to provide some sort of argument, and BMC100's suggested that you use, "1) Failure to state a claim and 2) Lack of Standing?"

 

 

For example, the first allegation is Plantiff is the assignee of Defendant's account issued by Sterling Jewelers, Inc.

In the body of the template would I write

Allegation 1 The Defendant denies this allegation entirely because the Prosecution lacks standing

Did I do this right?

Or would it be something like this:

Count 1: Breach of Contract The Defendant denies this allegation entirely because the Prosecution lacks standing.

 

I have many more questions, but I think this is a good start.  

Link to comment
Share on other sites

MY court name here

plaintiff name

plaintiff

vs

defendant name

defendant

case #

DEFENDANT’S ANSWER AND AFFIRMITIVE DEFENSES TO PLAINTIFFS COMPLAINT

COMES NOW the defendant MY NAME, Pro se (hereinafter referred to as"defendant"), submits Defendant’s Answer and AFFIRMITIVE DEFENSES to Plaintiffs' Complaint for breach of contract (“Complaint”) as follows:

the allegations of plaintiffs complaint

example

Paragraph 1 of the Complaint Defendant admits venue is proper

Paragraph 2 of the Complaint Defendant admits his name is john smith

Paragraph 3 of the Complaint Defendant denies midland is the legal owner of the debt.

Defendant is without information or knowledge sufficient to form a belief as to the truth

of the allegations contained in ¶ 4, ¶ 5, ¶ 6, ¶ 7, ¶ 8, ¶ 9 ¶ 10¶11¶12¶13¶14¶15¶16¶17¶

As to all remaining allegations of fact in the unnumbered ¶ 1 through ¶ 17 of the complaint

not specifically admitted, Defendant denies all such allegations. As to all remaining

allegations which call for a legal conclusion, Defendant lacks sufficient knowledge or

expertise to respond to such legal conclusions and, therefore, denies them.

alleged breach of contract count one

Defendant hereby incorporates his responses stated above as if fully set forth under

Count 1 of Plaintiffs’ Complaint.

AFFIRMATIVE DEFENSES

By and for his Affirmative Defenses, Defendant states:

First Affirmative Defense

1. Plaintiffs’ Complaint fails to state a claim upon which relief may be

granted against defendant.

Second Affirmative Defense

2.Statute of limitations

Third Affirmative Defense

3.Plaintiff is not the legal holder of the alleged debt and therefore is not the real party in interest; this action should be dismissed for lack of standing.

Forth Affirmative Defense

4.Plaintiff’s complaint is not properly verified and is not grounded in fact because it does not exhibit the alleged contract the debt is based upon, a valid statement of account, nor any valid assignment that gives Plaintiff legal title to the claim.

Fifth Affirmative Defense

5.Plaintiff in filing this Complaint has not produced a copy of the executed agreement.

Sixth Affirmative Defense

6.Defendant reserves the right to plead additional defenses (or cross-claims or counter claims) that may be identified during the Defendant's investigation and/or course of discovery.

WHEREFORE, Defendant prays that this Court find judgment for Defendant,

deny Plaintiffs’ request for relief, deny Plaintiffs’ request for damages, deny

Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief whatsoever. Defendant further prays that this Court hold that Defendant is the prevailing party, and dismiss Defendant with prejudice.

respectfully submitted,

my name here

Defendant, pro'se

address

phone

CERTIFICATE OF SERVICE BY REGULAR MAIL

I, my name do hereby certify that a true and exact copy of the foregoing Answer To Plaintiffs Complaint was served to JUNK DEBT BUYER by United States mail, postage prepaid, addressed as follows to attorneys name and address for JUNK DEBT BUYER.

from: my name my address my phone sent on this date 08/13/2013

Link to comment
Share on other sites

Sorry for all of the goof ups.  Thank you for all the help you have provided thus far.

 

The other two were account stated and unjust enrichment.

 

Do I just replace the general information and replace it with my own?  

 

BMC100 said something about motioning to get the case dismissed.  Is the above letter an answer, or will this be a motion to get the case dismissed?

