ryan5439

Sued by BofA Lawyer Stillman representing

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1. Who is the named plaintiff in the suit?

 

Bank of America

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Stillman law office

3. How much are you being sued for?
 

7k

4. Who is the original creditor? (if not the Plaintiff)

 

BofA

5. How do you know you are being sued? (You were served, right?)

 

yes, served

6. How were you served? (Mail, In person, Notice on door)

 

in person

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

 

yes

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? 

 

Only stillman saying that BofA may invoke its right to sue you - I called stillman to talk about it - i said I could pay later after my disability cleared - they sued anyways

9. What state and county do you live in?

MI, Wayne county

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

2013 SoL is not applicable

11. What is the SOL on the debt? To find out: 

6yrs
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).

 

suit served

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? 

 

Did not receive a questionnaire. 

 

1. That the defendant herein is indebted to the plaintiff upon open account or pursuant to contract, and defendant accepted same.

2. Plaintiff has completed performance and defendant agreed to pay the account, copy attached.

3.  There is presently due and owning, over and above all legal counter claims, the sum of $6917.91

4. Plaintiff requests judgement for $6917.91 plus court costs.

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.

 

Attached is a form from BofA simply stating my name, account number, amount owed, and the last interest charge.
 

Is this worth it to fight since its BoA directly not a JDB? I have just been cleared for disability (is that any kind of defense?) - i was in a bad car accident and that's why I couldn't pay it...I called stillman and told him i could pay after i got cleared for disability and he sued anyways. Very scared I dont know what to do!!!

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Fighting an original creditor lawsuit is possible but not easy.  I won't tell you it can't be won but it is very very hard due to the fact the OC has their own records and can testify to them.  That is the bad news

 

The good news is if you are on disability only such as SSDI that cannot be garnished and your bank account cannot be levied.  Even if they get a judgment they cannot collect.  

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Plaintiff has completed performance and defendant agreed to pay the account, copy attached.

Attached is a form from BofA simply stating my name, account number, amount owed, and the last interest charge.

 

What's the interest? Over 25%?

http://www.legislature.mi.gov/%28S%28hgdqrn300wjg5lr1e135q3sr%29%29/mileg.aspx?page=GetObject&objectname=mcl-438-32

 

No affidavit, statements, cardmember agreement?

Possible Motion to Dismiss for failure to comply with Rule 2.113 (F) Exhibits; Written Instruments. (1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit

 

If you deny it/insufficient information and force them to come up with actual proof, such as statements they'll probably start offering to settle at a discount (probably 1099C for "forgiven" amount) when you show up for your court date.

 

You can contact a consumer attorney who would have an idea of what you're up against with BofA and the law firm they've picked.

http://www.consumeradvocates.org/find-attorney

Watch out for the ones who only recommend bankruptcy.

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If you deny it/insufficient information and force them to come up with actual proof, such as statements they'll probably start offering to settle at a discount (probably 1099C for "forgiven" amount) when you show up for your court date.

 

No they won't.  BoA is an aggressive litigant and they have all the records to prove their case.  Especially in creditor friendly Michigan.  They will win this very easily and the Stillman firm is a VERY aggressive consumer debt suit firm.  

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@Clydesmom well there you go, doesn't even sound worth the OP seeing an attorney. You mentioned it's possible but not easy to fight this earlier. Do you have a good attorney recommendation for them or don't even bother?

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@Clydesmom well there you go, doesn't even sound worth the OP seeing an attorney. You mentioned it's possible but not easy to fight this earlier. Do you have a good attorney recommendation for them or don't even bother?

 

The best way is to use www.naca.net to find a consumer lawyer.  Michigan is a big state and recommending a lawyer without knowing WHERE in MI they are is impossible.

 

The reality is the OP does not have the money to fight an OC suit for $7k if they are unemployed and waiting on disability.  No consumer attorney is going to take the case on contingency since the FDCPA does not apply to OCs.  

As I said in my first response:  if they are collecting disability it doesn't matter if BoA gets a judgment they cannot garnish or levy those payments so they will not collect.  The OP appears to be collection proof so it may not matter.

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They said Wayne County in the first post. Maybe you know of a consumer atty with the reputation to fight like you've heard about Stillman?

Just giving options in case the OP isn't going to be forever collection proof and doesn't want a judgment sitting there for 10 years plus a renewal.

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They said Wayne County in the first post. Maybe you know of a consumer atty with the reputation to fight like you've heard about Stillman?

Just giving options in case the OP isn't going to be forever collection proof and doesn't want a judgment sitting there for 10 years plus a renewal.

 

Not in Wayne County.  That is the Detroit area and I lived on the other side of the state.  As I said before NO attorney is going to do this for free and given the OPs financial situation they are not going to have $2000 or more to hire a lawyer to fight this suit.  

 

This is an OC suit and the defenses that are available for a JDB suit are off the table.  While the OP's financial situation is sad and unfortunate it is not a defense to defaulting on debt.  Short of identity theft there are few if any defenses when an OC comes after you.

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This does not sound good at all...You would think there would be some law that helps you out vs creditors if you get injured and cant work....sigh =(

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Did they include an affidavit? Open account in Michigan requires one dated within 10 days of the complaint.

http://www.legislature.mi.gov/%28S%281wlakondzs0krx1svuqw4cke%29%29/mileg.aspx?page=getobject&objectName=mcl-600-2145

 

No contract attached- see rule 2.113 from earlier.

 

Both are grounds for you to file a motion to dismiss. The Judge would give them time to fix. If they don't, dismiss w/prejudice. No answer needed at this time but you need to either submit the Motion or Answer before the deadline given in the complaint. Both court and Plaintiff get copies. See if Michigan requires Notice of Motion along with the motion if going that route.

Remember to call around for NACA attorneys.

