Being sued by a Lawyer for Midland Funding, lots of questions

[Lostboy38]

I am being sued by a lawyer for a JDB and have a few questions.

 

On the Summary of the Pre-Trial Conference, the Judge marked that I have an additional 21 days to Amend my pleading.  (I think he did this because I messed the first one up so bad.)

 

Unfortunately, I sent in a second pleading, a little better than the first but still lacking, (after reading here, greatly lacking), my question is, can I file another pleading to replace the 2nd pleading?  I still have til the 28th of Nov before the 21 days are over.

 

 

Can someone give advice?

 

Thanks, Lost

 

[bmc100]

How long ago did you file your amended answer?

 

Two, write out the complaint (minus personal information) and your amended answer as well.

[Lostboy38]

My amended pleading was mailed on 11-##-13.

 

Complaint

 

Now comes Plaintiff, MF LLC assignee of BoA by and through its attorneys, Atty Name, and for its Complaint against the Defendant, states as follows:

 

1. That the Defendant herein is indebted upon open account or pursuant to the contract, and defendant accepted same. (Orig 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 $5982.12

 

4. Plaintiff requests judgment for $6000.00, plus interest, costs and attorney fees.

 

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

 

Respectfully submitted,

 

Atty Law Office

 

There are 11 lawyers names listed and only one is checked.

 

There is an Affidavit sent along with it, but it was signed in, 2013 by someone working at the JDBs office.

[Lostboy38]

My 2nd pleading.

 

Lostboy38

Town, MI  Zip

 

November 19, 2013

 

Judicial Court

Court Addy

Town, MI 

 

Atty 1

Atty 2

Atty Addy

Farmington Hills, MI  48334

Atty Phone

 

RE: Case No. 13-####-GC

       Amended Pleading

 

To Whom It May Concern:

 

In response Summons and Complaint issued by Bank of America assignor to Midland Funding LLC via Attorney Received September 18, 2013.

 

To the best of my knowledge, this is not my account.  I have no recollection of this account.  There is a possibility of Identity Theft connected to this account.

 

I have no account with Bank of America or Midland Funding as I stated in previous letters to Atty. .  I have received no documentation proving or disproving this account even though this information was requested from Atty office in late 2011.

 

Therefore, as I have no recollection or records of this account and no proof has been submitted to me, either by Midland Funding, LLC or the Atty Law Offices, I categorically Deny all Complaints submitted in Case No.: 13-9979-GC  Midland Funding, LLC/Atty Law Office v Lostboy38.

 

Sincerely yours:

 

 

Lostboy38

[bmc100]

This is Stillman representing Midland. Two, what you submitted to court is not an answer. But you might have some useful information in the letters you wrote to Stillman in 2011. 

 

Did they never respond to the letters you sent them? Two do you still have the letters they sent you, your letters and proof that they received those letters?

 

You normally have 14 days to amend your answer from the date you file it. I would take a shot at amending that answer one more time.

 

Did they attach any documentation to the complaint?

[Lostboy38]

This is the updated pleading I would like to send now.

 

Defendant

Adderess

City, MI Zip

 

November 23, 2013

 

Judicial Court

Court Addy

City, MI  Zip

 

Attny Name

Attny Name

Attny Addy

Farmington Hills, MI  48334

Attny Phone

 

RE: Case No. 13-####-GC

       Amended Pleading #2

 

To Whom It May Concern:

 

In response Summons and Complaint issued by Bank of America assignor to Midland Funding LLC via Attny Name, Received September 18, 2013.

 

Complaint 1. Deny

            I have no idea of this account and have never “accepted Same.”

 

Complaint 2. Deny

            As I have never had an account with Plaintiff, no performance was possibly completed. 

            As I have never had an account with Plaintiff, no agreement to pay account was ever made.

 

Complaint 3. Deny

As I have never had an account with Plaintiff, the presently “due and owing” amount is not possible and no validated proof has been given.

 

Complaint 4 Deny

            The judgment amount requested has not been validated by any legal manner.

No signed contract has been produced stating whether or not interest, costs and attorney fees are to be paid.

 

As to the accompanying document received with the Summons and Complaint: “Affidavit of Named”

This affidavit should be stricken from the record as being unsubstantiated and should not be considered as PRima Facie. The affidavit is dated June 07, 2013, well past the 10 day limit given in MCL 600.2145, Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

And to mention, the date stamp used on the “Affidavit of Paula Fruth” is made with a stamp and not written by hand, brining into question as to whether or not the signature and the date were done on the same day.

 

To the best of my knowledge, this is not my account.  I have no recollection of this account.  There is a possibility of Identity Theft connected to this account.

