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triplec

Received summons - Michigan - Suggestions?

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Received a summons from a "mafia" type JDB.

 

There is one document attached.  A word document with a balance.  No signature..  no affidavit   no nothing.  I don't even know if this is real. 

 

The Attorney's firm representing the client use 3 names.  One of the names of the attorney's representing the "plaintiff/client" also owns the JDB firm listed under plaintiff.  (it is a  LLC and michigan offers LLC look-ups). In fact there was a collection licence revoked for this person under a defunct company name in the past leading me to ask the question does the plaintiff need to be licensed?  If so where do we go look up the license?

 

I am not sure how much to share in an open forum.  

 

Any suggestions would be helpful.  

 

 

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You've got to share more than that in order to receive any meaningful help.

 

I'm going to take a flying stab at the plaintiff's name: Capital Alliance Financial LLC. represented by Stenger & Stenger.

 

Are you saying that there wasn't even a complaint attached to the summons?

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Sorry to take so long getting back to the board.  I did not want trouble folks when there is so much information already posted.  No is the answer to the previous question...  

 

Thought I was doing great until...

 

 

 

l  called our "little town" self help center because tomorrow is my 21st day to file.  The lady who answered said she doesn't have a form for defendant to file a "Motion to Dismiss".  She said she never heard of it.  I told her I have over 50 pages of copy's of information as well as I typed my own "motion to dismiss".  She told me the only party who can dismiss the case is the plaintiff.  Is this correct?  I asked her what if it was a frivolously filed lawsuit and she did not answer.  Again telling me to seek counsel.  (which I did already and there is nothing affordable out here in the boondocks! plus no one wants to listen about the amount of documents and proof I have and they just want to do the affirmative defenses.) Maybe this should be the way whether I have proof  or not that what they are seeking is simply unjust fees and interest above and beyond the fees, interest and balance I have already paid.  (I did not use the card after 2004 and paid on it till 2010)

 

Not much to explain in the way of facts.

 

1.  Junk Debt Buyer who lost collection license in 2008, now does business through various interconnected LLC's.  The person who owns the company under plaintiff (LLC Certificate) is also a partner in the PLLC of attorney's representing the plaintiff who is the plaintiff.    HA!

 

2.  I used my cards often in the early 2000,'s both for personal and work together.  (back when they gave money away for 0% on a daily basis) Paid on it till 2010

 

 They are asking for a lot of money.  over $20,000 .  (I am saving everything on my website so after this ordeal I can go to the press, Washington DC, local politicians etc and complain)  All of it and I mean every penny is the interest increase from 2005 from because I was late by an hour in 2005 making an online payment.  I can show item by item over the course of 20 years the abusive practices.    

 

This is out of Control in Michigan.  Michigan is horrible which is why it gets a D- from NCLC National Consumer Law Center.  I can't believe this state is letting these scumbags run over all these folks with default judgement s.   Whewwwwww.....  Got that off my shoulders...  

 

4.  Only 1 letter was sent from this latest JDB.  Over the last 2 years I have 5 different sets of letters of companies claiming to own this debt and trying to collect.  

 

3.   I keep/kept detailed spreadsheet records and most correspondence with the bank.  3 times from 2005 to 2010 I sent multiple letters to the bank with detailed calculations showing where they made mistakes in improperly imposing interest rate increases and fees of which they got busted for in Hoffman v Citibank  2002-2010    The same exact years they did damage to my account.  They never responded.  I even sent  a letter to the CEO.

 

4.  Finally after paying the balance, membership fees as well as enough interest I defaulted because I lost my job in 2008 and they would not work with me and I stopped paying out of my liquidated retirement fund. (recorded all calls)  I figured the government would stop this crap one day..  BOYYYY  was I wrong...  

 

5.  I know many folks go after account stated first.  I just want to show that I have already paid the balance of all transactions on this card, fees and properly imposed interest rates .  All provable with statements and all but I am not including statements in the Motion to Dismiss.  I am including a spreadsheet of all transactions and corresponding "bank" reference numbers with payments in the next column.  Obviously after adding it up there is a lot more in payments then there were transactions, fees and interest.  

 

6.  I guess I was diagnosed obsessive compulsive (but who isn't) (hence I could be way ahead of these "folks" at our "self-help" center or I am just totally wrong).  21 days 16 hours a day studying this stuff I thought I was getting somewhere until I just hung up the phone a few minutes ago.

 

My question is should I be confident in filing my "Motion to Dismiss" 1st under  MCR 2.116 © (10) "genuine" because I already paid what was legally owed by me?  And 2nd  "Motion to Dismiss"  MCR 2.116 © (5)  and MCR 2.116 © (8) Account  State, Relevant Party, Lack of Standing?

 

 

Documents included in the original Summons and Complaint:   3

 

1.   the 6 complaints below and only one piece of white plain paper with no signature or notarization.   Only a stamp with "exhibit" on it stating I owe this company I never heard of a sum of money.

 

 

 

6 complaints:

 

1.  Defendant(s) entered into a Contract with Plaintiff or Plaintiffs Assignor, the account/loan number of which is ****, and pursuant to MCR 2.113(F)(1)( B) Plaintiffs claim is based on a written instrument which is not attached as it is in the possession of the adverse party.

 

2.  Defendant(s) defaulted under the terms and conditions of the Contract.

 

3. Plaintiff and/or its assignor(s) completed performance under the terms and conditions

of the Contract.

 

4. The account has been stated and/or is open between the parties.

 

5. As a result of Defendant's default Plaintiff claims breach of contract, open account,

account stated, and/or unjust enrichment.

