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Being Sued by JDB and looking for assistance


matt7979
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1. Who is the named plaintiff in the suit? LVNV

2. What is the name of the law firm handling the suit? Strenger & Strenger

3. How much are you being sued for? $2000+

4. Who is the original creditor? Cap 1

5. How do you know you are being sued? servered summons and complaint a week ago

6. How were you served? handed to me

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? they sent me a few letters with settlement info, everytime I called to ask where debt originated and asked for original docs, they hung up.

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

10. When is the last time you paid on this account? Never, no knowledge of this account

11. What is the SOL on the debt? 6 years (credit statement says june 2007, but no payments are reported just the account being sold and in collections).
Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? suit servered, court is awaiting an answer

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? 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? 2 weeks left (original was 21 days)

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? 2 exhibits - An affidavit from LVNV and an account statement from the LVNV, both are from LVNV not OC.

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

_____________________________________________________________________________________

 

*****I have prepared, with the help of this amazing forum, a Defendants answer and affidavit, I will post these for review (ommitting person info and amount is rounded to nearest 1000) any and all help/suggestions is greatly appreciatted:

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Slow typer here and am posting everything as fast as I can, here is the summons/complaint and exhibit info. Thanks for the reply BTO, I will post Answer/Affidavit for review ASAP (I have 2 weeks till the 21 days is up)

 

Dates have been changed to the month/year format, names, addresses have been removed and amounts have been rounded to the nearest $1000.

 

STATE OF MICHIGAN IN THE xxTH DISTRICT COURT FOR THE COUNTY OF xxxxx

LVNV FUNDING LLC

Plaintiff,

V

ME

Defendant(s).


                COMPLAINT    


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

NOW COMES the above named Plaintiff, by and through its attorneys, Stenger & Stenger, P.C., and for its Complaint states as follows:

JURISDICTIONAL ALLEGATIONS

1)    Plaintiff is the assignee of Defendant's account issued by Cap 1.

2)    Upon information and belief, Defendant Upstanding Citizen, resides at my Address,my city, my County, Michigan.

3)    The amount in controversy, exclusive of interest and costs, is less than $25,000.00.

GENERAL ALLEGATIONS

4)    On June, 2007, Defendant(s) opened an account with Cap 1. An agreement ("Agreement") was delivered to 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 payments as agreed upon and the account is in default.

7)    As of October , 2013 there was due and owing the sum on $2,000+, as is more fully set out in Plaintiff’s Affidavit of Account attached a Exhibit A and account statement attached as Exhibit B.

8)    Despite repeated demands, Defendant(s) have 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 I BREACH OF CONTRACT

10)    Plaintiff restates and re-alleges paragraphs 1 through 9 herein.

11)    Defendant is in breach of contract by failing to pay as agreed upon and there remains an unpaid balance of $2000+.

COUNT II ACCOUNT STATED

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

13)    Defendant(s) received billing statement(s) on the Cap 1 accounts and failed to object to the accuracy of these statement(s).

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 benefitted from the use of the Cap 1 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 Plaintiff in the amount stated herein.

WHEREFORE, Plaintiff requests a judgment in its favor and against Defendant(s) in the amount of $2000+, together with interest continuing to accrue, and costs.


Respectfully Submitted, STENGER & STENGER
V
Attorneys for Plaintiff

 

EXIBIT A 

 

PLAINTIFF'S AFFIDAVIT OF INDEBTEDNESS AND OWNERSHIP OF ACCOUNT

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

1.    I am an Authorized Representative for LVNV Funding LLC (hereafter the "Plaintiff). I am authorized to make this affidavit on its behalf, and the information below is true and correct to the best of my information and belief based on the Plaintiffs business records.