 

Therefore: the Defendant requests a dismissal of this Complaint due to lack of evidence, improper evidence and failure to provide necessary proof of ownership of alleged account.

 

 

 

I have no account with Bank of America or Midland Funding as I stated in previous letters to Atty. Name.  I have received no documentation proving or disproving this account even though this information has been requested from Atty. Name’s office in late 2011.

 

 

 

Sincerely yours:

 

 

 

Lostboy38

[bmc100]

That is not an answer you would want to file.

 

STATE OF MICHIGAN - Centered in the middle of the page

IN THE X JUDICIAL DISTRICT COURT - CENTERED

 

MIDLAND FUNDING, LLC - if they pleaded they are the assignee

assignee of BofA

 

Plaintiff

 

v.                                                 Case No. XXXXXX

                                                    Hon. Judge's name

Lostboy

 

Defendant, Pro per

____________________________________________________________________/

 

Name of Law Office                                    Your Name

ATTORNEY FOR PLAINTIFF                       DEFENDANT, Pro per

    

Address                                                       Address

City, State Zip                                              City, State Zip

phone                                                          phone

____________________________________________________________________/

[Lostboy38]

Yes they replied to my letters, one they stated they needed more time to get the proof of debt and the second letter was copies of monthly statements.

 

The only other papers were from a "Legal Specialist" stating she knows the account.

 

State of Michigan

 

MF LLC v Lostboy38

 

Affidavit of Named

 

Named, whose business address is Addy, St. Cloud, MN 56303, certifies and says:

 

1.  I am employed as a Legal Specialist and have access to pertinent account records for MCM, 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 all the rights, title and interest to defendant's BoA account (Account #) (MCM Number ###) (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 $5982.12 as of 2010-12-22.

 

Stamp stating "LEFT BLANK INTENTIONALLY" at bottom of page.

 

Page 2

 

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

 

(Stamped Date)  Jun 07 2013

 

Name and signature of Named

 

State of Minnesota

County of Stearns

 

Signed and sworn to (or affirmed) before me on (stamped date) by Named.

 

Notary Public

[Lostboy38]

Their atty's did send me a Discovery package with a Bill of Sale and Assignment of loans.  it is for a bulk sale with no accounts listed on it.

[bmc100]

Now Comes Lostboy,  Defendant in self representation denies and responds to the Plaintiff allegations as follows:

 

1. The Defendant denies this allegation in its entirety. Provide the reason as to why you you deny. 

 

2. The Defendant denies this allegation in its entirety. Provide a reason

 

3. The Defendant denies.....

 

4. The Defendant denies....

 

The Defendant asks this court to dismiss this case in its entirety with prejudice.

 

Respectfully Submitted,

 

 

LostBoy

Defendant Pro per

 

 

 

Proof of Serivce

 

On this day of November ___, 2013, I Lostboy mailed by First Class US Postal Service a copy of the Defendant's Answer to:

 

Stillman Law Office

XXXXX Orchard Lake Rd.

Farmington Hills, MI 48XXX

 

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

 

 

____________

Lostboy

Defendant, Pro per

 

Dated: November ___, 2013

 

Make sure the body of your answer you double spaced and in at least 12 point font. 

[bmc100]

You could type up an affidavit and say you purchased one of my accounts on XYZ date. It does not mean that you did. 

[bmc100]

Was there an affidavit from BofA that came with the Bill of Sale?

 

Did they just provide you with one page or is there more? Is any of the information redacted?

 

Was there an affidavit to support the account statements?

[Lostboy38]

Yes, there is an Affidavit for BofA, Dated November 1, 2010 for the Bill of Sale.

 

There is a "billing" from MCM claiming they own this account, dated 12-4-2010

 

There is a "Certificate of conformity for Notary (Notary Name)" (Delaware BTW) who notarized the Affidavit from BofA for Bill of Sale.

 

There are two printouts with account num, name, my addy,etc. etc. (just a sheet of paper, nothing official on it.

 

There are 2 copies of a March 2008 statement, 2 copies of an April 2008 statement, 3 copies of an October 2008 statement and 1 copy of a November 2008 statement.

 

And a proof of service from Stillman.

[bmc100]

Does the BofA affidavit basically state that a pool of charged off accounts were sold to Midland on XYZ date...etc?

[Lostboy38]

Yes, a "Loan Schedule" and noted as being "Bulk Sale 10/6/10"

[bmc100]

That does not mean anything. Basically, they do not have much of anything. Without an affidavit from BofA authenticating the statements, as long as you challenge it in writing, those statements do not amount to a pile of beans.

 

Two, they cannot prove that they own your account and you will challenge the bill of sale. If you do it correctly, the judge will most likely dismiss the case.