 

Again, Thank you!

Link to comment
Share on other sites

Excellent Answer - Racecar you helped me before and I just wanted to thank you again for your diligence and dedication in helping needy folks like us.  I got my two cases dismissed without prejudice --with the help of all the wonderful people in this forum.  Postedup610 - you are in the right place to get help - everything seems to have been laid out for you to file your Answer (except for your recent two items)

 

All the best,

homeschool mom

Link to comment
Share on other sites

Hello everyone I am here because I need help.  I am thankful this community is here, and I am willing to listen to any advice the experts have for me.  Thank you in advance for all your hard work and help.

I was summoned yesterday by a JDC called LVNV today.  

I need help getting this taken care of.  

I plan on representing myself.

I read through BMC100's step by step guide, but I still have some questions.

My first questions is should I start by sending a motion to have the case dismissed?

 

I am using Savior's template which i found in BMC100's sticky to prepare the document.  My first question is this template tailored for a dismissal?

 

In the template it says "type the name of your pleading here" in the template, do I use one of the three*(I am confused as to what this means):

 

"2. you have to respond to each numbered allegation in the complaint in one of the following three ways: MCR 2.111©(1)(2)(3).

A. The Defendant denies this allegation in its entirety

B. The Defendant admits this allegation in its entirety

C. The Defendant lacks knowledge of information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial."

This was taken from BMC's sticky

 

In my summoning there are 17 accusations, but only 3 counts.  Do I go through each of the 17 accusations and choice one of the above?  Or do I go through each count?

 

I know you have to provide some sort of argument, and BMC100's suggested that you use, "1) Failure to state a claim and 2) Lack of Standing?"

 

 

For example, the first allegation is Plaintiff is the assignee of Defendant's account issued by Sterling Jewelers, Inc.

In the body of the template would I write

Allegation 1 The Defendant denies this allegation entirely because the Prosecution lacks standing

Did I do this right?

Or would it be something like this:

Count 1: Breach of Contract The Defendant denies this allegation entirely because the Prosecution lacks standing.

 

I have many more questions, but I think this is a good start.  

 

Answer to your first question: My first questions is should I start by sending a motion to have the case dismissed?

The chances of getting this dismissed at this stage of litigation are pretty slim unless plaintiff's complaint is fatally flawed (e.g. Statute of Limitations has run, suing the wrong person ...... etc.)

 

Answer to your second question: is this template tailored for a dismissal?

The template I provided is tailored for an answer to a complaint but, could be used for virtually any pleading with a little tweaking.

 

Answer to your third question: In the template it says "type the name of your pleading here" in the template, do I use one of the three?

Your first course of action is to answer the complaint; thus, the title of your first pleading would be Defendants Answer, (and if you include any) Affirmative Defenses.

Anytime you move the court to take action, or respond to a pleading from plaintiff, you title your pleading accordingly.

 

Answer to your fourth question: Do I go through each of the 17 accusations and choice one of the above?  Or do I go through each count?

You must answer each allegation (accusations) with one of the choices above. If you deny any of the allegations against you; you must state the substance (reason) why you deny the allegation.

 

Example: the first allegation is Plaintiff is the assignee of Defendant's account issued by Sterling Jewelers, Inc.

Denied; plaintiff has not provided documentation sufficient to support this allegation.

or

Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation and therefore Denies.

Since "lacking knowledge or information" acts as a denial; you must state the substance on which you rely for the denial.

 

Now I have some questions for you:

  1. How old is this alleged debt?
  2. Is this a credit agreement or a promise to pay (written agreement for a one time purchase)?
  3. Approximately how much is the alleged debt for (round the figure either up or down)?
  4. Do you have the alleged agreement? What are the terms?

The upside is that LVNV is a junk debt buyer ........ they can be beaten but, you have to do the work.

 

Here are some things to study:

Michigan Rules of Civil Procedure

Michigan Rules of Evidence

 

You should copy and paste these questions into this thread and answer them; it will give the posters a better idea of what you're dealing with (redact all personal information, of course).

