madbadger2742

Being sued in MI by Stenger for Capital Alliance Financial (Stenger's personal money machine)

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1. Named Plaintiff: Capital Alliance Financial, LLC
2. Firm: Stenger & Stenger PC

3. Amount: $600-$1000
4. Original Creditor: Bally Total Fitness
5.-7.: Legally served in person at home
8. Correspondence prior to suit: Absolutely nothing.
9. I live in Macomb Co, Michigan
10.-11.: Approaching end of year 4 of 6-yr SOL
12. Status: Complaint served
13. Have you disputed the debt: Not sure ... see below
14. Did you request debt validation? No, Complaint was first contact
15. How long do you have to respond to the suit? Today is day 6 of 21 days to respond

 

16. No ROGs. Allegations are paraphrased as follows:

Jurisdictional:

1. Plaintiff is assignee of OC account through THREE intermediary assignees! 

2. Defendant lives where he does

3. The amount in controversy is less than $25k 

4 On XX/XX/08, Defendant opened an account with Bally. Agreement was delivered to Defendant, and Plaintiff believes it remains in Defendant's possession.

5. Defendant accepted terms

6. Defendant failed to make payments as agreed and account is in default.

7. Balance due of $XXX.XX as indicated in statement (Exhibit A) and affidavit, (Exh. B)

8. Despite Demands, Defendant has failed to pay

9. Defendant should be required to pay sum due.

Count I: Breach of Contract

10. Plaintiff restates and re-alleges paragraphs 1-9 (?)

11. Defendant is in breach of contract for failure to pay as agreed

Count II: Account Stated

12. Plaintiff re-alleges all above (again!)

13. Defendant either made payments on the account and/or failed to object to accuracy

14. The account has become stated between the parties

Wherefore Plaintiff requests judgement, etc, etc.

 

16. Evidence included: Exhibit A, an "account statement" disclaimed on its face as being prepared on behalf of the plaintiff based on business records furnished by OC, and not an original statement; and Exhibit B, an affidavit sworn by the manager of the plaintiff that Plaintiff is the assignee of Defendant's debt originally owed to Bally on acct no XXXXX, and plaintiff is proper owner of debt and party to bring action, along with all the legal mumbo-jumbo about kept books and familiarity with records 

 

My Issues: 

 • In 2010, I reached Accord & Satisfaction with a collection agency for about half the original amount. I have the letter of Accord, and a record of the payment reaching Satisfaction, but no official "account closed" or similar documentation from either OC or collector.  

 • In 2012, I was contacted by a JDB about the remainder of the original debt, threatening litigation.  I told him to go ahead, because I have proof that I paid off the debt. 

 • Last week, I got served with this.  Now there are four assignees listed on this complaint, and none of them are the collection agency I settled with, or the JDB that previously contacted me. (as far as I can tell.)  This tells me that there was some pretty seriously sloppy paperwork in the sales and assignments of this debt, and it got fractured or duplicated somewhere along the way, and all these lowlife JDBs are fighting over the scraps.

 

Their issues:

 • Affidavit claims that last payment on acct was Sep 2010, but last payment to Bally was in 2009, and A&C was in March 2010.  

 • Affidavit is dated 10 January 2014, Complaint is stamped 21 January

 

I do not want this dismissed w/o prejudice.  I want this thing buried.  I'm sick and tired of hearing from a new collector every year or two trying to milk another couple hundred bucks out of me.  

 

Preliminary strategy:

I was thinking of filing an answer (which I will post later) requesting summary judgement dismissal w/ prejudice, denial of plaintiff's request for relief, award defendant costs & fees, etc, and an order to enjoin further actions related to defendant's original account w/ OC.  Will attach affidavit countering and objecting and A&S documentation.  Then following that up with an order to strike the plaintiff affidavit for being stale and hearsay...  Am I going in the right direction?  

 

Questions:  

Do I need to look them up on my credit report and dispute it?

Are they allowed to sue without prior contact?

Can they claim Account Stated without prior contact?

