Midland Funding and Stillman Law in MI; Going to Pre-trial Need Advice

[wendesdaughter 1]

Hi All,

 

I had been fighting Midland and Stillman for a few months when I discovered this forum today.  I had my motion to strike their bogus affidavit denied in court today and I'm wondering what my next steps should be.

 

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 Firm

3. How much are you being sued for?

Around $900

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 noticed of default judgement forwarded in my mail

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

Was never served, although a process server provided an affidavit to the contrary

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

No, the process server stated he served me personally, but I moved from the address two weeks prior to when he said he served me.  Not so coincidentally, it was supposedly on the very last day the summons would have been valid.

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, Wayne County -- Oakland at the time of Summons and Complaint

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

2009
11. What is the SOL on the debt? 6 years 

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).
Default judgement granted, motion for dismissal of default judgement granted "process servers lie" says the judge, he also said I had 21 days to answer, I did and also filed motion to strike affidavit of MCM employee attached to complaint, motion to strike denied today, now going to pre-trial.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
Yes
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?
Already answered, waiting for pre-trial notice.

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

Summons and Complaint, affidavit of MCM employee claiming to have personal knowledge of MCMs accounts.In response to my motion to strike, they sent a brief stating that the affidavit was not evidence, but merely an attempt to establish a prima facie case and without it they would just have to prove their case in the usual way.  

 

During my hearing today the judge said that he liked where I was going when I told him that I wanted to strike the affidavit because they had no standing to sue, but that they were right about the affidavit not being evidence and that he would have granted my motion to dismiss if I had filed one instead of that motion.  Now I'm wondering if it's too late to do that now that it's going to pre-trial.   I was all prepared to request discovery knowing that they don't have squat from the original creditors when I 'discovered' that Michigan doesn't allow discovery in small claims until judgement or at the judge's discretion (I asked him about this in court and he basically said no, that comes later).   I've done so much research, but now I'm not sure what to do next.

 

Advice anyone?

 

Thanks in Advance

[wendesdaughter 1]

Do I file a motion to dismiss now or is it too late?  Do I send an informal request for discovery to Midland or should I just wait for Pre-trial?  What do I need to bring to Pre-trial to prove my case i.e. that they have no standing?  The suspense is driving me nuts, lol!

[racecar 555]

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

[wendesdaughter 1]

Racecar, I have read that thread already. I have already answered and taken other steps and am now in pre trial so I wasn't sure if those circumstances applied to me. I've actually read all the threads that pertain to Midland in Michigan.

I still feel so ignorant. I'm looking for something a little more specific, which is why I posted my own thread.

If you, or someone, could please answer my specific questions above which I feel are still unanswered after reading, I would appreciate it. Thanks again!

[blindspot99 7]

Just to clarify. Are you in small claims or are you in district court?

 

The following answer assumes you are in district court. Read your the Michigan Court Rules for District Court. Section 2.300 speaks to Discovery.

 

2.301( In an action in which discovery is available only on leave of the court or by stipulation, the order or stipulation shall set the time for completion of discovery.

 

In my case when I went to the Pre-trial the judge ordered 60 days for discovery. He also ordered the same 60 days to submit witness lists and 90 days for motions.

 

Typically there are three different types of things you can ask for during discovery: Interrogatories, Admissions and request for documents. There are a lot of examples of how to approach using these in your case and how you use them depends on your strategy.

 

From what the Judge conveyed I would suggest posting (retracted of course) what the plaintiff filed in the original complaint. If the judge indicated that if you had filed a motion to dismiss for lack of standing prior to discovery and it would have been granted there might be something in the original pleadings that are lacking such as they did not properly plead the assignment from the original creditor. 

[shellieh98 1,505]

how many days of your 21 are left?  I really don't know the rules of MI, but maybe you could try the motion to dismiss, cite the reasons (failure to serve properly etc) if it fails then file the answer. (if you have time)   The judge should give you discovery at the pre-trial if it doesn't get dismissed.  But don't take my advice ask @peanutrs or @bmc100, they are both from your state and have good experience.

