Jump to content

Help: Sued in Michigan by JDB Midland Funding via Stillman Law Office (Served Yesterday)


Recommended Posts

Hello! Thanks for anyone who cares to read this. I do appreciate it very much.

 

Yesterday on 8/5, in Michigan, I was served in person a summons and complaint (second). I now have 20 days to answer.

 

This is for a credit card debt that is between $1200 and $1500.

 

Right after being served, I immediately called the Stillman Law Office. I was scared, and I spoke to a representative who told me that they would be willing to sign me up for a payment plan if I was to accept a consent judgement. I said yes, and they told me they were sending the documents out to me. They also collected my check information to take the orally agreed upon monthly payments. 

** I have now decided that this is a bad plan. I do not want to sign the consent for judgement and instead wish to fight it. I plan on cancelling this payment as of tomorrow morning.

 

Apparently, this is the second time they have attempted a summons. For whatever reason they seem to have been unable to find me, which is ridiculous since I have lived at the same address for 5 years. I have had no contact with them prior.

 

** I am interested in asking where I should go from here. I have lurked here for a while and understand that I should perhaps try to file an MTD (as bmc1000 recommended in his fantastic post). However, I wasn't able to formulate exactly where I should go from here. I am quite young and have a strong desire to fight this as I have been working hard on my debt and do not need another judgement on my hands. Thank you so much, and I hope someone can find time to help me.

 

The complaint appears as so:

 

Plaintiff:

Midland Funding LLC Assignee of Chase Bank USA through plaintiff attorney Michael Stillman (Stillman Law Office)

 

Attached is a Complaint and an Affidavit.

 

Complaint:

Dated January 16, 2014

 

Now Comes plaintiff, Midland funding LLC Assignee of Chase Bank USA, N.A. by and through its attorneys, STILLMAN LAW OFFICE, and for its Complaint against the Defendant, states as follows:

 

1. That the Defendant herein is indebted upon open account or pursuant to contract, and defendant accepted same. (Original Account Number: (They give the full credit card number)).

 

2. Performance has been completed and defendant agreed to pay the account.

 

3. There is presently due and owing, over and above all legal counter claims, the sum of (exact amount, for personal protection I say $1200-$1500)

 

4. Plaintiff requests judgement for $amount, plus court costs and any sundry costs and/or attorney's fees allowable by statute or court rule. 

 

I declare the statements above are true to the best of my information, knowledge, and belief. Respectfully submitted by attorney at Stillman Law Office)

 

Affidavit:

AFFIDAVIT DATE: December 09, 2013 

 

Midland Funding LLC,

Plaintiff

 

-vs-

 

My name

Defendant(s).

 

(attorney at Stillman), whose business address is 16 Mcleland Road Suite 101, St. Cloud, MN 56303 certifies and says:

1. I am employed as a Legal Specialist and have access to pertinent account records for Midland Credit Management, INC (Mcm), a servicer of this account on behalf of plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained on plaintiff's behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendants CHASE BANK USA, N.A, account (Exact card number) (MCM account number)(hereinafter "the account"). I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on the plaintiffs behalf.

2. MCM's records show that the defendant(s) owed a balance of (exact amount) as of 2013-11-25

 

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

Date: Dec 09, 2013 (Attorney name)

State of Minnesota  County of Stearns

Notarized in Minnesota with Signature.

 

Please help me fight these guys. I am a full time student who does not have much income, otherwise I would love to just pay this off without a judgement.

Link to comment
Share on other sites

@Mazzie

I'm sorry, but I don't know the answer to your predicament. You didn't sign anything, but did authorize payment, correct? I think stopping the payment is important, but that's just my layman's opinion. I am not a lawyer. What county are you in? You might call legal aid to discuss your situation. The complaint and affidavit are typical of those we see in Michigan. There is plenty of info on this forum for both Midland and Stillman to mount your defense.

Link to comment
Share on other sites

I have stopped the payment. At this time I have signed nothing. I have only spoken to Stillman Law Office. They seemed a little confused as to where this debt has come from. Frankly, so am I. I have read through many other cases on this website and I can't decide where to proceed. I'd like to start with a Motion to Dismiss but I am unsure as to what to include in that letter. I believe the affidavit they have attached to the complaint seems to be stale, but should I use this as a basis for dismissal? The complaint is dated January 16 2014 but the affidavit from the "legal specialist" was notarized December 9th 2013.

 

Just looking for guidance as to what to include in my motion for dismissal.

 

Edit: I am in Kent county. The Stillman Law Office is in Farmington Hills (Oakland County). Their affidavit was from Minnesota, though. Venue is 61st district court in Grand Rapids.