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@ryan5439

 

A consultation with an experienced consumer attorney as @Clydesmom suggested  http://www.consumeradvocates.org/ is very good advice. If your financial situation is such that you qualify for legal aid or are a veteran and/or senior citizen, a legal aid or pro bono bar attorney may agree to represent you. It sounds like you were trying to negotiate a payment program. You might find some answers here:

 

http://michiganlegalhelp.org/self-help-tools/consumer/ive-been-sued-debt-collection-case

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@CCRP How would I write that up in the motion to dismiss/answer?

 

A motion to dismiss is SEPARATE from your answer.  Two entirely different issues.  If you are uncertain on what to do consult a lawyer.  The anonymous person on the internet telling you exactly what legal documents to file and interpreting the law could be a 10 year old home with the flu.  Be VERY careful following advice blindly without educating yourself.

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The affidavidt doesn't have to be within 10 days of filing, it just means if it is not 10 days within filing they cannot use it as prima facile evidence for like a summary judgement. Read the thread pinned at the top of this forum pinned by bmc100. It will give you more direction in answering the suit.

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@ryan5439 you'll want to read up on Michigan rules of civil procedure.

http://courts.mi.gov/courts/michigansupremecourt/rules/pages/current-court-rules.aspx

Section 2

Rule 2.115 is the rule that allows you to file a motion prior to an answer. Contract not attached (2.113 F) Affidavit not attached and/or doesn't meet Section 600.2145

also see 2.111 F 2 for defenses.

2.116 c 8 Your complaint mentioned they're going for breach of contract and open account. An exhibit is part of the pleading for all purposes.

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@shellieh98 The affidavidt doesn't have to be within 10 days of filing, it just means if it is not 10 days within filing they cannot use it as prima facile evidence for like a summary judgement.

it wasn't in the pinned thread but is discussed here with caselaw. If they need an affidavit to show they've met the business records exception to admit records for open account or account stated, it does sound like the affidavit must be with 10 days.

http://www.creditinfocenter.com/community/topic/325482-in-michigan-can-plaintiff-bank-post-date-an-affidavit/

 

While a creditor may establish a prima facie case of indebtedness in an open account action by annexing both an affidavit of the amount due and a copy of the account to the complaint pursuant to MCL 600.2145, that action is not required to commence an open account action. A creditor may instead prove his or her account "in the ancient way" by offering testimony and other evidence demonstrating indebtedness. McHugh v. Butler, 39 Mich. 185, 186 (1878) ("Here the affidavit was made out of time, and when the plaintiff went to trial his situation was no better than it would have been if no affidavit had been made. He was required to prove his case in the ancient way."); see also Snyder, 143 Mich. at 351-352, 106 N.W. 1106.

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@CCRP626. He is dealing with an original creditor. The only thing that would benefit him is it would make them work a bit harder. They can amend with a new affidavit at any time. And let's don't argue semantics. Be realistic. We don't even know if the affidavidt is stale, so until that time it doesn't matter. What does matter for the OP is getting out of this for the least possible amount. the OC has the records, B of A is very litigious. We can give all the best advice as possible, but the fact is, if he loses, it is going to cost him more.

@Blue Squad I don't know if there is an arb clause, but it is an original creditor....they will go to arb if the OP requests it. He would most likely lose there.

@ryan5439. I usually argue to fight to the end, but MI has its own unique set of rules. If you just want to settle, most original creditors will settle for around 50% of the debt. You might plead a hardship case to them and offer to settle around 30%, they may take it, or come back with a different figure. Then you come back at 50%. Or you can try to fight. I would at least consult a Naca consumer attorney first before you do, they will usually consult with you for free, or a small fee

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Is arbitration through JAMS a possibility?

 

 It is if the account predates 2003 (B-A dropped arbitration after 2003 or 2004) you have a copy of the agreement AND you can convince the court to compel........ you MIGHT get it into arb. But with BA being the OC and given their litigation predisposition (BA is like a Bull seeing Red in litigation)  it is most likely that they would follow into arb. If the amount they are trying to recover is extremely large ( say over 30k + ) then the arb fee's ( are based somewhat on the amounts claimed ) MIGHT deter them, but I wouldn't bet the farm on that.

 

I'd concentrate on avoiding a SJ and try and get my case to a jury. A jury might find your "guilty or owe", but are much more likely to award a much smaller amount taking OP's disability into account. And then there's a very far outside chance they might uphold BA claims, but come back with little to nothing on an award amount. But this is stretching the envelope a bit here as most juries are fickle and could go either way..

 

The jury would be the best shot and most viable shot at mitigating damages short of BK..............which is available in any case. That would be the route ( one full of big ole axle busting pot holes ) I'd attempt to steer to.

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I'm digging up some old threads to find out how others dealt with an OC.  Here is one:

 

http://www.creditinfocenter.com/community/topic/313216-original-creditor-defenses/

 

 

@ryan5439

 

There are some lawyers on NACA who could provide you some free initial (or low cost) consultation, so it may be wise to contact them (and you have nothing to lose by simply reaching out):

 

http://www.consumeradvocates.org/

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@Blue Squad National Consumer Law Center (NCLC) has some good materials available, hardcopy (reference desk not for checkout) and web subscription. Pricey but something your local law library probably subscribes to. Some of their database, like depositions of OC records custodians I'm not sure where else you'd have access without paying an attorney.

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@ryan5439

 

FYI--Garnishment Exemptions and Michigan’s State Income Tax Garnishment Law are outlined in this white paper by a Stillman senior attorney:

 

Michigan Debt Collection Laws
Submitted by Mimi D. Kalish, Esq., Senior Associate, Stillman Law Office

 

http://www.nationallist.com/image/cache/White_Paper_Michigan_Debt_Collection.pdf

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