[bmc100 236]

The poster is in the drivers seat right now. He just needs to sit back and wait until Friday. Sorry, I thought this was blindspot's post.

[bmc100 236]

It is already game over, this poster received a default judgement. Now, you need to file a motion for the court to set aside the judgement for lack of service.

 

You have to show proof that you were never served based off of the affidavit the process server signed showing the address you were allegedly served at.

 

there is no need to file an answer or send out discovery. Now that they have a judgement, they are most likely bringing you into court to figure out where you work or where your bank accounts are at to garnish.

[wendesdaughter 1]

I already filed a motion to dismiss the default judgement and that was granted. The judge then said I had 21 days to file an answer. I filed an answer and at the same time filed a motion to strike the affidavit of the midland employee. That motion was denied in court yesterday. The 21 days to answer has been up for quite some time and we are now waiting for a pretrial date. I'm sorry if I wasn't clear about that. This is small claims court by the way.

[bmc100 236]

A Motion to strike is premature. You have to wait until trial to file that.

[blindspot99 7]

Small claims rules are different from district court. It is more of a streamlined process. I believe when you go to your pretrial you would have to get permission from the court to have discovery otherwise there normally is none in small claims. Check the small claims court rules to be sure. BMC100 is right the motion to strike was premature.

 

But again I suggest posting the original complaint and your answers (retracted) so we can get a better idea what the judge was hinting at in regards to dismissing the case. I can only guess by what you have written that they did not plead something properly or did not attach proper proof of standing which the judge caught and gave you a hint as to how to proceed.

[bmc100 236]

Post the redacted complaint and we can help  you with your answer.

 

Plus, any documents attached the complaint. You dont need to post the entire docs, just what they are.

 

If they filed an affidavit, post the affidavit and the date it was signed.

[bmc100 236]

Since I reread your original post and you filed an answer. The judge said he would have granted your MTD, so send out discovery and file your own MSJ. If he would have granted your MTD, it would have been granted without prejudice. This time force the Plaintiff's hand and since the judge might already be upset with the Plaintiff's ATTORNEY, you can get a better ruling from this judge going the MSJ route than filinga MTD.

 

I would have to see what is in their complaint, it sound like all they attached was an affidavit from MCM to see what statutes are applicable under MCR 2.116©.

[wendesdaughter 1]

Thanks for your help guys.  I know you all know how hard it can be to try to navigate this sea of information and not be exactly sure you're doing it right.  

 

The first notice I got of the lawsuit was an order of default judgement in the mail forwarded from my old address.  It was issued 4/30/13

First summons issued 11-19-12, expired 2-18-13.

 

This is their original complaint:

Now comes 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 same. (original Account:)

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 $.

4. Plaintiff requests judgement for $ 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 Dated Oct 12, 2012.  

 

Attached is an affidavit: 

 

MCM Employee whose business address is....., 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 the plaintiff.  I am a competent person....Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's GE MONEY BANK (hereinafter "the account").  I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on the plaintiff's behalf.

2. MCM's records show that the defendant(s) owed a balance of $.  Such balance may continue to accrue interest at the rate set forth in the cardholder agreement/original contract and/or required by law, until suit is filed, after which interest on the unpaid balance shall accrue as required by law and as set forth within the terms of the statute.

I certify under penalty of perjury that the foregoing statements are true and correct to the best of my knowledge.

 

Signed August 28 2012, Notarized Aug 28, 2012 Both  in the same state

 

 

The complaint and affidavit are super old.  They actually got a second order for summons and complaint for some reason but they got it before the original one expired.  The second summons was issued 2-14-13 and expired 5-16-13.  They supposedly served me personally 3/17/13.  They also filed an order for alternate service a week after their second summons and complaint.  In this one it says they may serve me by first class mail, tacking to my door or certified mail.  Strange that they chose the affidavit from the process server as their proof of service.

 

My answer seems kind of lame now that I know a bit more about answering.

 

My answer:

 

Defendant,

Attorney for defendant, in answer to the complaint, states:

1. disagree with the statements in paragraph 1 because I do not owe the debt alleged .