...  I think I had more questions, but they seem to have slithered away...(head cold)

I'd like to get some ideas and finalize my first action by Thursday (3 days away,) as I'm heading to the court that day anyway.

 

TIA! 

mb

 

[Edited to clarify head cold-induced confusion.]

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Questions:  

Do I need to look them up on my credit report and dispute it?

Are they allowed to sue without prior contact?

Can they claim Account Stated without prior contact?

...  I think I had more questions, but they seem to have slithered away...(head cold)

I'd like to get some ideas and finalize my first action by Thursday (3 days away,) as I'm heading to the court that day anyway.

 

First things first.

1. No, not necessarily. It couldn't hurt but, It probably won't help in the instant situation. CAF will just verify. Bailey (if they are still reporting) no longer owns the debt so they will probably not verify.

 

2. Yes ....... there is no law that requires anyone to notify you of an impending suit.

 

3. Yes ...... they can try. When a JDB acquires an account they 'step into the shoes' of the OC.  The problem they have is the chain of custody. With so many 'owners' of this alleged account they must prove that the chain is unbroken by providing a bill of sale from each of the previous owners of the account from the OC right down to the current alleged owner. I bet they didn't even provide a single bill of sale.

 

 

Preliminary strategy:

I was thinking of filing an answer (which I will post later) requesting summary judgment w/ prejudice, denial of plaintiff's request for relief, award defendant costs & fees, etc, and an order to enjoin further actions related to defendant's original account w/ OC.  Will attach affidavit countering and objecting and A&S documentation.  Then following that up with an order to strike the plaintiff affidavit for being stale and hearsay...  Am I going in the right direction?  

 

 

Secondly:

An answer to a suit and a Motion for Summary Disposition (judgment) are two different animals and shouldn't be combined. You either file an answer to the suit denying all the claims and include affirmative defenses ( accord & satisfaction) or you Motion the court for Summary Disposition (as it is called in MI.).

 

Plaintiff's affidavit is only 1 day early and according to the rules, SHOULD be judged as untimely but, you'll have an argument on your hands.

I'd argue it to the hilt. That being said, all it does is destroy their prima facie case which they can augment if they have the documentation to do so.  This far removed from the OC ........... it's doubtful they have it.

They will, in all probability, try to submit alleged account statements under MRE 902 (11) if they actually have them. At least they did in their case against me.

 

 

As I see it ........ your issue is that you reached what you thought was an end to the debt by settling for less than the full amount but the OC sold the remainder owed to a JDB,

 

I'm not saying that you are in a bad position here; if you have the indicia of accord and satisfaction play it.

Consider the lack of standing defense also, due to no bills of sale detailing the chain of ownership..

 

In your answer (if that's the direction you choose), make sure that you address both the breach of contract and account stated causes of action.

 

Read bmc100's post on Defending Yourself In MI

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I know that in general, one is not required to give prior notice to a suit...  I was just wondering if a debt collector needed to attempt to collect the debt outside of the legal system.  :)

 

The laws, and case law regarding Assignment of Account Stated confuse the heck out of me.  So if assignor has valid claim to a stated account, assignment does not change the state of the Account.  I somehow got the impression that in the absence of a contract stipulating rights of transfer and assignment, Statement of Account between debtor and assignee would need to be reestablished.  That plays back to the previous question of whether they had to at least call me or send me a bill before suing me alleging Account Stated.  So, just to re-re-re-clarify...  ;)  If the complaint alleges that "Account has become Stated between the Parties," by "parties" they mean debtor and assignee, wherein assignee has assumed the role of the assignor?  (Honestly, I'm a pretty smart guy and I usually understand legalese, but for some reason Account Stated crossed with assignment throws me for a loop.  lol)

 

 

 

An answer to a suit and a Motion for Summary Disposition (judgment) are two different animals and shouldn't be combined. 

Sorry, I meant dismissal, not judgement.  Like so:

"WHEREFORE, Defendant respectfully requests that this Court dismiss Plaintiff's Complaint with prejudice, yaddayaddayadda..."

