fearthereaper2968

Sued by Midland Funding, Breach of Contract or Account State, Need help with Answer

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Hello everyone,

 

I am being sued for CC debt by Midland and need some help (even after reading bmc100's thread and tons others), it mostly pertains to the answer. I want to thank you in advance for your help! I would love to put together a form for every step of my Michigan suit, so others could simply enter their information and tune some of the responses to their particular case. Hopefully that would lift some burden off anyone sued in the future.

 

I have attached the entire complaint (edited of course) and listed a google drive location below where you can view it

Link: Removed until fully edited

Basically I'm not sure if this is account stated or breach of contract. I'm leaning towards breach of contract, but I'm not sure.

 

Complaint:

1. The plaintiff is the owner of the within credit card account through Purchase, bearing account number XXXXX.

 

2. By use of the account, the defendant became bound by the terms in the credit card agreement. The existence is established in the exhibit attached hereto as Exhibit A.

 

3. The plaintiff has exercised its rights pursuant to the terms of said agreement to accelerate the time for payment of the entire balance due and owing by the defendant to the plaintiff.

 

4. That there is now due and owing to the plaintiff by the defendant, the sum of $1500ish on said credit card agreement.

 

5. Although demand has been made upon the defendant to liquidate the balance due and owing, the defendant failed to do so.

 

I don't see an affidavit in here dated even close to the summons date. If none, do I file a MTD or MSJ? I’d like to just get a PTD at a reasonable price so it is removed from reporting.

If it is breach of contract, did they need to attach the contract? They one have the front and back of a statement!

 

If it is account stated,  

 

Here are my current Answers and Defenses:

1.     Denied: Responding Party objects to this request on the ground that it is vague, ambiguous and unintelligible in that Responding Party has to speculate as to the meaning of "the credit card" and "the account."

2.     Denied: This request calls for admission of matter defendant has denied and thus it is improper.

3.     Denied: This request calls for admission of matter defendant has denied and thus it is improper.

4.     Denied: This request calls for admission of matter defendant has denied and thus it is improper.

5.     Denied: This request calls for admission of matter defendant has denied and thus it is improper.

 

 

 AFFIRMATIVE DEFENSES (Should I use this? Do I need to list a defense for each complaint item?)

 

As and for a Defense

The plaintiff has failed to provide legal evidence that they are legally entitled to collect the debt.

 

I will add the certificate of service.

 

If it is Breach of Contract, I really haven't seen any answers. So i could use some help.

 

Questions Summarized

Breach of contract or Account Stated? ACCOUNT STATED

Is there an affidavit? NO

Should I file an Answer, MSD, or MSJ?

Is my answer good and complete? Or should I just use an Affirmative Defense?

Should I attach an affidavit?

 

 

 

1. Who is the named plaintiff in the suit? Midland Fundling LLC
2. What is the name of the law firm handling the suit? Weltman
3. How much are you being sued for? $1500ish
4. Who is the original creditor? Midland Fundling LLC
5. How do you know you are being sued? Summons
6. How were you served? In person, at home
7. Was the service legal as required by your state? Yes
8. What was your correspondence with the plantiff  before you think you were being sued? Calls I think, but I'm not sure.
9. What state and county do you live in? Michigan
10. When is the last time you paid on this account? I don't recall
11. What is the SOL on the debt? SOL is 6 years I think, the debt is not older than 3 years.
12. What is the status of your case? Suit served? Motions filed? I have until Friday to file an answer o MTD.
13. Have you disputed the debt with the credit bureaus? No
14. Did you request debt validation before the suit was filed? No
15. How long do you have to respond to the suit? I have until Friday to file an answer or MTD.

16. What evidence did they send with the summons? The entire complaint is on a google drive that is viewable in PDF here: Removed until fully edited

 

 

Again, I thank all of you in advance for your help and comments. I apologize if there is a thread that I missed, I have been searching this site for a little over 2 weeks.

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This is an account stated claim.

Here are some points to consider:

1. They refer to a 'card member agreement' ....... no such agreement was provided. You have no idea as to the terms or conditions of the agreement, nor does the court. MCR 2.113 (F) (1)

2. The 2 bills of sale make no mention of the account that they allege you owe. Standing will be an issue for them.

3. There is no affidavit of debt. They haven't even established a prima facie case against you. MCL 600.2145

4. Exhibit A is a bill of sale which doesn't, in any way shape or form, establish the existence of an account allegedly used by you. There is no reference to you or your account number in that bill of sale ........ nor in any of them for that matter.

 

These are just first thoughts ........ others will chime in.

