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Annie226

Help Needed! Answer has to be in court by Tuesday...scared!

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I am being sued and have spent the last two  weeks doing research.  I have attached my answer but need advice! Is it too much  Some basics:

 

SOL is not violated

No known FDCPA Violations

No affidavit attached to summons

Exhibits: plain white paper copy of purchased date with acct and contract date and last pay date HSBC account balance name and  last 4 of my social  but  looks like I typed it (unofficial)

               Assignment and bill of sale with signature of Capital One (notice its wrong bank) but no account  numbers either way

. Who is the named plaintiff in the suit? Cavalry

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

3. How much are you being sued for? 3XXX

4. Who is the original creditor? HSBC... however they sent capital one assignment bill of sale and schedule one with no account info

5. How do you know you are being sued? served legitimately

6. How were you served? in person

7. Was the service legal as required by your state?

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? none

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

10. When is the last time you paid on this account? statement with black out address is dated Nov 2011,

11. What is the SOL on the debt? To find out: No SOL violation

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. 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? Due Monday

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? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

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1. Who is the named plaintiff in the suit? Cavalry

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

3. How much are you being sued for? 3XXX

4. Who is the original creditor? HSBC... however they sent capital one assignment bill of sale and schedule one with no account info

5. How do you know you are being sued? served legitimately

6. How were you served? in person

7. Was the service legal as required by your state?

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? none

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

10. When is the last time you paid on this account? statement with black out address is dated Nov 2011,

11. What is the SOL on the debt? To find out: No SOL violation

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. 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? Due Monday

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? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

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I have spent the last two weeks reading on this site, reading a book, doing on-line research, the answer I have attached is what I have come up with. I will submit it along with an affidavit stating I do not owe in defense of the account stated.

I am looking for advice on the attached answer. Please respond with advice if any.

Thank you.

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I have spent the last two weeks reading on this site, reading a book, doing on-line research, the answer I have attached is what I have come up with. I will submit it along with an affidavit stating I do not owe in defense of the account stated.

I am looking for advice on the attached answer. Please respond with advice if any.

Thank you.

@Annie226

 

It would help us to help you with your Answer if we could see the Complaint. Can you type it out or post it with careful redactions of personal and/or specific identifying information? 

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1. Defendant entered into a contract with Plaintiff or plaintiff's assignor, the account/loan number of which is **********XXXX, and pursuant to MCR 2.113 f1b plaintiff's claim is based on written instrument which is not attached as it is in the possession of the adverse party.

2. Defendant defaulted under the terms and conditions of the contract.

3. Plaintiff and/or its assignor completed performance under the terms and conditions of the contract

4. As a result of defendant's default plaintiff claims breach of contract, open account, account stated, and/or unjust enrichment.

5. The original claim amount due and owing by defendant to plaintiff is XXXX.XX plus interest, costs, and attorneys fees

@Brotherskeeper I have seen another post with the same complaint.

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1. Defendant entered into a contract with Plaintiff or plaintiff's assignor, the account/loan number of which is **********XXXX, and pursuant to MCR 2.113 f1b plaintiff's claim is based on written instrument which is not attached as it is in the possession of the adverse party.

2. Defendant defaulted under the terms and conditions of the contract.

3. Plaintiff and/or its assignor completed performance under the terms and conditions of the contract

4. As a result of defendant's default plaintiff claims breach of contract, open account, account stated, and/or unjust enrichment.

5. The original claim amount due and owing by defendant to plaintiff is XXXX.XX plus interest, costs, and attorneys fees

@Brotherskeeper I have seen another post with the same complaint.

 

@Annie226

 

I read your Answer and Affirmative Defenses. (I am not a lawyer, so this is merely my opinion.) I'm not certain you understand the purpose of an answer to a complaint. It appears to me that you are attempting to argue the case rather than answer each allegation. Why do you cite a California case?  Can you please answer:

 

1.) What is your strategy here?

2.) Are you aware that any affirmative defense you assert is your burden to prove?

3.) Are you prepared to argue and support with admissible evidence each of the 15 affirmative defenses you assert? 

4.) Can you explain a bit more about the HSBC/Capital One bill of sale?  "4. Who is the original creditor? HSBC... however they sent capital one assignment bill of sale and schedule one with no account info"

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@Annie226

 

I read your Answer and Affirmative Defenses. (I am not a lawyer, so this is merely my opinion.) I'm not certain you understand the purpose of an answer to a complaint. It appears to me that you are attempting to argue the case rather than answer each allegation. Why do you cite a California case?  Can you please answer:

 

1.) What is your strategy here?

2.) Are you aware that any affirmative defense you assert is your burden to prove?

3.) Are you prepared to argue and support with admissible evidence each of the 15 affirmative defenses you assert? 

4.) Can you explain a bit more about the HSBC/Capital One bill of sale?  "4. Who is the original creditor? HSBC... however they sent capital one assignment bill of sale and schedule one with no account info"

@Brotherskeeper

I am not a lawyer either and am learning through books and this site as well as others. From what I read, I should support my defenses with case law and supporting information. Is this not correct? I am aware that I have to defend all of my defenses as well as if I do not state a defense now then I will not be able to later. I thought it was best to have more than less. I need help finding Michigan Case Law. I have already removed the unjust enrichment defense last night after reading more.

My goal would be to send my answer, but then ultimately use the MSJ before we go to discovery. Can you suggest a strategy that has been proven to work?