 
 

Would you recommending answering or moving to dismiss first?

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Here's a draft of my MTD:

 

DEFENDANT'S MOTION FOR SUMMARY DISPOSITION

Defendant moves for the Court to dismiss, with prejudice, Plaintiff's claims, pursuant to MCR 2.116©(7) by reason of release and payment, providing arguments and supporting documentation in the accompanying memorandum.   

 

MEMORANDUM IN SUPPORT OF DEFENDANT'S
MOTION FOR SUMMARY DISPOSITION

 

In this motion, Defendant petitions the Court for summary disposition, and dismissal, with prejudice, of Plaintiff's claims alleged against him, pursuant to Michigan Court Rule 2.116©(7), wherein relief is deemed “appropriate because of release [or] payment”.

 

In March of 2010, Defendant reached Accord and Satisfaction with Alliance One Receivables Management (“Alliance One”,) an agent collecting on behalf of the original creditor, Bally Total Fitness (“Bally”.) While the value of the debt at that time was in the amount of $1XXX.XX, Accord was agreed upon in the amount of $[~half], as indicated in communication from Alliance One (attached as Exhibit C,) and Defendant did Satisfy said Accord, as witnessed via transaction history (attached as Exhibit D.)

Defendant did reach said Accord and Satisfaction in good faith that Alliance One held valid title to the debt, and thus the authority to release him from any future claims against his account with Bally.

 

Wherefore, Defendant respectfully requests the Court to grant this motion for summary disposition; dismiss, with prejudice, all claims alleged against him in Plaintiff's complaint; release him from any claim, past or future, pursuant to the original account; and award such relief the Court deems just and reasonable, including costs and fees.

 

Thoughts, @Savoir , @bmc100 , anyone else?  :)

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Still got that head cold?
The acronym ‘MTD’ denotes Motion to Dismiss yet your motion is titled Motion for Summary Disposition. Not a real big deal but, mistakes in procedure can be fatal to your case.

Here are a couple of articles discussing Accord and Satisfaction.
http://legal-dictionary.thefreedictionary.com/Accord+and+Satisfaction
http://www.coveringcredit.com/business_credit_articles/Credit_Technique/art658.shtml

 

Some case law to review:
http://accordandsatisfaction.uslegal.com/state-laws-on-accord-and-satisfaction/michigan-accord-and-satisfaction/
http://statecasefiles.justia.com/documents/michigan/court-of-appeals-unpublished/20110818_C295451_53_295451.OPN.PDF?ts=1323898389
http://www.michbar.org/opinions/appeals/2010/010710/44747.pdf

 

If you file a Motion to Dismiss ……….. you should be given time to file a proper answer to the complaint if your motion is denied. In a Motion to Dismiss, I would include an affidavit attesting to your Accord and Satisfaction and include exhibits of the agreement, the satisfaction account history, and any indicia of the payments that were made.

 

Not too sure of the consequences of filing a Motion for Summary Disposition in lieu of an answer.
I would include a Points and Authorities section, an Arguments section and a Conclusion section in a Motion for Summary Judgment.

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Yeah, I still have the head cold, but I don't think that was a stuffy-headed mistake.  Since 2.116 is titled "summary dispositions," I thought the motion should be titled as such.  I'll change that.

 

As I understand it, yes, you get ...14(?) days after the motion is denied to file your response.  

 

I was just wondering if I should attach an affidavit to the motion.  Now I will.  

 

Thanks for the help.  I'll polish it up. 

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Just so you know ......... a Motion for Summary Disposition is not considered a responsive pleading ....... it's a dispositive motion (as the name implies). I don't believe that you should file a MTD using MCR 2.116 as an authority.

 

Edit: Further research on my part seems to imply that the filing of a MTD based on MCR 2.116 is perfectly legit.

 

I realize that you want to get this behind you but I'd hate to see you shoot yourself in the foot. Timing is everything.

 

I asked you to read bmc100's post about defending yourself against a JDB in MI ......... did you?

 

http://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/page-5#entry1229718 outlines the steps you should consider using.