 

 

6. The original claim amount due and owing by Defendant(s) to Plaintiff is $$$$$$

plus interest, costs and attorney fees.

 

 

 

 

Maybe I am wrong..  I have a list of affirmative defenses and copy of an answer to a summons and complaint ready but I understood I could file a motion to dismiss?

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I know nothing about MI law, but it is always a good idea to request an extension of time to answer.  You either get the extension and have more time to research or they ignore your email (happened to me several times) and you might have counterclaims.

 

You did a good job researching the plaintiff, but apparently you forgot to research the LAW.

 

Plaintiffs claim is based on a written instrument which is not attached as it is in the possession of the adverse party.

 

 

That's really WEIRD!  And I don't know how or whether it is relevant that they don't have a written agreement because you didn't post MI law.

 

I'm not sure about your motion to dismiss, if nothing else it will hopefully serve to give you some time to research the law.  Aside from the SOL, you need to find out whether they can LEGALLY demand interest, which is why the written contract might be important.  If they don't have it, they might not be entitled to interest (possibly lower interest) and attorneys fees (again depends on MI law).

 

And you need to research whether they have to be licensed in MI.

 

I'd be more helpful if you were in AZ.   Not having seen your answer or your motion to dismiss. it's hard to say which to file.  It's too late to ask for an extension and you REALLY should have some solid counterclaims with your answer to try to get them to go away.

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File your denial, don't try to prove your case in your answer. Mi has some weird laws, read bmc100' s pinned post on how to answer. I think if they didn't include a pleading of assignment you can and should file a motion to dismiss. This is from be c's thread. How to answer, and the pleading of assignment.

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.

MCR 2.111(D) - Form of denials, Each denial must state the substance of the matters upon which the pleader will rely upon to support the denial.

3. You cannot object to an allegation or just simply deny the allegations. You need to support the denial with a defense to the allegation or some other issue that exists. I see too many posters objecting to allegations, which is an easy path to a judgment.

4. As mentioned, you can list defenses to the allegations. The two primary defenses to JDB lawsuits on credit cards are 1) Failure to state a claim and 2) Lack of Standing.

And this:

6. MCL 600.2041 states the “every action shall be prosecuted in the name of the real party of interest. In nearly identical wording, MCR 2.201( requires that an action must be prosecuted in the name of the real party of interest. As a result, the Plaintiff has failed to state a claim where relief can be granted, pursuant to Masterspark Co. v. Hickerson, 211 Mich 411, 415; 179 N.W. 232 (1920), and McKnight v. Lowitz, 176 Mich 452, 453, 142 N.W. 769 (1913), an assignee must plead the assignment of the debt from the assignor within it’s complaint to establish that it is the real party of interest sufficient to support a cause of action.

7. Also, I have seen in every case that the Plaintiff never attached the bill of sale or other relevant documents to the complaint. Most times JDBs will not do so, since 90% of cases go uncontested.

8. I have also been advocating to many posters to file a motion to dimiss, prior to filing an answer. If you see that the Plaintiff did not plead the assignment, do not let the case move forward until they can either correct their mistakes by properly pleading the assignment and by attaching the proper documentation to the complaint.

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Thank you,   I have been following along the lines of filing a motion to dismiss like you suggested until I spoke with the lady from self help.   I think at this point I am going to merge it all together and submit it as affirmative defenses with the first one "Defendant asserts payment was made"   and attached the evidence.  

 

Of course the counter affidavit will be submitted and I could counter claim a few dollars in over payments based on  our original agreed upon interest rate.  

 

What I don't understand is if Citibank was guilty of imposing improper fees and raises in Interest rates in 2010 hoffman v Citibank (which was the death for me because I stopped using the card before 2005 and just paid around 500 a month for 5 years.  The amount they are asking for is for 1/2 of the amount of purchases I ever made and it does not include the amount over the amount of purchases I made equating to the interest and fees.   I don't know if folks understand that they may only be coming after unlawfully imposed changes to terms.  I can recalculate with a spreadsheet based on daily interest what is actually due after removing the unlawful changes.   I don't understand why are government does not make these companies recalculate what is owed based on all the suits the last 3 to 5 years. 

 

Anybody?

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Now you know why so many people default, they will never get it paid off.

You may think you have a strong case, but I caution you in that you will be admitting the debt, and sometimes the court doesn't care if the amount is correct, you admit to owning the account, therefore you pay.

I do know that if you have not used the card since 2005, but only paid on it, you should only be bound by the agreement in effect at that time. They will argue you did not dispute the new terms therefore they apply.

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I do know that if you have not used the card since 2005, but only paid on it, you should only be bound by the agreement in effect at that time. They will argue you did not dispute the new terms therefore they apply.

 

I thought the new terms were only applicable if you actually used the card? Use of the card means you accept the new agreement. 

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Yes spikey that's true, that is why I said should be bound by the terms in effect in 2005, but depending on the cc, some state you have to opt out or close the account even though you continue to pay on it. It would say in the agreement. They will argue the latter however, count on it.

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If you are forced to answer the complaint. Since a MTD/MSJ is not a responsive pleading. In the first allegation, you simply deny the allegation and state that you are not in possession of the terms and conditions of the alleged account. 

 

Under the Civil Rule, if they claim their cause of action is based upon a contract and they do not attach the contract to the complaint, then they have to stipulate that they believe you are in possession of it or it is public information...etc. If not, then you could easily get the breach of contract claim dismissed. 

 

Once you deny being in possession, you force them to produce the contract (terms), if they do not you can shoot down the contract claim.

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This complaint looks like a debt collection attorney in Rochester Hills with 3 names in their title who owned a JDB as well. 

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