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

3.    In the ordinary course of business, Plaintiff regularly acquires revolving credit accounts, installment accounts, service accounts 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 XXXXXXXXXXXXXXXX (hereafter "Account"),which are a compilation of the information provided upon acquisition and information obtained since acquisition, the Account is the result of the extension of credit to Me  by Cap 1 on or about 6/2007 (the "Date of Origination"). Said business records further indicate that Account was then owned by Cap 1, that Cap 1 later sold and/or assigned Portfolio XXXXX  to Plaintiffs assignor which included the Defendant's Account on 1/2009 (the "Date of Assignment") and on the Date of Assignment, all ownership rights were assigned to, transferred to, and became vested in Plaintiff, including the right to collect the purchased balance owing of $2000+.

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

Signed and Dated by LVNV employee on 10/8/2013

Notrized.

 

EXHIBIT B


LVNV Funding LLC
their address
city, st zip

Account Statement

Original Issuer:        Cap 1

            Unpaid Balance as of Oct/2013:    $2000+


Me
my Address
my City, MI  my Zip

Account # XXXXXXXXXXXXXXXX

This statement was prepared on behalf of LVNV Funding LLC based on the business records furnished by GE Money Bank Preferred Hair. This computer generated report has been produced on behalf of the debt purchaser. It is a computer generated summary; it is NOT an original statement.

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STATE OF MICHIGAN

IN THE xx DISTRICT COURT FOR THE COUNTY OF xxxx

 

   

 

 


LVNV FUNDING LLC                                                       

Case No. xx-xxxx-xx

 

                         Plaintiff,

V                                                                                                         Hon.

ME

 

                        Defendant, pro per

 

 

Their atty 1                                                                             ME

Their atty 2                                         

STRENGER & STRENGER, P.C.                                       

ATTORNEY FOR PLAINTIFF                                            DEFENDANT, Pro per

Address                                                                                   my address

city, MI zip                                                                             my city, MI zip

Court Inquires Ph:                                                                   my phone

Defendant/Counsel Ph:

Fax:

DEFENDANT’S ANSWER TO PLAINTIFF'S COMPLAINT

Now comes the Defendant, Pro Se, ME, who is unschooled in law and asks the court to take Judicial Notice of the enunciation of principles as stated in Haines v. Kerner, 404 U.S. 519, wherein the court has directed that those who are unschooled in law making pleadings and/or complaints shall have the court look to the substance of the pleadings rather than the form, to answer Plaintiff’s complaint as follows:

 

PLAINTIFF’S ALLEGATIONS


1.    Plaintiff is the assignee of Defendant's account issued by Cap 1.

Answer:  Deny.  Plaintiff has provided insufficient evidence to support this statement.  No Bill of Sale, Chain of Assignments or other Original Creditor documentation has been provided to prove the standing of the Plaintiff to bring suit, therefore, Defendant denies the allegation and asks the Court to dismiss the Complaint for Lack of Standing.  In addition, in the attached Defendants Affidavit Defendant denies all knowledge and responsibility for this unknown debt.

2.    Upon information and belief, Defendant ME, resides at my address, city, county, Michigan.

Answer:  Admit.

3.    The amount in controversy, exclusive of interest and costs, is less than $25,000.00.

Answer:  Admit. *****Wondering if I should DENY this also, I don’t want to admit to any amount owed though it is just referring to the amount they stated in #3, I just don’t want this to cause any issues of admission. Thoughts?****

4.    On June, 2007, Defendant(s) opened an account with Capitol One Bank. An agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiff s knowledge, is in Defendant's possession.

Answer:  Deny.  Defendant did not open any account with Capitol One Bank. in June of 2007.  No agreement was delivered to Defendant and Defendant is not in possession of any so called agreement.  See attached Defendants Affidavit.

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

Answer:  Deny.  Defendant has never used this account or accepted any agreement regarding this unknown account.  See attached Defendants Affidavit.

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

Answer:  Deny.  Defendant has no responsibility to pay for an account that is not his.  See attached Defendants Affidavit.

7.    As of October , 2013 there was due and owing the sum on $2,000+, as is more fully set out in Plaintiff’s Affidavit of Account attached a Exhibit A and account statement attached as Exhibit B.