Link to comment
Share on other sites

You are fine. You didn't sign anything, and if they try to say you orally agreed to pay, you could say you had no idea what this was for, and have since decided to dispute it. Talking settlement cannot be used against you in court, so since you didn't sign the stipulation, your priorities are to answer the summons and fight as usual.

Link to comment
Share on other sites

@Mazzie

You need to understand much more fully before taking action. The affidavit must be dated within 10 days of the summons and complaint when the cause of action is account stated. There must also be an account statement attached to the affidavit. A stale affidavit does not void the suit, it just can't be considered prima facie (correct unless proven otherwise) evidence of the account. I'm not clear whether this is an account stated or breach of contract cause of action. They refer to a contract "open account or pursuant to contract," but do not indicate that "upon information and belief is in the possession of the defendant" do they? 

Link to comment
Share on other sites

The exact complaint is word for word above, as is the affidavit attached. As you have stated, the affidavit means almost nothing but thank you for advising that it would not void the suit. They do not state "upon information and belief is in the possession of the defendant" anywhere. They only say "open account or pursuant to a contract".

Link to comment
Share on other sites

The exact complaint is word for word above, as is the affidavit attached. As you have stated, the affidavit means almost nothing but thank you for advising that it would not void the suit. They do not state "upon information and belief is in the possession of the defendant" anywhere. They only say "open account or pursuant to a contract".

I didn't say the affidavit "means almost nothing," because if you don't answer, they can get a default judgment with it. 

Link to comment
Share on other sites

My apologies, I did not mean that. I meant to say that they did not include a bill of sale, or a statement, or anything truly proving their ownership of this debt. Thanks for noticing!

No apology necessary. Some friendly advice: if you want to have an easier time slogging through defending against a JDB in court without making major errors, you need to grasp that words have precise legal meanings. Also, specific facts matter. While most JDB cases are similar, the specific facts of your case may be different. You have some time before the deadline to understand what the consequences of your different options may be. 

 

I hope other posters will weigh in here. (IANAL) It doesn't appear to me that Stillman has properly alleged an account stated claim (no account statement attached) nor do they properly allege a breach of contract claim (no attached contract or in defendant's possession language). You need advice from an informed person on what to do with this. The last thing you want is to have them refile with things properly done with timely documents attached. For the amount of your suit, no telling how much effort (and money) they'll expend. Maybe nothing more.

Link to comment
Share on other sites

It is possible that they have sent me something in the past, however I live in a house with 4 other people and one mailbox. I am renting a room in a big house as a college student. I do not recall ever seeing anything from Midland but do not deny that it is minutely possible.

 

Edit: I have went through all of the debt settlement offers, etc,  from my past and found nothing with Midland on it, as I usually keep all of my mail, especially regarding a debt.

Link to comment
Share on other sites

I am very raw here so take this information for what it's worth. (probably not much)

 

When dealing with Stillman this is what I did:

 

1st, check the SOL, find out when the last payment was made or purchase was charged to the alleged account.  (SOL in MI is 6  years) If they sent no monthly billing statements showing a purchase or payment, then I don't think they met the burden of proving the SOL hasn't expired.

 

2nd, be sure to answer each complaint individually. In my responses I actually type out each one of their complaints and type in Deny or Accept with an explanation. (ie. 1. That the Defendant herein is indebted upon open account or pursuant to contract, and defendant accepted same. Deny, Defendant has never had an account with plaintiff.  2. Performance has been completed and defendant agreed to pay the account. Deny, To the best of my remembrances, Defendant has never witnessed any Performance and Defendant never agreed to pay the alleged account.  etc.)

 

3rd, Be sure to make a counter affidavit, get it notarized, (most county clerks offices have a notary available), I failed in my first case to file an affidavit and depending on the Judge it may come back to bite you in the butt.

 

4th, Be sure to read everything Stillman send you, they will try to "paper bomb"  you, multiple monthly statements (same months), several affidavits (different signers, different dates (all outside the Prima Facie limits)) and any reply you make to them send it CRRR (Certified Return Receipt Requested). Get yourself a calendar and note the pertinent dates on it, ie. received S&C on 5th, must have answer submitted by the close of business on the 26th, etc.

 

But most of all and I can't stress this enough, READ THIS BOARD, the information here is incredible, the people here are amazing and the guidance you get here is unbelievable.  If you follow their lead, do what their suggestions say and don't get over zealous, you can win this suit against Stillman and Midland Funding.

 

(Be advised, these are only things I have done, you need to do what is pertinent to your situation)

Link to comment
Share on other sites

It is possible that they have sent me something in the past, however I live in a house with 4 other people and one mailbox. I am renting a room in a big house as a college student. I do not recall ever seeing anything from Midland but do not deny that it is minutely possible.