Link to comment
Share on other sites

1.    Who is the named plaintiff in the suit?

LVNV Funding LLC

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

Stenger & Stenger, P.C.

3. How much are you being sued for?

Around $1,000

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

Sterling Jewlers Inc.

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

I was served at my door.

6. How were you served? (Mail, In person, Notice on door)
In person 7/30
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?

I have not made any correspondence

9. What state and county do you live in?\

Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
I do not know.  Probably around late 2007 early 2008?
11. What is the SOL on the debt? To find out: 


Statute of Limitations on Debts
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).

I was served 7/30/13

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

No, not yet.  I plan on writing the BBB

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 have not.

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 believe I have 21 days to respond in writing and 28 in person.

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 attached two exhibits. 

Exhibit A is an account stament that was created by LNLV March 22, 2013

Exhibit B is Plantiff’s Affidavit of Indebtedness and Ownership of Account also created March 22, 2013.

Link to comment
Share on other sites

  1. How old is this alleged debt?

Around 6 years?

  1. Is this a credit agreement or a promise to pay (written agreement for a one time purchase)? Credit agreement
  2. Approximately how much is the alleged debt for (round the figure either up or down)? Around $1,000
  3. Do you have the alleged agreement? What are the terms?

I do not.  It is from Sterling Silver, Inc.

Link to comment
Share on other sites

So ........ this is a open account with who? ....... Kay Jewelry or Jared ?....... they are both subsidiaries of Sterling Jewelry, Inc.

 

 

 

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

No, not yet.  I plan on writing the BBB

 

You can do this if you decide to ......... it won't have any bearing on your case though.  The BBB is a joke, much like the National Do Not Call List.

 

Can you post the complaint (in full) redacting any personal information?  Maybe the knowledgeable posters can help you devise an answer.

 

Stenger & Stenger is notorious for suing for these JDB's.  In fact, the founder of the law? firm runs his own JDB corporation.

  • Like 1
Link to comment
Share on other sites

There is no other pending or resolved civil action arising out of the transaction or occurrence as alleged in the Complain.

 

Now Comes the above named plaintiff, by and through its attorneys, XXXXXXXXX, for its Complaint states as follows:

Jurisdictional Allegations

1.    Plaintiff is the assignee of Defendant’s account issued by XXXXXXXX

2.    Upon information and belief, Defendant Me resides XXXXXXXXXXXX(my old address, not where I was served at)

3.    The amount in controversy, exclusive of interest and costs, is less than 25,000,000

4.    On XXXXXXXXX 2006, defendant(s) opened an account with XXXXXXXX.  An agreement (“Agreement”) was delivered to the Defendant (s) and to the best of Plaintiff’s knowledge, is in Defendant’s possession.

5.    Defendant accepted the terms of the Agreement by use of the account.

6.    Defendant(s) have failed to make payment as agreed upon and the account is default.

7.    There is now due the sum of XXXXXXX as is stated in Plaintiff’s Account Statement, attached as Exhibit A and an Affidavit, attached as Exhibit B, plus pre-suit interest at the rate of 5 percent per annum on account number XXXXXXXXXXXXXXXX from 2008-2013 in the amount of  XXXXXXXXX for a total due and owing XXXXXXXXXX

8.    Despite repeated demands, Defendant(s) has failed to pay the amount due and the account is in default.

9.    To avoid substantial injustice, Defendant(s) should be required to repay Plaintiff the sum due.

Count 1

Breach of Contract

10.  Plaintiff restates and re-alleges paragraphs 1 through 11 herein.

 

11.  Defendant is in breach of contract by failing to pay for charges incurred as agreed upon and there remains an unpaid balance of XXXXXXXXX

 

Count II

Account Stated

 

12.  Plaintiff restates and re-alleges paragraphs 1 through 11 herein

13.  Defendant(s) received and retained billing statements on the XXXXXXXX and failed to object to the accuracy of these statements.