Answer:  Deny.  Defendant has no knowledge of the particulars of this unknown account.  Defendant reiterates that this is not his account.  See attached Defendants Affidavit.

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

Answer:  Deny.  Defendant has no knowledge of the particulars of this unknown account.  Defendant reiterates that this is not his account.  See attached Defendants Affidavit.

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

Answer:  Deny.  Defendant has no contractual relationship with the Plaintiff and owes the Plaintiff nothing.  See attached Defendants Affidavit.  To   avoid substantial injustice, the Court should dismiss this complaint with prejudice.

COUNT I
 BREACH OF CONTRACT


10.    Plaintiff restates and re-alleges paragraphs 1 through 9 herein.

Answer:  Individual allegations answered as above.

11.    Defendant is in breach of contract by failing to pay as agreed upon and there remains an unpaid balance of $2,000+.

Answer:  Deny.  Defendant has no contractual relationship with the Plaintiff and has never had any.  Defendant never agreed to pay Plaintiff anything.  See attached Defendants Affidavit.

COUNT II
 ACCOUNT STATED

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

Answer:  Individual allegations answered as above.

13.    Defendant(s) received statement(s) on the Capitol One Bank. accounts and failed to object to the accuracy of these statement(s).

Answer:  Deny.  Defendant has not received any statements regarding a Capitol One Bank. account and was therefore unable to object to them.  Defendant reiterates that this is not his account. See attached Defendants Affidavit.

14.    The account has become stated between the parties.

Answer:  Deny.  Defendant has no contractual relationship with the Plaintiff and owes the Plaintiff nothing.  See attached Defendants Affidavit.  In addition, the affidavit provided by the Plaintiff as Exhibit A, is untimely under MCL 600.2145 and does not create a Prima Facia Account Stated claim as it was created more than 10 days prior to the filing of the complaint.

COUNT III
 UNJUST ENRICHMENT


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

Answer:  Individual allegations answered as above.

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

Answer:  Deny.  Defendant has not accepted, used or benefited from this Capitol One Bank. account.  Defendant reiterates that this is not his account. See attached Defendants Affidavit.

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

Answer:  Deny.  Defendant has received no benefit, economic or otherwise, from the Plaintiff.   See attached Defendants Affidavit.  In fact, Defendant has been forced to spend large amounts of time and effort in answering this improper complaint.

 

DEFENDANT’S COUNTERCLAIM

    

Based on MCL 600.5807 (8) “The period of limitations is 6 years for all other actions to recover damages or sums due for breach of contract”, the time for action has passed.  Evidence provided by Plaintiff, shows only that the alleged account was opened on June, 2007.  No transactions by Defendant are shown or alleged after that date.  MCL 600.5831 states “In actions brought to recover the balance due upon a mutual and open account current, the claim accrues at the time of the last item proved in the account.”  Based on the direct reading of the law, the time for action was prior to June, 2013.  As this action is time barred by the statute the Defendant requests that the Court dismiss this suit with prejudice along with imposing sanctions on Plaintiff for filing a time barred complaint and awarding the Defendant compensation for the time and effort required to respond to this complaint.

DEFENDANT’SUMMARY

Plaintiff has not proven that a valid debt exists.  Plaintiff has not proven that Plaintiff has standing to pursue this alleged debt.  Plaintiff has not proven that this alleged debt is the responsibility of Defendant.  In addition, Plaintiff’s own supplied evidence shows that Plaintiff has filed a time barred complaint.

Accordingly, Defendant prays that this Honorable Court dismisses this suit with prejudice, apply sanctions to Plaintiff for the knowing filing of a time barred suit in violation of MCL 600.5801 (8), and award Defendant compensation for time and effort expended in defending this improper suit.

