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Affidavit question Michigan


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Hello, I am being sued by a law firm on behalf of Midland Funding in Michigan.  In my answer, I stated that I do not recall having the alleged credit card.  However, I did not attach a sworn affidavit to my answer.  Could someone please tell me how I would go about ammending my answer so that I can attach the  affidavit to it. It has been over 14 days since I filed the answer.

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Hello, I am being sued by a law firm on behalf of Midland Funding in Michigan.  In my answer, I stated that I do not recall having the alleged credit card.  However, I did not attach a sworn affidavit to my answer.  Could someone please tell me how I would go about ammending my answer so that I can attach the  affidavit to it. It has been over 14 days since I filed the answer.

 

@determined2fight

Are you being sued under an account stated cause of action? Did Midland file an affidavit and statement of account annexed to the affidavit? If yes, is the date on the affidavit within 10 days of the date on the complaint? Account stated is governed by Michigan Compiled Law 600.2145.  http://legislature.mi.gov/doc.aspx?mcl-600-2145

This poster needed to amend his answer and file a counter affidavit. It is done by getting the approval of the opposing side or by motion to the court. In his case, the JDB attorney gave consent, so he didn't have to do the motion. 

http://www.creditinfocenter.com/community/topic/324228-responding-to-discovery-request-pending-msj-lvnv-michigan/?p=1301075

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i remember reading bmc's thread and it stated to file a sworn affidavit with your answer.  

 

I am not a lawyer, but I believe @bmc100 was referring to the counter-affidavit denying the claim a defendant needs to file with her/his answer, when a cause of action is account stated (MCL 600.2145) --and the plaintiff has filed an affidavit. We don't know what cause(s) of action your complaint alleges, unless you've got another thread going on this lawsuit. 

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  • 3 months later...
Michigan Courts Increase Requirements of Proof in Credit Card Cases

March 04, 2010      |      Jeffrey K. Bearss, Esq.

 

On February 18, 2010, the Michigan Court of Appeals released a decision that will have immediate impact upon our clients, particularly our credit card and debt buyer clients. The case involved increases in certain cases the level of proof necessary to obtain judgment in court. The case is Unifund CCR Partners v. Nishawn Riley, Michigan Court of Appeals Case No. 287599, Decided February 18, 2010. The court did not accept credit card monthly statements, showing payments made on the account, as proof of payments made on the account. The court now requires that in all credit card cases where a signed application is not available, that proof of payment, such as a copy of a payment check made to the credit card, is needed to prove that the debtor agreed to the account by making payments on same. The court is saying that copies of monthly statements showing payments is not sufficient. A copy of a payment check would be required, “as evidence that defendant made the asserted payments.”

For our debt buyer clients, there is now an increased level of proof of the assignment. The general contract, or batch assignment agreement, is no longer sufficient. A specific assignment, or affidavit supporting a specific assignment, should be supplied, that refers to the specific account number. Also, the court is requiring proof that the debtor was notified about the assignment. An affidavit from the original creditor regarding the specific assignment should be sufficient.

 

http://www.weltman.com/publications/client-advisories/?i=137&NH

 

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In fairly recent cases, an affidavit kills most of their case from the start. Even if the Plaintiff did not file one, they should file one at some point during discovery. Then it becomes a catch 22. You should have filed the affidavit with your answer denying their causes of action.

 

Without the Plaintiff amending their complaint, it puts you in a position to get the case dismissed.

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 I won my MOSJ  for two reasons.  I had filed an opposing sworn denial of debt  (or sworn NOTARIZED) affadavit denying the debt.

 

The second being the Plaintiff's affadavit(sworn and notarized) was not from the Plaintiff suing. In other words the affadavit was from MCM  not Midland Funding.

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