14.  The account has become stated between the parties.

 

Count III

Unjust Enrichment

 

15.  Plaintiff restates and re-alleges paragraphs 1 through 14 herein.

16.  Defendant (s) received, accepted and benefited from the use of the XXXXXX account and Plaintiff has not been fully paid the reasonable and agreed upon value of said usage of the account.

17.  Defendant(s) have been unjustly enriched to the detriment of the Plaintiff and are therefore indebted to the Plaintiff in the amount stated herein.

Wherefore, Plaintiff request a judgment in its favor and against Defendant(s) in the amount of XXXXXXXX, together with interest continuing to accrue, and costs.

                                                                                                                        Respectfully Submitted,

                                                                                                                                                                                        XXXXXX

 

Exhibit A

Account Statement

Original Issuer: XXXXXXX

Unpaid balance as of XXXXx          $XXXXXX

 

My old address

Account# XXXXXXXXXXXXXXX

 

 

 

Exhibit B

Plaintiff’s affidavit of Indebtedness and ownership of account.

Then there are 5 clauses.

 

Thank you again for all the help.

Link to comment
Share on other sites

If it were me, this is how I would answer this complaint.

In Michigan, if you deny an allegation, you must "state the substance of the matters on which you rely to support the denial".

The defense "lack of knowledge or sufficient information" has the effect of a denial.

1. Plaintiff is the assignee of Defendant’s account issued by XXXXXXXX

Defendant states that he/she lacks knowledge or information sufficient to form a belief as to the truth of the allegation and therefore; denies. There is no sufficient documentation attached to the complaint to support the allegation.

2. Upon information and belief, Defendant Me resides XXXXXXXXXXXX(my old address, not where I was served at)

Defendant admits in part; denies in part. Defendant admits that his/her name is Me.

Defendant denies that he/she lives at XXXXXXXXXXX. Defendant does not reside at that address.

3. The amount in controversy, exclusive of interest and costs, is less than 25,000,000

Defendant states that this is not an allegation and therefore, does not require a response.

4. On XXXXXXXXX 2006, defendant(s) opened an account with XXXXXXXX. An agreement (“Agreement”) was delivered to the Defendant (s) and to the best of Plaintiff’s knowledge, is in Defendant’s possession.

Defendant states that he/she denies this allegation in its entirety. There is not sufficient documentation to support the allegation and furthermore, defendant is not in possession of the alleged “agreement”.

5. Defendant accepted the terms of the Agreement by use of the account.

Denied. Plaintiff has not shown documentation sufficient to show he/she “used the account”.

6. Defendant(s) have failed to make payment as agreed upon and the account is default.

Denied. Plaintiff has not shown that defendant has any agreement with plaintiff nor has plaintiff shown, with sufficient documentation, that any account of defendant is in default.

7. There is now due the sum of XXXXXXX as is stated in Plaintiff’s Account Statement, attached as Exhibit A and an Affidavit, attached as Exhibit B, plus pre-suit interest at the rate of 5 percent per annum on account number XXXXXXXXXXXXXXXX from 2008-2013 in the amount of XXXXXXXXX for a total due and owing XXXXXXXXXX

Defendant states that he/she lacks knowledge or information sufficient to form a belief as to the truth of the allegation and therefore; denies. There is no sufficient documentation attached to the complaint to support the allegation.

8. Despite repeated demands, Defendant(s) has failed to pay the amount due and the account is in default.

Denied. Defendant states that he/she has never received a demand for the alleged amount due from plaintiff.

Defendant also states that he/she never had an account with plaintiff nor is any alleged account with plaintiff in default.

9. To avoid substantial injustice, Defendant(s) should be required to repay Plaintiff the sum due.

Denied. Defendant has already denied that he/she owes plaintiff anything and furthermore, there has not been sufficient proof, by way of admissible documentation, that defendant has a “sum due” to plaintiff.