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The dates on these documents in the complaint are all off:

 

1) Bill of Sale is dated in 2009 from GE to Assent

2) The Affidavit is dated in 2010 - which is not on common.

3) The certificate of conformity is dated in 2011, well after the sale took place. The certificate of conformity is created to support the bill of sale. The two do not line up. It is like Midland was lacking it and took it from another one they had.

 

Midland is based in Minnesota, but GE is not.

 

Your answer needs work. You do not want to submit that. Also, you should create your own affidavit even though Midland does not have one. 

 

I wrote in the 1st post on my thread how to respond to each allegation per MCRs. Your's are not even close to that. 

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@fearthereaper2968

Welcome. In your attached Complaint pdf, please edit page 3 to remove personal info. 

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The dates on these documents in the complaint are all off:

 

1) Bill of Sale is dated in 2009 from GE to Assent

2) The Affidavit is dated in 2010 - which is not on common.

3) The certificate of conformity is dated in 2011, well after the sale took place. The certificate of conformity is created to support the bill of sale. The two do not line up. It is like Midland was lacking it and took it from another one they had.

 

Midland is based in Minnesota, but GE is not.

 

Your answer needs work. You do not want to submit that. Also, you should create your own affidavit even though Midland does not have one. 

 

I wrote in the 1st post on my thread how to respond to each allegation per MCRs. Your's are not even close to that. 

 

Thank you for your help so far @bmc100 .. I must have misread your first post. Do I need 5 defenses each citing the MCL?

 

 

ANSWER

 

1.            The Defendant denies this allegation in its entirety.

2.            The Defendant denies this allegation in its entirety.

3.            The Defendant denies this allegation in its entirety.

4.            The Defendant denies this allegation in its entirety.

5.            The Defendant denies this allegation in its entirety.

 

DEFENSES

 

1.      The Plaintiff has a Lack of Standing. The Plaintiff has failed to establish proof of ownership of the alleged account and has not provided proof of standing to sue. MCR 2.112(A)(2).

 

2.     The complaint does not comply with MCR 2.113(F), the written credit card agreement needs to be attached to the complaint if it is not in the possession of the defendant or of public record as stated in the Defendant’s Answer. The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account.

 

3.      Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

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Those are not defenses. Those are reasons as to why you deny. 

 

Defenses are a lack of standing and failure to state a claim.

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@bmc100 & @Savoir , I took the day off work and re-read the Michigan part of the forum as much as I could.

 

Should anything be removed or added for the answer?

 

ANSWER

 

 

1.            The Defendant denies this allegation in its entirety. The Plaintiff has failed to establish proof of ownership of the alleged account and has not provided proof of standing to sue. MCR 2.112(A)(2).

 

2.            The Defendant denies this allegation in its entirety. The complaint does not comply with MCR 2.113(F), the written credit card agreement needs to be attached to the complaint if it is not in the possession of the defendant or of public record as stated in the Defendant’s Answer. The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account. Furthermore, Defendant also states that he never had an account with plaintiff nor is any alleged account with plaintiff in default.

 

3.            The Defendant denies this allegation in its entirety. Defendant has already stated the complaint does not comply with MCR 2.113(F), as the Plaintiff has failed to attach the alleged CREDIT CARD agreement to support the allegation.

 

4.            The Defendant denies this allegation in its entirety. Defendant has already stated the complaint does not comply with MCR 2.113(F), as the Plaintiff has failed to attach the alleged CREDIT CARD agreement to support the allegation. Furthermore, Plaintiff has not provided sufficient proof, by way of admissible documentation, that Defendant has a “sum due” to plaintiff.

 

5.            The Defendant denies this allegation in its entirety. Defendant has already denied that he/she owes the Plaintiff. Furthermore, Defendant states that he has never received a demand for the alleged amount due from plaintiff. Defendant has already stated that he never had an account with  the Plaintiff nor is any alleged account with plaintiff in default.

 

Most importantly does their need to be another section with Affirmative Defenses? (example below)

 

DEFENSES
1. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action. 

2. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.
3. Midland Funding LLC has not proven that XXXXX is the real party in interest. Defense demands proof of ownership specifically that the alleged account XXXXXX was purchased
4. Midland Funding LLC has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.
5. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

6. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

 

I will add an affidavit and certified mail (return request), as there are alot of templates here.

 

Again, I thank you for your time. Do you have bit coin accounts to accept tips?  :-)

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Your answers are fine ........ just a little wordy. You must state a reason why you deny an allegation but you don't have to give them the rule or case law that you rely on to support your denial. I like to keep things simple. Let them do the work.

 

Below your answers you should include a separate section entitled Affirmative Defenses.

MCR 2.111 (F) (3) spells out the requirements and defenses you may use.