 

They have two causes of action:

 

1. Breach of COntract

2. Account Stated.

 

You can knock the breach out, right from the start. Stillman did not attach a copy of the terms and conditions to the complaint and they did not state why. MCR 2.113(F)(1).

 

The account stated theory: As one of your reasons for denial, you will use MCL 600.2145 "Account Stated". All you are doing is pointing out to the judge that they did not attach an affidavit, the terms and conditions and proof of the account to the complaint. The affidavit is not dated within 10 days following the issuance of the summons. The Plaintiff has failed to create a Prima Facie case against the defendant.

 

Two, you are going to create your own affidavit. 

 

Once your case goes through discovery, it will become a case about evidence and the ability to lay a proper foundation for the admission of evidence. They will not have. 

 

After you get your answer right, you will file a Motion for Summary Disposition under MCR 2.116©(10). They already gave you their evidence, now beat them to it and file your MSJ. 

[Lostboy38]

Is this any better?

Double spacing and 12pt font used.

 

STATE OF MICHIGAN

IN THE ##TH JUDICIAL DISTRICT COURT

 

Midland Funding, LLC,

Assignee of Bank of America

 

Plaintiff,

 

v                                                                                  Case No. 13-####-GC

                                                                                    Honorable Judge Joshua M. Farrell

 

Lostboy38,

 

            Defendant.

 

____________________________________________________________________________/

 

Stillman Law Office

Michael R. Stillman (P42765)

30057 Orchard Lake Road

Suite 200

Farmington Hills, MI  48334

(248) 851-6000

Lostboy38

  Defendant, Pro per

Addy

City, MI  Zip

 

(###) ###-####

 

____________________________________________________________________________/

 

Now comes Lostboy38, Defendant in self representation denies and responds to the Plaintiff allegations as follows.

1. The Defendant denies this allegation in its entirety.  
   1. I have no idea of this account, have never saw any documentation about this account and have never “accepted Same.”
   2. No documentation has been presented providing responsibility, ownership or title to this account.
2. The Defendant denies this allegation in its entirety.
3. As I have never had an account with Plaintiff, no performance was possibly completed. 
4. As I have never had an account with Plaintiff, no agreement to pay account was ever made.
5. No proof of “Performance has been completed” has been produced proving this Complaint.
6. No proof of “defendant agreed to pay the account” has been produced proving this Complaint.
7. As I have never had an account with Plaintiff, the presently “due and owing” amount is not possible and no validated proof has been given supporting this Complaint.
8. As I have never had an account with Plaintiff, the judgment amount requested has not been validated by any legal manner.
9. No signed contract has been produced stating whether or not interest, costs and attorney fees are to be paid.
10. The Defendant denies this allegation in its entirety.
11. The Defendant denies this allegation in its entirety.

The Defendant asks this court to dismiss this case in its entirety with prejudice.

 

Respectfully Submitted,

 

 

Lostboy38

Defendant Pro per

 

Proof of Serivce

 

On this day of November 23, 2013, I Lostboy38 mailed by First Class US Postal Service a copy of the Defendant's Answer to:

 

Michael R Stillman (P42765)

Jay Lazar (P69480)

30057 Orchard Lake Road Suite 200

Farmington Hills, MI  48334 

 

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

 

 

___________________________________________

Lostboy38

Defendant, Pro per

 

Dated: November 23, 2013

[bmc100]

You have a good judge. I helped another poster who went in front of Farrell and he won against Stillman and Midland.

[bmc100]

You only number to be in alignment with the complaint 1-4. You do not make additional numbered lines for your reasons.

 

1. The Defendant Denies this allegation in its entirety. The Plaintiff.........continue with your reasoning. 

 

2. 

 

The last thing: You have two primary defenses:

 

1. Failure to state a claim where relief can be granted

2. Lack of Standing

[Lostboy38]

Comment removed.

[Lostboy38]

Should I wait to file my MSD and MSJ or do it right away?

[bmc100]

Get your answer right first, then we can get you straight on the MSJ.

 

In your answer you need to point out evidentary flaws.

 

For allegation 1 - The reason for your denial would be: Plaintiff failed to attach the terms and conditions of the account to the complaint. Per MCR 2.113(F)(1), if a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit, unless the instrument is a matter of public record or in the possession of the adverse party and pleading so states. Further, Plaintiff failed to adhere to MCL 600.2145 "Account Stated". which states that the written instrument, a copy of the account and an affidavit  dated within 10 days proceeding the issuance of the writ of summons is attached to the complaint in order to create a Prima Facie case against the opposing party. Here, in both causes of action, the Plaintiff failed to follow the the rule and law as a first hurdle in proving their claim.