Respectfully Submitted,

ME

Defendant, Pro per

 

Proof of Service

 

On this day of month ___, yyyy, I  ME mailed by First Class US Postal Service a copy of the Defendant's Answer to:

Their atty 1                                                                            

Their atty 2                                         

STRENGER & STRENGER, P.C.                                       

ATTORNEY FOR PLAINTIFF                                           

Address                                                                                  

city, MI zip                                                                

Court Inquires Ph:                                                                  

Defendant/Counsel Ph:

Fax:

 

 

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

______________________

ME

Defendant, Pro per

Dated: month___, yyyy

 

 

DEFENDANT’S AFFIDAVIT DENYING KNOWLEDGE OF AND RESPONSIBITY FOR UNKNOWN DEBT

 

 Now comes the Defendant Pro See, ME, as affiant, who states the following to be true and correct to the best of his knowledge and recollection:

 

            1)       That the Defendant has never had a Capitol One Bank. account.

2)       That the Defendant never entered into an agreement with Capitol One Bank. account

3)       That the Defendant has never had any account with LVNV Funding LLC.

4)       That the Defendant has never entered into any contract or agreement with LVNV Funding LLC.

 

I affirm under penalty of perjury that the above facts are true and correct:

  

________________________________________   Date   ________________________

 

State of: _______________________

County of: ______________________

On ____/____/______, before me, ____________________________________,

Personally appeared, _______________________________________________,

[__] Personally known to me

OR

[__] Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and has hereby acknowledged to me that he/she/they have executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.



Witness my hand and official seal



_______________________________________________
Notary Signature



_______________________________________________
Print Name

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I see others posting about filing an MSD(MSJ) in Lieu of an answer right off the bat,  but feel like I lack the knowlegde/confidence and that the court would automatically deny that motion. I am still debating myself on this one but am starting to feel more confident. I have found a few docs on Defendants Opposition to a MSJ (Which would work perfect for my situation when/if they file an MSD after I file my Answer), but not much pertaining to a Defendants MSD in Lieu of answer or maybe I was thinking of filing the Answer, then following up with a MSD? or should I wait for their MSD and then file my Opposition to their MSD?

 

Now heres the confusing part, when I spoke with the court clerk to verify the summons I found it odd that she asked if I was an attorney then acted like I was wasting their time because I wasnt, then she informed me that I could not file any Motion until I file an answer and only after the pre trial? is this correct?

 

I know I'm rambling and appologize for that, I'm just getting more excited seeing that I can actually fight this...:)Thanks for all the help

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You really did not need to answer each an every complaint, but there is nothing wrong with it.

 

Best and easiest if you want to deny the whole complaint is to say, defendant in this matter set before this honorable court (name of court), and under penalties of perjury, denies all allegations in each and every paragraph of plaintiffs complaint.

Put it in the form of an affidavit and have it notarized. Copy the complaint and attach it to the complaint and get it to the court.

 

Don't give them your whole defense strategy right off the bat,,,,all you have to do is either deny or admit to the complaint.

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Ok, so then something as simple as this;

 

DEFENDANT’S ANSWER AND AFFIDAVIT

 

Now comes the Defendant Pro Se, ME, as affiant, who states the following to be true and correct to the best of his knowledge and recollection. In this matter set before this honorable court for the STATE OF MICHIGAN IN THE xxth DISTRICT COURT FOR THE COUNTY OF xxxxxxxx, and under penalties of perjury, I, Me denies all allegations in each and every paragraph of plaintiffs complaint.

 

________________________________________   Date   ________________________

 

State of: _______________________

County of: ______________________

On ____/____/______, before me, ____________________________________,

Personally appeared, _______________________________________________,

[__] Personally known to me

OR

[__] Proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and has hereby acknowledged to me that he/she/they have executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.



Witness my hand and official seal



_______________________________________________
Notary Signature

_______________________________________________

Print Name

 

 

and then just attach it to a copy of the summons/complaint from LVNV? would this suffice as both the answer and the counter affidavit then? also should I include a copy of their Exhibit A and B (Plantiff Affidavit, Account statement) or just the Complaint?