 

http://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/page-5#entry1229943 continues the reasoning.

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You bet I read it.  I read through it twice before I started this thread.  :)  

 

His revised strategy is based on a complaint with no supporting documentation.  My JDB seems to have cut-and-pasted the complaint, statement of account, and affidavit straight from MCL and MCR.  They're trying really hard to present a watertight case.  I'm going to go MTD, Answer with multiple affirmative defenses, Motion to Strike Plaintiff's Affidavit and statement of account, demand Production of proof of chain of Title, etc.  

 

But in the end, I'm really hoping that the indices of A&S are my ace in the hole.  On that note, to prepare for denial of MTD, I'm currently researching how to depose out-of-state non-parties for documents, as the collector I settled with refuses to return my calls.  Fun!  (Hopefully, whichever office I need is in a state that honors UIDDA)  

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BTW, a funny aside (at least I found it funny.)

I had to go to the court to fight a traffic ticket, (how can you cite a moving violation on a parked car?) and so I stopped by the civil division to see if there were any surprises in the docket, and the lady helping me at the clerk's desk tells me, "You really should answer the complaint, you know."  

 

"Court staff cannot and will not give you legal advice."  lol

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Okay, so I filed my MTD two weeks ago, and in the mail yesterday, I got this letter:

 

"Enclosed for your review is a copy of the proposed Stipulation and Order to Dismiss.  If the Stipulation meets with your approval, please remit.  In order to dismiss any upcoming hearings, we need to have this returned to our office ASAP.  If you have access to a fax machine, please fax it to ... or if you have access to email, please email the document to ... Please also forward the original signed document by mail."

 

Stipulation:

"Plaintiff and Defendant do hereby stipulate and agree that the above-captioned matter may be dismissed without prejudice and without costs as to all parties and all matters. 

This resolves the last pending claim and closes the case."

 

It seems to me that they understand how airtight my case is, and they want to avoid any more costs associated with being jackasses and suing me without researching their claims.  

 

Question:  Should I accept, or let the Court schedule the hearing?  I'm tempted to let it go to hearing, because a) I want it dismissed WITH prejudice, B) I requested a finding of fact from the Court stating that any claims to my account with OC are settled, and I'd like to have that, and c) I really wouldn't feel bad if they spent more good money after bad on this.

 

Whatcha think, all?

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BTW: In case anyone's interested, here's the MTD I filed:

 

[Caption]

 

DEFENDANT'S MOTION FOR SUMMARY DISPOSITION

            Defendant moves the Court to dismiss, with prejudice, all of Plaintiff’s claims under Michigan Court Rule 2.116©(7) by reason of payment and release. Defendant provides supporting documentation and arguments in the accompanying memorandum. 

 

 

 

XX/XX/XXXX
Respectfully Submitted,

 

___________________________

[Me],

Defendant

 

[Caption]

 

MEMORANDUM IN SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY DISPOSITION

In this motion, Defendant asks the Court to dismiss, with prejudice, all of Plaintiff's claims pursuant to Michigan Court Rule 2.116©(7), wherein relief is deemed “appropriate because of release [or] payment”.

 

UNDISPUTED FACTS AND NEW EVIDENCE

For the purposes of this motion only, Defendant stipulates to the following facts as alleged in Plaintiff’s Complaint:  That Defendant did (a) enter into an Agreement (“Account”) with [OC] under the account number specified, on the date alleged; and (B) default on said contract by failing to make payments as agreed. 

In addition to the aforementioned facts, Defendant submits attached documents as Exhibits: Indications of Accord, “Exhibit C;” and Satisfaction, “Exhibit D.”

 

BACKGROUND

            As accounted in the Complaint, and stipulated to in this motion, in [Year 0] Defendant entered into Agreement with [OC], and in [Year 1] breached the Contract thereof.

As evinced by Exhibits, in March of [Year 3], Defendant was contacted by [Collection Agent] believed by Defendant in good faith to be either an Agent collecting on behalf of [OC], or the lawful Assignee to the Account. Accord was reached in the amount of $XXX.00 and subsequently Satisfied in full.