 

Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting .....................

 

 

No tipping required!

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@bmc100 & @Savoir , I took the day off work and re-read the Michigan part of the forum as much as I could.

 

Should anything be removed or added for the answer?

 

ANSWER

 

 

1.            The Defendant denies this allegation in its entirety. The Plaintiff has failed to establish proof of ownership of the alleged account and has not provided proof of standing to sue. MCR 2.112(A)(2).

 

2.            The Defendant denies this allegation in its entirety. The complaint does not comply with MCR 2.113(F), the written credit card agreement needs to be attached to the complaint if it is not in the possession of the defendant or of public record as stated in the Defendant’s Answer. The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account. Furthermore, Defendant also states that he never had an account with plaintiff nor is any alleged account with plaintiff in default.

 

3.            The Defendant denies this allegation in its entirety. Defendant has already stated the complaint does not comply with MCR 2.113(F), as the Plaintiff has failed to attach the alleged CREDIT CARD agreement to support the allegation.

 

4.            The Defendant denies this allegation in its entirety. Defendant has already stated the complaint does not comply with MCR 2.113(F), as the Plaintiff has failed to attach the alleged CREDIT CARD agreement to support the allegation. Furthermore, Plaintiff has not provided sufficient proof, by way of admissible documentation, that Defendant has a “sum due” to plaintiff.

 

5.            The Defendant denies this allegation in its entirety. Defendant has already denied that he/she owes the Plaintiff. Furthermore, Defendant states that he has never received a demand for the alleged amount due from plaintiff. Defendant has already stated that he never had an account with  the Plaintiff nor is any alleged account with plaintiff in default.

 

Most importantly does their need to be another section with Affirmative Defenses? (example below)

 

DEFENSES

1. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action. 

2. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

3. Midland Funding LLC has not proven that XXXXX is the real party in interest. Defense demands proof of ownership specifically that the alleged account XXXXXX was purchased

4. Midland Funding LLC has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

5. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

6. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time. 

 

I will add an affidavit and certified mail (return request), as there are alot of templates here.

 

Again, I thank you for your time. Do you have bit coin accounts to accept tips?  :-)

 

I'll let others with more knowledge weigh in here. I will say it's dangerous to reserve the right to plead other affirmative defenses. Some defenses are waived if not pleaded in the initial answer. You can freely amend with permission, unless it would be futile to do so. Check the MCR.  Did you read this law review article on answering the complaint? 
 
Make certain you put your AFFIRMATIVE DEFENSES under a separate and distinct heading. Believe it or not, our JDB attorney tried to win a motion for summary disposition on the technicality of throwing out all affirmative defenses on the heading not being distinct enough. They didn't prevail on the motion.
 
MCR Rule 2.111 General Rules of Pleading 
(F) Defenses; Requirement That Defense Be Pleaded. 
 
(3) Affirmative Defenses. Affirmative defenses must be stated in a party's 
responsive pleading, either as originally filed or as amended in accordance with 
MCR 2.118. Under a separate and distinct heading, a party must state the facts 
constituting 
(a) an affirmative defense, such as contributory negligence; the existence 
of an agreement to arbitrate; assumption of risk; payment; release; 
satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; 
statute of limitations; immunity granted by law; want or failure of 
consideration; or that an instrument or transaction is void, voidable, or 
cannot be recovered on by reason of statute or nondelivery; 
( b ) a defense that by reason of other affirmative matter seeks to avoid the 
legal effect of or defeat the claim of the opposing party, in whole or in part; 
© a ground of defense that, if not raised in the pleading, would be likely to 
take the adverse party by surprise. 

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Your answers are fine ........ just a little wordy. You must state a reason why you deny an allegation but you don't have to give them the rule or case law that you rely on to support your denial. I like to keep things simple. Let them do the work.

 

Below your answers you should include a separate section entitled Affirmative Defenses.

MCR 2.111 (F) (3) spells out the requirements and defenses you may use.

 

Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting .....................

 

 

No tipping required!

 

Thank you so much!

 

So I should go with:

 

1. Defendant claims Lack of Standing. (i feel like from what I've read that, i need a explaination to tie it to the case)

 

instead of, 

 

1.      Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action. 

 

 

This board has been a immeasurable help to me. I can't begin to express my gratitude through words. I will keep everyone updated!

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I'll let others with more knowledge weigh in here. I will say it's dangerous to reserve the right to plead other affirmative defenses. Some defenses are waived if not pleaded in the initial answer. You can freely amend with permission, unless it would be futile to do so. Check the MCR.  Did you read this law review article on answering the complaint? 
 