[BTO429]

Yes they replied to my letters, one they stated they needed more time to get the proof of debt and the second letter was copies of monthly statements.

 

The only other papers were from a "Legal Specialist" stating she knows the account.

 

State of Michigan

 

MF LLC v Lostboy38

 

Affidavit of Named

 

Named, whose business address is Addy, St. Cloud, MN 56303, certifies and says:

 

1.  I am employed as a Legal Specialist and have access to pertinent account records for MCM, 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 all the rights, title and interest to defendant's BoA account (Account #) (MCM Number ###) (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 $5982.12 as of 2010-12-22.

 

Stamp stating "LEFT BLANK INTENTIONALLY" at bottom of page.

 

Page 2

 

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

 

(Stamped Date)  Jun 07 2013

 

Name and signature of Named

 

State of Minnesota

County of Stearns

 

Signed and sworn to (or affirmed) before me on (stamped date) by Named.

 

Notary Public

Two things you can do with this affidavit.

1) Have it deemed inadmissible as evidence because it is hearsay

2) Challenge every single thing the affiant states.

 

Just because she has access to the records does not mean she has intimate knowledge of how those accounts are serviced. She also cannot attest to the fact that those accounts are correct because she does not know how the owner before MCM handled the account. First of all she states that MCM is the current owner, ask for a copy of the sales contract, you need to know if the contract is a recourse or a nonrecourse contract. If it is a recourse contract then once the account went delinquent it would have been sent back to the seller of the account because they only recourse they have is with the seller and not the debtor. If they object you state that the only way to know if they have any recourse is to examine the sales contract. If they are not willing to provide the contract then you motion for a dismissal for failure to state a claim for which relief can be granted, because they have not proven they have recourse to sue as provided for in the contract. If they do provide the contract and it is a recourse contract they have no legal right to sue you, their complaint would be with the seller and they have misrepresented the character of the debt an FDCPA violation.

 

As far as answering the complaint you simply copy it and type under their accusations that you deny and file it with the court clerk. Or you can write a whole new document

 

Comes now the defendant,(name), in propria persona, in a special appearance as opposed to a general appearance for jurisdictional challenges, and under the penalties of perjury states the following,

in answer to plaintiffs complaint the defendant denies all allegations set forth in the complaint. The defendant claims the following issues exist in this suit before this honorable court.

1) Plaintiff has failed to state a claim for which relief can be granted. Plaintiff has failed in their attempt because they have not established by a contract of sale that they have a right to purdue defendant in a court of law for their alleged complaint.

2) Defendant claims that the court may not have personal jurisdiction or subject matter jurisdiction over the plaintiff or the defendant, the defendant requests the court examine this issue before continuing the case. "The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings." Hagans v Lavine 415 U. S. 533. "There is no discretion to ignore lack of jurisdiction." Joyce v. U.S. 474 2D 215.

(the reason for doing this is jurisdiction of the court must be on the record, if you were to win the case and later the plaintiff contested jurisdiction you can easily fix this claim by showing proof from the court record that you yourself already challenged the jurisdiction of the court over both parties and the court entered its jurisdiction on the record. Plus the court may determine for some reason that the plaintiff being a corporation has not made suffient ties to the state for the state to have jurisdiction over them and dismiss the case, rare, but you should examine this issue, it could play out in your favor, but if you later find out that jurisdiction was null and you did not raise the issue you lost the right to raise it, if the case has been decided. But there is suffiecient U.S. Supreme court law that says jurisdiction can be challenged at any time, but the best way is to challenge jurisdiction right off the bat.)

3) Defendant claims The doctrine of Laches would barr the plaintiff from this action. The alleged debt is very old and the Original Creditor never sought any rights against the defendant, since successive owners of a debt "step into the shoes of the original creditor" the plaintiff has also lost the right to assert any rights against the defendant.

[bmc100]

Gunny, this poster has a very friendly consumer advocate judge assigned to his case. 

 

Two, what you wrote is a motion for Summary Judgement under MCR 2.116©(1)(4)&(5).

[BV80]

3) Defendant claims The doctrine of Laches would barr the plaintiff from this action. The alleged debt is very old and the Original Creditor never sought any rights against the defendant, since successive owners of a debt "step into the shoes of the original creditor" the plaintiff has also lost the right to assert any rights against the defendant.

 

 

@BTO429

 

Laches is an equitable defense and does not apply to claims in contract.  As to an account stated claim, I'm not sure.

 

In any case, if the account is not outside the SOL, how has the plaintiff waited too long to file suit? 

 

By raising the laches defense, it's up to the defendant to show why the plaintiff has waited too long and how waiting has prejudiced him.