 

Edit: I have went through all of the debt settlement offers, etc,  from my past and found nothing with Midland on it, as I usually keep all of my mail, especially regarding a debt.

Has Midland or Stillman tried to call you previous to filing the suit? Did you receive calls from any toll free, blocked or private numbers that you can recall?

Link to comment
Share on other sites

Long day at work, first I'd like to thank Lostboy and Bmc for their replies while I was away.

 

Lostboy: It is not out of SOL as I understand the law to be. This was for a credit card I had defaulted on in 2010 due to a catastrophic life event. At least I think it was for that card. On the day I was served I called Stillman and they told me it was a Chase card, and I only had one Chase card that I had already paid off. I defaulted on everything in 2010 and it is possible that my Wamu card became Chase at some point as I believe Wamu was acquired by Chase.

 

Bmc: They had been trying to call a number that was my first cell phone number ages ago, and that was the only number they had on file. Any credit cards I had at that time were current. When I asked the phone agent from Stillman what number they had been trying to call, they quoted the old number, and I informed them I had not used that phone number for nearly 5 years. I have not knowingly spoken to anyone from Midland before the day of the suit, such that I had no idea there was a suit against me until I was served.

Link to comment
Share on other sites

So here is what you are going to do. You will file an answer with an affidavit that needs to be signed and notarized denying you opened this account with Chase, that you made payments, received statements…etc.

 

You will deny each allegation by stating.

 

Header - Centered

 

STATE OF MICHIGAN

IN THE ___th DISTRICT JUDICIAL COURT

 

Midland Funding LLC

 

PLAINTIFF

 

v.

 

Mazzie

 

Defendant, Pro Per

 

______________________________________________________________'

 

ATTORNEY INFO 

Link to comment
Share on other sites

Thank you BMC. I am at work right now and I am writing up a draft of the affidavit taking all of your advice. Would it be alright if I posted my draft here for you to look over before I take it to the court building to get it notarized and sent in?

Link to comment
Share on other sites

SUE them BACK in Federal Court!  That will stop them or least that is the experience I have had!  I am not an attorney and I am sick of the high prices they charge.  I learned to do it myself and I am so glad I did.  I have even written a directions for others to follow my lead.  County Court seems to be for the "lawyers" and if you are pro se they don't listen to you BUT FEDERAL Courts will listen.  That law firm KNOWS they are violating your rights and will continue to do so if you don't take strong action immediately.  You can email me if you want keystonegatorfan at g mail dot com. Please just know that I am a single mom who had to learn to survive from these vultures!

 

PS:  you must file an answer with the county which is normally a FREE charge for you BUT immediately file a lawsuit in Federal Court  and I can help you with this.  I have proof you can find the lawsuits on the federal web site!

Sherry

Link to comment
Share on other sites

I have prepared the draft of my answer. I am now putting the finishing touches on the affidavit that will accompany the answer (as suggested and outlined by BMC) in the next hour or so. Would this be an acceptable answer to submit?

 

==============================================================================

 

Court Address Court telephone no.
61st District Court (Court Address/info/phonenumber/ plus my info/ attorney/plantiff info)

 

Answer

NOW COMES the Defendant, MY NAME, in answer to the complaint states:

 

1. Defendant lacks knowledge or information sufficient to form a belief to the truth of this allegation. Plaintiff has provided no proof of agreement, and therefore the Defendant denies the allegation.

 

2. Defendant Denies this allegation in its entirety. Plaintiff has provided no proof of an alleged agreement between Defendant and Plaintiff. Plaintiff is making an unsupported statement that a contract or agreement        exists without providing an account agreement or details regarding the alleged account. MCR 2.113 (F) (1)

 

3. Defendant Denies this allegation in its entirety. Plaintiff has provided no proof of an alleged agreement between Defendant and Plaintiff. Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account. MCR 2.113 (F) (1).

 

4. Defendant Denies this allegation in its entirety. Plaintiff has provided no proof of an alleged agreement between Defendant and Plaintiff. The Plaintiff has not provided an account agreement or details regarding the alleged account. The plaintiff is making an unsupported statement that the contract or agreement exists. MCR 2.113 (F) (1).

 

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

 

Respectfully Submitted,

My name

(Signature)

Link to comment
Share on other sites

@Mazzie

 

Allegation:  "1. That the Defendant herein is indebted upon open account or pursuant to contract, and defendant accepted same. (Original Account Number: (They give the full credit card number))."

 

Your answer: "1 Defendant lacks knowledge or information sufficient to form a belief to the truth of this allegation. Plaintiff has provided no proof of agreement." 

 

There are many allegations in #1. You haven't really denied them. When you use the phrase, "defendant lacks knowledge or information..." many posters here also include, "and therefore denies," then list the specific allegations. 

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.