Make certain you put your AFFIRMATIVE DEFENSES under a separate and distinct heading. Believe it or not, our JDB attorney tried to win a motion for summary disposition on the technicality of throwing out all affirmative defenses on the heading not being distinct enough. They didn't prevail on the motion.
 
MCR Rule 2.111 General Rules of Pleading 
(F) Defenses; Requirement That Defense Be Pleaded. 
 
(3) Affirmative Defenses. Affirmative defenses must be stated in a party's 
responsive pleading, either as originally filed or as amended in accordance with 
MCR 2.118. Under a separate and distinct heading, a party must state the facts 
constituting 
(a) an affirmative defense, such as contributory negligence; the existence 
of an agreement to arbitrate; assumption of risk; payment; release; 
satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; 
statute of limitations; immunity granted by law; want or failure of 
consideration; or that an instrument or transaction is void, voidable, or 
cannot be recovered on by reason of statute or nondelivery; 
( b ) a defense that by reason of other affirmative matter seeks to avoid the 
legal effect of or defeat the claim of the opposing party, in whole or in part; 
© a ground of defense that, if not raised in the pleading, would be likely to 
take the adverse party by surprise. 

 

 

 

I did read it, but there is so much information. I'm an accountant by trade so the numbers at work and reading case law at home, has scrambled my brain. I can't believe there are people are lawyers and accountants, lol..  Thanks for the article, I will read it now.

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Thank you so much!

 

So I should go with:

 

1. Defendant claims Lack of Standing. (i feel like from what I've read that, i need a explanation to tie it to the case)

 

instead of, 

 

1.      Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action. 

 

 

This board has been a immeasurable help to me. I can't begin to express my gratitude through words. I will keep everyone updated!

 

Affirmative defenses don't need an explanation like a denial does in your answer.

That being said, the burden to prove any affirmative defenses you choose to claim falls on you ....... if called to do so.

According to the article posted by Bro' ........ an affirmative defense claim should be pretty detailed, also.

Good article Bro' !!

 

If it were me .. I'd stick with your original wording; lacking anything better.

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That's why I tell people to use Lack of Standing and Failure to State a Claim. These two defenses are based upon the documents the Plaintiff will provide to you during discovery. It will require nothing on your end, other than typing up a motion or an opposition.

 

It is ok to give a long explanation to a denial citing a rule or law. As a non-attorney, you want to show from the start that you are pointing out the flaws in their case. This way, if you get a judge who is creditor friendly and won't listen to anything you have to say you have it for an appeal. 

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It is ok to give a long explanation to a denial citing a rule or law. As a non-attorney, you want to show from the start that you are pointing out the flaws in their case. This way, if you get a judge who is creditor friendly and won't listen to anything you have to say you have it for an appeal. 

 

Good point ........ never thought of it that way before.

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Some people on here will say, that much information will let them know my strategy. First, if a law or rule states that a document needs to be attached to the complaint or the claim has no merit. Every JDB attorney will not go back and amend their complaint.  Two, there is no strategy. Courts have rules and though we know that JDB attorneys do not play within those rules, we have to. We can go in any direction we want as long as we play as the rules state. Let the JDB attorney know what you are doing, their pleadings are the same across the board. The paralegals at their office is changing information to fit the case. The attorney is not even looking at your pleadings, until the day they show up in court for a conference, hearing or trial. 

 

Keep these things in mind. 

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Some people on here will say, that much information will let them know my strategy. First, if a law or rule states that a document needs to be attached to the complaint or the claim has no merit. Every JDB attorney will not go back and amend their complaint.  Two, there is no strategy. Courts have rules and though we know that JDB attorneys do not play within those rules, we have to. We can go in any direction we want as long as we play as the rules state. Let the JDB attorney know what you are doing, their pleadings are the same across the board. The paralegals at their office is changing information to fit the case. The attorney is not even looking at your pleadings, until the day they show up in court for a conference, hearing or trial. 

 

Keep these things in mind

 

You two have been a great help, I will be filing on Tuesday.. served on a sunday, and monday is mlk day.. From the responses I've gotten and from what I can see, they don't even have an affidavit.. I have a graduated denial affidavit (ive read both positives and negatives)  that I will be attaching to my answer, so i will be the only one with prima facie evidence.. Hopefully they see what trouble this will be and accept a PTD.. If not, bring it on.

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They will most likely not accept a PFD since they already filed suit. Why pay these cocks****** anything? So what if you get them to remove their tradeline, the OCs tradeline will stay on you CR. The only thing you need to pay attention to when you are at pre-trial is if the judge will allow you any room to speak or if he focuses all the attention to the attorney. 

