JWSom

Portfolio Recovery served me Papers in Michigan

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Afternoon, 

 

Like many others here, looking for some guidance for the best course of action on my part.  I just received a summons and complaint form this past Saturday.  Delivered by person to my home.  Below is the answers to what I have found to be the "starter" questions. 

 

1.  Who is the named plaintiff in the suit? Portfolio Recovery Associates, LLC as successor in the interest of CIT BANK/DELL FINANCIAL SERVICES, LLC, Norfolk VA

 

2. What is the name of the law firm handling the suit? Kevin L Holst & David M. Greenbaum, Norfolk VA

3. How much are you being sued for? $2,561.20

4. Who is the original creditor? CIT BANK/DELL FINANCIAL SERVICES

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

6. How were you served? In person

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Nothing that I'm aware of.  

9. What state and county do you live in? Michigan, Oakland

10. When is the last time you paid on this account? After looking through emails 3/13/2013

    

11. What is the SOL on the debt?  6yrs.-I beleive

12. What is the status of your case? 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 contact at all.

15. How long do you have to respond to the suit? 21 days from Saturday

16. What evidence did they send with the summons? Typical complaint with a boiler plate exhibit A affidavit. Nothing else. 

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@JWSom

 

Welcome to the club no one wants to join. Please take this time to read and learn before taking action. Know your deadlines; they're found in the Michigan court rules of civil procedure (MCR). If you haven't read this yet, start here:

 

http://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/

 

We need to know what your complaint alleges. If you are being sued on an account stated cause of action, you will need to submit your own counter affidavit of denial with your answer. It's always advisable to keep specific identifiable information out of your postings here. 

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@Brotherskeeper

 

Complaint 

1. Jurisdiction and venue are proper in this court

2. Plaintiff's , Portfolio Recovery Associates, LLC, predecessor in interest is CIT BANK / DELL FINANCIAL SERVICES, LLC. - sorry for the caps, copy from the sheet

3. Plaintiff's assignor allowed Defendant to charge goods and or services on open account and upon defendant's promise to pay for same

4.Upon information and belief, Defendant has possession of the agreement up which this claim is based

5. Plaintiff's assignor sent statements on account number ***********XXXX to defendant

6. Plaintiff and it predecessors in interest have performed it obligations under the terms of the agreement

7. Defendants has not paid the balance owing on the account despite Plaintiff and Plaintiff's assignor demands for payment; Defendant's failure to pay has resulted in default on the account. 

8. Defendant is now justlly indebted to Plaintiff over and above all legal counterclaims, in the amount of 2,561.20.  See attached documents which evidence Plaintiff's assignment and the amount due and owing on this account "Exhibit A" 

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@Brotherskeeper

 

I don't believe that I have the card agreement anymore.  I will attempted to look around for it.  The account was opened in 2008, so it's been some time.  

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@Brotherskeeper

 

I don't believe that I have the card agreement anymore.  I will attempted to look around for it.  The account was opened in 2008, so it's been some time.  

 

See post #11. I don't know if this is the correct one for your alleged account:

http://www.creditinfocenter.com/community/topic/319739-question-for-anyone-involved-with-dfsdellcit-as-the-oc/?p=1237277

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@Brotherskeeper

 

That does match, at least the wording is correct.  I did have a Dell Preferred account offered the CIT Bank.  So if I'm reading that correctly, then arbitration meet be a better route? 

 

Correct if I'm wrong, I should still answer the complaints right away and then could look further into the arbitration.  Also with arbitration, I read in a different post about the cost for me as the defendant vs the cost to the business or debt collector is sometimes swings better in the favor of the defendant.  Although reading through that security of that agreement, I having a hard time making heads or tails.  

 

Thank you again for your help! 

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@Brotherskeeper

 

That does match, at least the wording is correct.  I did have a Dell Preferred account offered the CIT Bank.  So if I'm reading that correctly, then arbitration meet be a better route? 

 

Correct if I'm wrong, I should still answer the complaints right away and then could look further into the arbitration.  Also with arbitration, I read in a different post about the cost for me as the defendant vs the cost to the business or debt collector is sometimes swings better in the favor of the defendant.  Although reading through that security of that agreement, I having a hard time making heads or tails.  

 

Thank you again for your help! 

 

I do not know if the agreement I gave you is the correct one that covers any year your alleged account was open and/or allegedly defaulted upon. If you decide to pursue arbitration, you'll need to research to find out. 

 

I know next to nothing about arbitration, only what I've read on CIC and another forum. With a debt buyer, the goal isn't to actually go through the arbitration process. The aim is to get it out of court and have the debt buyer drop rather spend the money necessary to arbitrate. 