 

Thanks,

Matt

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Also should I put the answer/affidavit that I attach to the complaint in this form?

 

 

                                                                                                  STATE OF MICHIGAN

IN THE xx DISTRICT COURT FOR THE COUNTY OF xxxx

 

   

 

 


LVNV FUNDING LLC                                                       

Case No. xx-xxxx-xx

 

                         Plaintiff,

V                                                                                                         Hon.

ME

 

                        Defendant, pro per

 

 

Their atty 1                                                                             ME

Their atty 2                                         

STRENGER & STRENGER, P.C.                                       

ATTORNEY FOR PLAINTIFF                                            DEFENDANT, Pro per

Address                                                                                   my address

city, MI zip                                                                             my city, MI zip

Court Inquires Ph:                                                                   my phone

Defendant/Counsel Ph:

Fax:

_____________________________________________________________________

 

and then the DEFENDANT’S ANSWER AND AFFIDAVIT stated above.......?

 

 

 

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Pretty much... whole lot easier that way wasn't it? After you file the answer you need to start working on motion to preclude as evidence, the nonsense affidavit, known as plaintiff exhibit A..

Read it and understand what it does say and what it does not say.....

 

While the affiant may be able to attest to the business practices of the alleged owner she cannot attest to the accurateness of the business records of the Original owner. She cannot attest as to whether the account is accurate, whether or not you entered into a contract with the OC, She cannot even attest to the fact that an obligation to the OC exists or not. There is nothing offered as support to the claims of the affidavit. Statements are not fact if they are unsupported and unverified.

 

Pick the affidavit apart piece by piece.

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That is a ton easier, thx..:)

 

Was wondering about filing either a MSD or even a MTD right from the begining (was reading BMC100 posts), but the court clerk said I could not file any Motion (MSD or MTD) until I file an answer and only after the pre trial? is this correct?

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Motion to dismiss right out of the bat will require you to claim either lack of standing to sue, lack of subject matter jurisdiction of the court, or failure to state a claim for which relief can be granted. 

I would say they made enough of an argument for standing, so the court would have subject matter, and I would say they stated a claim for which relief can be granted, if they win,,,,so what is now left to do is beat the heck out of their evidence. I would be working on discovery next.

Be ready to receive their discovery and admissions and interrogatories.

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Please read MCR 2.111 in it's entirety.

 

Here is an excerpt:

Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must
(1) state an explicit admission or denial;
(2) plead no contest; or
(3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial.
(D) Form of Denials. Each denial must state the substance of the matters on which the pleader will rely to support the denial.

 

If you make a general denial as has been suggested, you are effectively denying that you live at the address where you do reside (unless you no longer live there) and you are not following Michigan Civil Procedure.

 

As far as I can tell, there is no provision for a general denial in Michigan.

This quote is from the Michigan Courts web site:

 

"Each response must be numbered and must match the corresponding number in the complaint. For example, paragraph 1 in your answer must be a response to paragraph 1 in the complaint. You must respond to each numbered allegation in the complaint."

 

To answer your question about filing a MTD or MSD in lieu of an answer read MCR 2.116 (B) (1) & (2) & MCR 2.119.

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Did you ever send Stenger or LVNV a DV letter?

 

Did they send you  dunning letter?

 

Did the letters they send you state your rights?

 

Did the letters state who the original creditor is?

 

Did the letters show different amounts owed or that they were tacking on interest and fees after Cap One charged off the account?

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Did you ever send Stenger or LVNV a DV letter? no

 

Did they send you  dunning letter? no

 

Did the letters they send you state your rights? no

 

Did the letters state who the original creditor is? no

 

Did the letters show different amounts owed or that they were tacking on interest and fees after Cap One charged off the account? no

 

I didnt know I had a debt with Cap 1 until my credit union ran my credit report back in January 2013, when I started prying into where the card came from (original contract information and other authentic information), I get ignored from them and then this summons from LVNV pops up.