 

If he does not allow you any room to speak, then take that as a possible sign that he is potentially creditor friendly.. Pre-trial is usually quick and painless. 

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They will most likely not accept a PFD since they already filed suit. Why pay these cocks****** anything? So what if you get them to remove their tradeline, the OCs tradeline will stay on you CR. The only thing you need to pay attention to when you are at pre-trial is if the judge will allow you any room to speak or if he focuses all the attention to the attorney. 

 

If he does not allow you any room to speak, then take that as a possible sign that he is potentially creditor friendly.. Pre-trial is usually quick and painless. 

 

thanks bmc, 

 

I was just searching the board for what to expect at pretrial (mine is next month), It looks like they will offer a settlement and the judge will set the dates for discovery. I would think they would file an MSJ during that peroid or just after we complete discovery (i think,). If I get the chance to speak, should is there anything you would think might be worthy of mentioning (if the context of your reply should arise during pretrial)??

 

I think the big thing here is (1) they don't have a affidavit from themselves, and (2) nowhere does it state that they purchased the specific alleged account when they purchased the bundle of accounts. (note to self, I need to put a timeline together of each piece assignment from OC)

 

Also, I wouldn't hand them a PFD until after I defeat their MSJ (if it comes to that). If they don't accept it I'll obviously keep fighting until the end (hopefully for a judge "with prejudice").. I have not been able to get over the to "credit repair" board yet, but I would think that just having the charge-off from the OC on my CR, would be better then the CR having the charge-off tradeline and CA tradeline saying I owe or w/e.

 

(note to self, I need to put a timeline together of each piece assignment from OC, compile discovery papers from threads, review MSJ defenses)

 

as always, thanks!!

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If you beat their MSJ, why settle when you just WON THE CASE?

 

As I said, pre-trial is quick and painless. Prior to your case being called the attorney will ask to talk with you about agreeing to a stipulated judgment for the entire amount. Take the time to talk to the attorney, just to feel out what he/she is about. The only thing is voicing your opinion on length of discovery in court. I would aim for 60 days, if the attorney asks for 90. If the attorney asks for 90 days, you already know they do not have the goods to prove their case.

 

60 days allows you enough time to press the attorney into a corner with discovery requests. If you send out admissions, they have 45 days to reply. Give enough time to send out additional requests.

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I also received my  pretrial date which was way to soon, so they moved it until next month. Last week, their lawyer requested that the pre-trial take place over the phone. Today I received a pre-trial statement from their lawyers. It goes like this: 

_____________________________________________________________

 

Now comes JBD, etc..

 

1. they are an assignee of the OC. I defaulted via terms of agreement. they state the $ of damages.

2. pleadings are satisfactory.

3. They stipulate that damages are ~$1,400 at time of complaint.

4. List all special damages not stipulated.

5. Admissions or waivers: Reasonableness and casual connection of bills are not stipulated. 

6. They will call witnesses: EXHIBIT A

7. they will submitted exhibits: see attached.

8. Discovery not completed. discovery requested. 60 days.

9. Plaintff may file a pretrial motion.

10. this is a non jury case, which will take two hours.

11. settlement is possible.

 

Exhiibit A.

 

1. application  (NOT SUBMITTED IN COMPLAINT)

2. CC agreement (NOT SUBMITTED IN COMPLAINT)

3. CC statements (ONLY ONE SUBMITTED IN COMPLAINT)

4. payments (NOT SUBMITTED IN COMPLAINT)

5. bill of sale.  

6. chain of title

7. prelegal notification 

8. notice of new ownership and review 

9. affidavit.  (NOT SUBMITTED IN COMPLAINT, atleast from what i've seen and been told here)

10. any exhibits listed on defendent's exhibit list. 

11. any exhibits necessary to rebut any evidence from defendent

12. they reserve right to amend this exhibit list as they become identified by discovery.

 

Witness list

 

1. custodian of records, midland funding.

2. defendent, ME.

3. anyone on my list. 

4. any evidence to rebut my evidence.

5. they reserve right to amend this witness list as they become identified by discovery.

_________________________________________________________________________

 

I really didn't know anything about this from reading this site. I thought after I filed my answer, that we went straight to pre-trail (roughly a month away). So this kind of took me by surprise. They have exhibits listed that were not included in the compliant. 
 
I assume I should send something back. From what I can tell, it will be similar.
 
Do I even need to reply?
Do I need to address these inaccuracies?
Should I put names of the people from the attachments (bill of sale, etc.) as witnesses?
 
I don't have the original questions they are answering, so I wil be looking through the civil procedure for any notes on this, as well as the local court forms.
 
Thanks!
 
 

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