In my packet delivered with the summons, the attorney sent as exhibits an assignment bll of sale and Schedule 1 from Capital One bank. However, they have listed the assignee of HSBC and have 1 statement from HSBC after the account was in default. They account they are using suing on is HSBC. They attached the incorrect assignment.

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@Brotherskeeper

I am not a lawyer either and am learning through books and this site as well as others. From what I read, I should support my defenses with case law and supporting information. Is this not correct? Yes, this is correct--but at the proper time. An answer to a complaint is a responsive pleading.See MCR 2.111( C ).   I am aware that I have to defend all of my defenses as well as if I do not state a defense now then I will not be able to later.  I thought it was best to have more than less. I personally would only assert the affirmatives defenses of lack of standing, not a proper party of interest, failure to state a claim and/or statute of limitations (if applicable to the facts of my individual case).  I need help finding Michigan Case Law. Try Google Scholar or a law library. For your Affirmative Defenses you must state the facts that support them. See MCR 2.111 F)(3).  I have already removed the unjust enrichment defense last night after reading more. 

My goal would be to send my answer, but then ultimately use the MSJ before we go to discovery. Can you suggest a strategy that has been proven to work? Sorry, no proven strategy that I know of. 

In my packet delivered with the summons, the attorney sent as exhibits an assignment bll of sale and Schedule 1 from Capital One bank. However, they have listed the assignee of HSBC and have 1 statement from HSBC after the account was in default. They account they are using suing on is HSBC. They attached the incorrect assignment.  Cap One bought HSBC's US credit card accounts in 2012. 

 
Rule 2.111 General Rules of Pleading
( C ) 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.
 
(F) Defenses; Requirement That Defense Be Pleaded.
(2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of 
action has been asserted by complaint, cross-claim, counterclaim, or third-party 
claim must assert in a responsive pleading the defenses the party has against 
the claim. A defense not asserted in the responsive pleading or by motion as 
provided by these rules is waived, except for the defenses of lack of jurisdiction 
over the subject matter of the action, and failure to state a claim on which relief 
can be granted. However, . . .
 
(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;
( c ) a ground of defense that, if not raised in the pleading, would be likely to 
take the adverse party by surprise.
 
Here's a Michigan attorney's guidelines on drafting an answer:

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@Brotherskeeper If Capital One bought HSBC's accounts, then wouldn't Cavalary be an "assignee" of Capital One not HSBC?

And the "assignment and bill of sale" from capital on is dated June 15, 2012 Yet on their own exhibit it states they purchased from HSBC on 6/20/2012. I just read that HSBC sold the majority of the CC debt but not all.

I will clean up my defenses, thank you. I feel pretty confident they can't prove standing.

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@Brotherskeeper If Capital One bought HSBC's accounts, then wouldn't Cavalary be an "assignee" of Capital One not HSBC?

 

IANAL, but I believe HBSC would be the original creditor, if that is the entity that issued the original account that was purchased by Cap One. Here are the rules and statutes that govern this issue:

 

MCR 2.112 Pleading Special Matters

(N) A party whose cause of action is to collect a consumer debt as defined in the 
Michigan collection practices act (MCL 445.251[a] and [d]) must also include the 
following information in its complaint: 
(1) the name of the creditor (as defined in MCL 445.251[e] and [f]), and
(2) the corresponding account number or identification number, or if none is 
available, information sufficient to identify the alleged debt, and 
(3) the balance due to date. 
 
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IANAL, but I believe HBSC would be the original creditor, if that is the entity that issued the original account that was purchased by Cap One. Here are the rules and statutes that govern this issue:

 

MCR 2.112 Pleading Special Matters

(N) A party whose cause of action is to collect a consumer debt as defined in the 

Michigan collection practices act (MCL 445.251[a] and [d]) must also include the 

following information in its complaint: 

(1) the name of the creditor (as defined in MCL 445.251[e] and [f]), and

(2) the corresponding account number or identification number, or if none is 

available, information sufficient to identify the alleged debt, and 

(3) the balance due to date. 

 

http://www.legislature.mi.gov/(S(ats5i255wcjula554ml5r545))/mileg.aspx?page=GetObject&objectname=mcl-445-251

This helps more than you know! :-) Thank you.

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@Brotherskeeper Part of the complaint is account stated which I denied. I did not receive an affidavit with my complaint. Would an affidavit be needed by me? If not needed, suggested?

 

@Annie226

MCL 600.2145 governs an account stated cause of action. Read below carefully. (IANAL)  It is a burden-shifting statute. Affidavits are an important component of this statute to establish and/or rebut prima facie evidence.  See Prima facie evidence: http://www.law.cornell.edu/wex/prima_facie  

(Caveat: IANAL) I personally would submit an affidavit of denial. I don't see a downside. Other CIC members may have a different opinion. Affidavits are not required, but it certainly makes a case harder to prove without an affidavit.  When you prepare an affidavit, it is critically important that it be legally sufficient, according to Michigan court rules. This thread at post #38 has information about affidavits. Remember to put the case caption heading at the top of the affidavit.   http://www.creditinfocenter.com/community/topic/324228-responding-to-discovery-request-pending-msj-lvnv-michigan/?p=1301199

 
MCL 600.2145 Open account or account stated; proof, counterclaim. http://legislature.mi.gov/doc.aspx?mcl-600-2145
Sec. 2145.
 
In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.
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Submitted and pretrial date received. 30 days to prepare!!

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