 

Also yes Savior I see where a general denial in my case would not suffice,  I would need to answer each count like in my original Answer. 

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Matt,

 

If you are being sued on a time barred debt, which is a FDCPA violation, you should be able to get a consumer lawyer to represent you for free due to the fee-shifting provision of the FDCPA. You may also be able to get statutory damages for yourself.   I would at least contact one or two lawyers and get a free consultation.  Here is one:

 

http://www.micreditlawyer.com/collection-lawsuit-defense/

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Ok thx debtzapper, I will make some calls and see what they can assist with. As of now, fortunatly I have both my Answer and Counter Affidavit ready to file and am now working on some discovery, admissions and ROGS information. Lots to do but am feeling more and more confident.

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Ok thx debtzapper, I will make some calls and see what they can assist with. As of now, fortunatly I have both my Answer and Counter Affidavit ready to file and am now working on some discovery, admissions and ROGS information. Lots to do but am feeling more and more confident.

 

Make sure you get one or two consultations before you file your answer.  Most attys will not represent you once you start defending yourself.

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If we look at paragraph 5 of the complaint, it seems to me that this debt could be past the statutes of limitations to sue...I will try to help I just got home from the hospital at 6 am, i have been really sick, that dang norovirus. Was in the hospital for several days.

Paragraph 5  Based upon the business records maintained on account XXXXXXXXXXXXXXXX (hereafter "Account"),which are a compilation of the information provided upon acquisition and information obtained since acquisition, the Account is the result of the extension of credit to Me  by Cap 1 on or about 6/2007 (the "Date of Origination"). Said business records further indicate that Account was then owned by Cap 1, that Cap 1 later sold and/or assigned Portfolio XXXXX  to Plaintiffs assignor which included the Defendant's Account on 1/2009 (the "Date of Assignment") and on the Date of Assignment, all ownership rights were assigned to, transferred to, and became vested in Plaintiff, including the right to collect the purchased balance owing of $2000+.

 

What you need to do is deny this, if you never had an account with Cap1. You need to stand firm of you never had an account. You need to demand strict proof that proves the account. You need to see if you can figure out when the last patment was made on this alleged account, from the date of last payment is when the statute of limitations starts. We need to figure out your states sol laws and how long they have to file suit.

 

They will more than likely ask for your bank records since you say the account is not yours, they will claim they need to see if a payment was ever made from your bank account. This is just a ploy to see your financial status. We can fight this is they ask for them.

 

You will have to send discovery and admissions to them. Develop you admissions in a way that if they do not answer them and you get them deemed admitted it will prove they have no reliable evidence and that they cannot prove you owe the debt.

 

You will also, if we prove the sol is past, have an fdcpa violation for suing on a debt that is past the sol. We can help you with that.

 

The fdcpa calls for statutory damages, but I am not sure of punitive damages. I will research this. I have a bunch of case law on the fdcpa but I need to go through it. You are in district 7 same as me, I have federal court ruling from district 7 that can help you.

 

Michigan has state law over collection of debts it can be found at Michigan compiled law, chapter 445 Act 70 of 1981.

You should review it. http://www.legislature.mi.gov/%28S%28ky2jo355g25adw45nzcv3iuo%29%29/mileg.aspx?page=getobject&objectname=mcl-act-70-of-1981

445.257 Action for damages or equitable relief; amount of recovery; civil fine; attorney's fees and court costs.

 

Sec. 7.

(1) A person who suffers injury, loss, or damage, or from whom money was collected by the use of a method, act, or practice in violation of this act may bring an action for damages or other equitable relief.

(2) In an action brought pursuant to subsection (1), if the court finds for the petitioner, recovery shall be in the amount of actual damages or $50.00, whichever is greater. If the court finds that the method, act, or practice was a willful violation, the court may assess a civil fine of not less than 3 times the actual damages, or $150.00, whichever is greater, and shall award reasonable attorney's fees and court costs incurred in connection with the action.