2. disagree with the statements in paragraph 2 because I do not owe the debt alleged.

3. disagree with the statements in paragraph 3 because I do not owe the debt alleged .

4.disagree with the statements in paragraph 4 because I do not owe the debt alleged.

 

continued on page 2.

IMPORTANT: If you have affirmative defenses, you must state them now using the last page of this form. If you do not, the court may prohibit you from

raising them later. An affirmative defense is a defense claiming that the plaintiff is not entitled to a judgment because other facts exist that create a lawful defense.

Affirmative defenses allow you to provide information to the court that is not stated in the plaintiff’s complaint.

CERTIFICATE OF SERVICE

I certify that on this date I served a copy of this answer on the plaintiff(s) or their attorney(s) by

personal service. first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3).

CASE NO.

 

AFFIRMATIVE DEFENSES

Defendant, Attorney for defendant, states the following affirmative defenses:

1. I paid this debt in full (satisfied). Attached is proof of payment.

2. This action is barred by the statute of limitations because

the plaintiff failed to sue within six years of , the last activity on the alleged account. MCL 600.5807(8).

the alleged contract involves a motor vehicle retail installment sales contract or the sale of other goods, and the plaintiff

failed to sue within four years of , the last activity on the alleged account. MCL 440.2725(1).

the plaintiff failed to sue within three years after the alleged contract of sale of a mobile home on .

MCL 125.2333.

3. I paid an amount that the plaintiff accepted as payment in full (accord and satisfaction). Attached is proof of payment.

The debt was discharged in bankruptcy. The case number was .

4. The contract is void or voidable because

I was a minor when the alleged contract was made. My birth date is .

I was not mentally competent when the alleged contract was made. Probate case number .

Attached are my letters of conservatorship/guardianship.

there was no valid contract (no meeting of the minds) because .

5. The contract was severely unjust or extremely one-sided (unconscionable).<---------- this one is checked

6. I am not liable for the alleged damages because of the plaintiff's contributory negligence.

7. The alleged contract is unenforceable because it is not in writing (statute of frauds).

8. My vehicle was repossessed and later sold in a commercially unreasonable manner. MCL 440.9607(3).

9. The contract should not be enforced because of the plaintiff’s improper conduct (fraud and/or duress).

10. The goods purchased were defective (failure of consideration).

11. The terms of the contract did not express what the parties intended (mutual mistake).

12. I have not been credited for all payments made on the alleged account. Attached is proof of payment.

13. Other:The debt has been reported to the creditor (GE Moneybank) as fraud. <--------This one is checked

 

 

 

My motion to strike:

STATE OF MICHIGAN

IN THE  JUDICIAL District COURT

Midland Funding LLC, Case No: 

Plaintiff

Vs.

, an Ind.,

Defendant.

_________________________,

Stillman Law Office

By: Michael R. Stillman (P42765)

Attorneys for Plaintiff

7091 Orchard Lake Rd., Suite 270

West Bloomfield, MI 48322-3651

(248) 851-6000

_________________________,

MOTION TO STRIKE AFFIDAVIT OF ..........

 

The following court rule governs motions to strike pleadings and authorizes the relief sought in 

the Defendant’s accompanying motion:

 

( Motion to Strike. On motion by a party or on the court’s own initiative, the court may strike 

from a pleading redundant, immaterial, impertinent, scandalous, or indecent matter, or may 

strike all or part of a pleading not down in conformity with these rules. MCR 2.115(

 

It is well settled than an affidavit filed in support of or in opposition to a dispositive motion must

include an averment that the affiant, if sworn, could testify competently to the facts contained in the 

affidavit. Such an affidavit must also be based upon the affiant’s personal knowledge as an affidavit 

based upon an affiant’s information and belief is insufficient to support a summary judgment. 

In this matter, Plaintiff has submitted the affidavit of Legal Specialist ............... in support 

of plaintiff’s complaint. Ms. ................ is not an employee of the original creditor GE Money Bank and 

therefore has no personal knowledge of the account (Original account number ........) or 

alleged balance. The affidavit states that . ................. alleges that she has personal knowledge of 

Michigan Credit Management’s records, not GE Money Bank’s records. .................. statements about 

the alleged debt are hearsay.