Count 1

Breach of Contract

10. Plaintiff restates and re-alleges paragraphs 1 through 11 herein. (See how sloppy Stenger is?)

Defendant restates and re-alleges his/her answers to the allegations contained in paragraphs 1 -9

11. Defendant is in breach of contract by failing to pay for charges incurred as agreed upon and there remains an unpaid balance of XXXXXXXXX

Denied. Plaintiff has failed to attach any evidence of said contract that defendant is allegedly in breach of. Furthermore, plaintiff has failed to prove, by lack of documentation, that any charges were incurred or agreed upon or that there is any unpaid balance of any amount allegedly owed to plaintiff.

Count II

Account Stated

12. Plaintiff restates and re-alleges paragraphs 1 through 11 herein.

Defendant restates and re-alleges his/her answers to the allegations contained in paragraphs 1 -11

13. Defendant(s) received and retained billing statements on the XXXXXXXX and failed to object to the accuracy of these statements.

Defendant states that he/she lacks knowledge or information sufficient to form a belief as to the truth of the allegation and therefore; denies. There is insufficient documentation attached to the complaint to support the allegation.

14. The account has become stated between the parties.

Denied. No agreement between plaintiff and defendant exists. Plaintiff has failed to attach documentation to support such an allegation.

Count III

Unjust Enrichment

15. Plaintiff restates and re-alleges paragraphs 1 through 14 herein.

Defendant restates and re-alleges his/her answers to the allegations contained in paragraphs 1 -14

16. Defendant (s) received, accepted and benefited from the use of the XXXXXX account and Plaintiff has not been fully paid the reasonable and agreed upon value of said usage of the account.

Denied. Plaintiff has not shown that defendant benefited from or even used the alleged XXXXX account, nor has plaintiff shown proof that the alleged account has not been fully paid. Furthermore, plaintiff has not shown that defendant agreed to the value of “said usage” of “the account”.

17. Defendant(s) have been unjustly enriched to the detriment of the Plaintiff and are therefore indebted to the Plaintiff in the amount stated herein.

Denied. Plaintiff has shown no enrichment to defendant nor have they shown any indebtedness to plaintiff.

Plaintiff’s affidavit of Indebtedness and ownership of account.

Then there are 5 clauses.

Please post those 5 clauses.

Obviously, these example answers are for informational purposes only and not to be construed as legal advice.

It would really help if others would comment.

Link to comment
Share on other sites

Now comes the undersigned affiant, who having first been duly sworn and cautioned according to law, dispose and states as follows:

1. I am the authorized Rep for XXXXXXXX(hereafter the "Plaintiff").  I am authorized to make this affidavit on its behalf, and information below is true and correct to the best of my information on belief based on the Plaintiff’s business records.

2. I have personal knowledge regarding Plaintiff’s creation and maintenance of its normal business books and records, including computer records of its accounts receivables.  This information was regular and contemporaneously maintained during the course of the Plaintiff’s business.

3. In the ordinary course of business, Plaintiff regularly acquires revolving credit account and/or other credit lines.  The records provided to Plaintiff have been represented to include information provided by the original creditor or its successors in interest.  Such information includes the debtor's name, social security number, account balance, the identity of the original creditor and the account number.

4. To the best of my knowledge and belief, the Defendant is not a minor or mentally incompetent person.

5. Based upon the business records maintained on account XXXXXXXXXX (hereafter "Account"), which are a compilation of the information provided upon accusation and information obtained since question, the account is the result of extension of credit to XXXXXXXX by XXXXXXXXXX, on or about XXXXXXXXXX said business records further indicate that Account was then owned by XXXXXXXXXXX sold or assigned XXXXXXXXX to Plaintiffs’ assignor which included the Defendant's Account XXXXXXXXX and on the Date Assignment, all ownership rights were assigned to, transferred to, and became vested in Plaintiff, including the right to collect the purchased balance owing of XXXXX.

 

I affirm under penalty or perjury that the above facts are true and correct.

 

The foregoing affidavit was signed to and subscribed before me this XXXXX March XxXX, 2013

 

 

Thank you so very much.  I appreciate all the help.

Link to comment
Share on other sites

  • 1 month later...
Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.