MI don't allow much in the way of damages under this law.

article 9 of Act No. 299 of the Public Acts of 1980...see if they are licensed and bonded correctly.

 

The 9th circuit has allowed punitive damages under the fdcpa in a few cases. I will have to research the 7th district.

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Well sorry to tell you this,,it is going to takes some time, a friend(ex friend now) has been in my research records and they are all out of order now. I had some of these research papers I was working on patents for. Now they are compromised, I do not know to what extent yet.

But any way I will get you shortly with some case law from our district, they are on the other computer.

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Not sure why that is BMC100, I went ahead and double checked any privacy settings and you should be able too, I will send a PM your way to verify this.

 

Thanks BTO for all the info, 1st and foremost, health is #1, take care of yourself and get healthy. I have denied that account in both my answers and counter affidavit and also am working on a Motion to strike their affidavit. I figure, if need be, I will strike during the discovery/rogs time.

 

Thanks agin Debtzapper, seeing that I have some time (2weeks) to get my finished Answers/Counter Affidavit in(post #4), I'm going to take most of that time to reach out to a few attorneys and see if there is some free assistance available.

 

all help and informtion is greatly appreciated, thx again..:)

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Review this case, It is precedent and gaining some popularity over false statements made in admissions and interrogatories of debt collectors in a collection suit. McCollough v Johnson, Rodenburgh & Lauinger, LLC No 09-35767, 2011 WL 746892 Its a 9th circuit case from Montanna.

The reason I am showing you this case is it deals with a lot of issues I bring up, It talks about the contracts between the collection agency and their attorneys they hire. These collection agencies are not as stupid as we think they are, but then again they are. When a collector hires an attorney, just like anyone else they have to sign a contract. Most of the collection agency contracts with attorneys have a warranty clause that states that the collection agency cannot warrant the accurateness of any of the data they provide. These contracts will also state that the attorney is responsible to determine their legal and ethical ability to collect these debts. I have also seen these contracts mention that the client must verify under oath that any data they provide will be verified as true and accurate.

This is why I always say to ask for the contract in discovery, they will always argue they do not have to provide it, client privilege, but I always argue that the contract will state their legal and ethical responsibilities and also state as to whether or not they have the right from the owner of the debt to even bring a suit. I will fight them tooth and nail on this. This case talks about the contract I just mentioned.

In the McCollough case the attorneys flagged the case for an SOL problem. The atty claimed a partial payment was made and the proof of this payment turned out to be false. The 9th circuit compared the case to Jenkins v Heintz 124 F3D 824 (7th circuit)

In Jenkins the atty had procedures in place that stated their clients must verify under oath that all charges to the account are true and accurate,

 

The court in McCollough also cited Turner v J.V.B.D. and associates, Inc 330 F3d 991(7th circuit) In the McCollough case the court digs extensively into the contract where it disclaimed the accuracy and validity of the data they provided. In my research I have found hat the 7th circuit and the 9th circuit rely on each others rulings. Do not take me to heart on this, I have just noticed a trend that is all.

Read the McCollough case it gives plenty of 7th circuit case law and the case itself is precedent, it also proves a lot of things I suggest from time to time.

Jdb,s and collection agencies have a contract with their attorneys.  and those contracts normally state that they do not warranty any data they give them, they normally state that it is the clients duty to verify the information they give them. Some where in the contract it will also state that the atty has the duty to legally and ethically determine if collection of the debt can be accomplished. But how often to they perform under the contract?

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@BTO429

 

They will more than likely ask for your bank records since you say the account is not yours, they will claim they need to see if a payment was ever made from your bank account. This is just a ploy to see your financial status. We can fight this is they ask for them.

 

 

The above is incorrect.

 

You are in district 7 same as me, I have federal court ruling from district 7 that can help you.

 

 

The OP is in the  6th Circuit.

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