Finally, the affidavit fails to show affirmatively that .............., if sworn as a witness, can testify 

competently to the facts stated in the affidavit. This defect alone is sufficient basis to strike the affidavit.

For these reasons,. ......... affidavit must be stricken from the record in this action as it 

was not drawn in conformity with MCR 2.119((1)(a), MCR 2.119((1)©

Conclusion

WHEREFORE, the defendant respectfully asks this Court to strike the affidavit of ...........

pursuant to MCR 2.115(.

Respectfully submitted,

 

I certify that a copy of the above document was served to the Plaintiff’s Attorneys on June 21, 2013 by 1st

class mail.

 

I realized later that I said Michigan credit Management instead of Midland.. oh well!  Ideas?  Comments?  

 

Thank you again guys.  Sorry for the delayed reply.  I work afternoons.

[wendesdaughter 1]

Now that I think of it I might be totally wrong about it being in small claims court. I think it's the civil division of the district court. I'm sorry, this whole process is still very new to me.  I'll check with the court tomorrow.  I think for some reason I was thinking it was the same thing.

[wendesdaughter 1]

Also,  Please let me know if you want me to post Midland's response to my Motion to Strike.

[wendesdaughter 1]

Confirmed with the court, it's a civil case in district court. It's the same window at the court as small claims so apparently people get confused about it a lot. I still feel retarded though!

[bmc100 236]

The MI Supreme Court ruled that both a breach of contract and account stated claims fall under the 6 year SOL.

 

Your answer - You either had to deny or admit to the allegations, not disagree. A loan cannot be in the sole name of a minor. If you were a minor at the time you entered into the loan contract without a parent or guardian signing on your behalf, it would be unenforceable.

[shellieh98 1,505]

bmc those were options on her canned paperwork, she made the ones she checked in bold.

[wendesdaughter 1]

Those were forms I got from the court. They were preformatted. You check the box that applies and fill in the line. The ones I bolded were my defense. On the first page you can either check agree, disagree or claim no knowledge and fill in the rest of the sentence stating why. On the second page you check preformatted affirmative defenses or list your own under 13. Other:

[bmc100 236]

There was no contract, statements or terms & conditions attached to the complaint?

 

The affidavit, which was stale and did not meet the business records exemptions MRE 803(6) or self-authentication MRE 902(11). You do not need to file another motion to strike, but rather you can file an objection to the affidavit (only if this thing goes to trial).

 

Stillman did not attach the bill of sale to the complaint either. It is not ripe yet, but you will file your own MSJ using MCR 2.116©(5) and (10). (5) is a lack of standing and (10) is based upon the evidence, complaint, affidavits...etc a party is entitled to judgment.

 

If Midland does not supply another affidavit supporting any docs they produce, you need to argue that they do not meet foundational requirements under MRE 803 or 902!!!

[wendesdaughter 1]

Ok, that sounds great.  Thank you.  So just to be clear, I should wait until I get my pre-trial date to start doing this?  I just don't want to wait too long and miss any opportunities.  In this MSJ, prejudice would attach assuming the judge approved it?  Should I do this before their file theirs?  I think timing is the big thing that has me confused here if you hadn't guessed.

[wendesdaughter 1]

Thank you everyone who helped me with this case.  I ended up winning with  a Motion to Dismiss without prejudice.  I wanted to get with prejudice, but the Judge said he couldn't grant it.  Maybe I should have filed the Motion for Summary Judgement, but I thought it was too late to do so.  Anyway, thanks again for all your help everyone.  I couldn't have done it without you.

[shellieh98 1,505]

Good job. I believe bmc100 may have something in his post that is pinned on how to collect your costs.

[wendesdaughter 1]

Thanks shellieh98,

 

I was thinking about it, but since MI only charges $20 to file a motion I'm only out $40 and I kinda want to just be done with it.  It's been stressful for me!