In or around [Year 5], Defendant was contacted by another agent attempting to collect on Defendant’s [OC] Account. Defendant cannot at this time recall the name of said agent, but believes that it was not Plaintiff, [OC], [Collection Agent] nor any prior Assignees listed on the Complaint.

Now comes Plaintiff, bringing the instant action claiming right to relief in an amount similar to that of the Accord. 

 

ARGUMENTS

            MCR 2.116©(7) allows for summary dismissal of claims when “appropriate because of release [or] payment;” and MCL 440.3311 states that a “claim is discharged” if  “written communication contain a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.” Exhibit C satisfies this requirement. 

             Furthermore, Defendant made the payment agreed upon with [Collection Agent], as evinced by Exhibit D.  Therefore, Plaintiff’s claim has been paid and Defendant was entitled to a release.


CONCLUSION

            Wherefore, Defendant respectfully requests that the Court grant this motion for summary disposition; dismiss all claims alleged against Defendant in Plaintiff's complaint; enter a finding of fact that [OC], through its agent [Agent], released Defendant from any prior or future claim pursuant to the original Account; and award such relief the Court deems just and reasonable, including costs and fees.

 

XX/XX/XXXX

Respectfully Submitted,

 

___________________________

[Me],

Defendant

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Frankly, if I had such an airtight case as you seem to think you have, I'd be very tempted to let it go to hearing.

If the scenario is as you state and your proofs are what you claim, you're virtually guaranteed a judgment in your favor.

If you stipulate, they're just going to sell it to some other JDB to recoup some of their money and you'll be facing this again.

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Frankly, if I had such an airtight case as you seem to think you have, I'd be very tempted to let it go to hearing.

If the scenario is as you state and your proofs are what you claim, you're virtually guaranteed a judgment in your favor.

I have the offer of accord from the collection agent, and a transaction record naming the agent for the amount stated within the offer window. I think that's pretty airtight... :-)

If you stipulate, they're just going to sell it to some other JDB to recoup some of their money and you'll be facing this again.

And that's my biggest fear, really.  If it's dismissed without prejudice, there's nothing stopping them from doing just that.  Add to that the possibility that the debt was fractured, and that makes me really want that Finding in my pocket.  Plus, I want my motion fee back!  ;)

 

TBH, the only thing that is making me consider taking the offer is the possibility of pissing off the judge because I declined the offer and forced the issue.  OTOH, I'd think he'd be more pissed at the JDB, since I emailed those same exhibits to counsel the day after I was served, and they never responded. 

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TBH, the only thing that is making me consider taking the offer is the possibility of pissing off the judge because I declined the offer and forced the issue.  OTOH, I'd think he'd be more pissed at the JDB, since I emailed those same exhibits to counsel the day after I was served, and they never responded. 

 

The judge is a trier of fact ......... and you seem to have all the facts backing you up. I agree; if I had all the evidence that you seem to have in front of me; I'd really be pissed at a JDB that wasted my court's time.

 

I'd go for it.

Do you think the JDB would consider backing off because they forced the issue?

Impress upon him that this has happened previously and you're tired of it ........ this debt has been paid.

 

I'm under the impression that only in very rare exceptions do Michiganders get filing fess reimbursed. Can you point me in a direction to correct that impression?

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I have no real knowledge regarding reimbursement.  I'm just shooting for the moon.  :D

 

It looks like I would have to prove that the action was "Frivolous" to be awarded costs and fees, which I suppose I might be able to argue that:

"The party had no reasonable basis to believe that the facts underlying that party's legal position were in fact true. [or]

The party's legal position was devoid of arguable legal merit." (MCL 600.2591(3)(a)(i-ii))

since, shortly after initiating the action, Plaintiff became aware that its argument was without merit and had no reason to believe that its claims were true; and thus should have dismissed the case before I filed my motion.  

 

Kind of a stretch, really.  But, hey, can't hurt to ask, can it?  :)

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