 

I am not a lawyer, but I would not answer the complaint until reading further about arbitration. If you do decide to go that route, your answer may have to reflect that. Also, you may have to write to plaintiff's attorney a notice of election of arbitration, and/or file a motion with the court. This thread has some info and helpful links. Personal Message (PM)  the Michigan posters in these threads or @firsthardcheese if you want to ask any questions. It would be helpful to others coming behind you if you could post here whatever you end up doing, especially any documents you draft.  http://www.creditinfocenter.com/community/topic/326127-midland-funding-suing-in-michigan/?p=1324431

 

If you decide to battle on in court, we can help. Oakland County has a great law library and a free legal aid clinic. 

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You would only want to arbitrate with JAMS.  Your costs are capped at 250.00, they could spend upwards of 5-6K to see it though.  Most JDB's wont ARB, and drop the case if compelled to do so.

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@shellieh98 or @fisthardcheese - I just want to make sure I have my ducks in a row, I should answer the complaint and then file a motion with court to go through ARB with JAMS?  Or do I just answer the complaint and then sent a certified letter to the lawyers for JDB's telling them that I'm excising my rights per the card holder agreement to go through JAMS for ARB.  

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@bmc100, I have been over your post http://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defendingand just wanted to make sure I have a good understanding of the my next steps.  

 

As of right now, I was planning on answering the complaint, but due to the fact there was only an affidvait from a custodian of records JBD  with a bunch of talk of  business records "maintained in the ordinary course of business" and no bill of sale or other documents to support ownership on either part, I wondering if I should motion for dismissal due to lack of proof - if I'm saying that right.  

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@JWSom I don't know the rules in MI well enough to say if you should answer it or not.  Some states say by answering, you have accepted jurisdiction, and they deny ARB. (FL) for one.  Other states you answer then ask for arb, and yet even other states you answer, but you motion for ARB in your answer.  So you need to read MI rules to see what your state says. 

I would file a motion to Dismiss or in the alternative stay case pending contractual arb. per the agreement.  But check your rules.  If you do a motion to dismiss for the reasons in your post above, you should Elect arb in in it at the same time.  

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@shellieh98 - thank you for your reply.  I've been reading @bmc100 steps on how to defend.  I leaning toward filling a motion next week to dismiss on the basis the JDB has subitted with their complaint enough evidence to prove that we have any kind of relationship other than hearsay.  Aside from this summons, I have no idea who these people are or if their complaint is valid.  I've just been looking around for the correct forms, format and legal wording to get the motion in place.  

 

@bmc100 - your post is great, all your advice has been awesome.  

@Brotherskeeper - your help have been great too.

 

Any further help or guidance is welcomed

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@JWSom

 

Are you planning on filing a motion to dismiss in lieu of an answer?

 

On what grounds are you basing your motion to dismiss? 

 

What are the deficiencies in their complaint?

 

What (redact personal info) does the affidavit claim? Who is the affiant? Is this affidavit dated more than 10 days prior to the complaint?

 

If the court grants your motion, is the relief requested dismissal without prejudice (meaning plaintiff can cure complaint and refile, or judge grants their request to amend complaint)?

 

I hope you will reconsider the arbitration strategy. For the same amount of effort in drafting a motion, you may have a better chance of getting this case dropped. (IANAL)

 

 

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@Brotherskeeper, my motion was because I've never had any contact with JDB aside from the summons, no phone calls or other forms of communication.  Aside from their internal form affidavit that says they have records and such that they are the successors, they didn't supply any supporting evidence to the original complaint.  I don't feel they have provided any evidence that this is debt is true or believes to me.  Going off the suggestion of @bmc100 from his post: http://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/numbers 7 & 8 in his list sounded very logical and make perfect sense that I would want for this to show their complete hand to me.  However, like a lot of us as we start on this forum, I'm very neverous and not sure how to start, but I plan to fight in every legal way possible.  

 

If it's a better route to filing my answers, then do I filing a motion to go through ARB with JAMS ( I'm still fuzzy on that process) then I will focus my efforts there.  I just didn't want to let the chance to MTD to slip away, considering there is no support evidence aside from this affadvit (statement) stating they have "records" from the OC to Dell Financal and then to them.  

 

I hope this makes sense.  

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@JWSom

 

I know you're new to all this and it is very confusing. We need to help you understand a bit more before you take any action. BMC100 has an enviable legal aptitude coupled with a depth of knowledge gained from a lot of experience and study and time. 

 

It appears to me that you may have a misunderstanding of what a complaint is, what required elements a plaintiff must plead for each cause of action alleged, and what it means for an attorney to sign such a complaint. 

 

I asked you to post a redacted copy of the affidavit and/or the other items attached to your complaint as "Exhibit A." 

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@JWSom They did plead assignment in their complaint.  I don't know if they need the actual bill of sale when they file attached, but they plead assignment and said they had it.  It would be a formality if the bos was required, they would remedy quickly.  If you are interested in arbitrating with JAMS (only) you would need to either plead arbitration as an affirmative defense in your answer, OR file a motion to dismiss or in the alternative stay case pending private contractual arbitration per the credit card agreement.

 

The sweet thing is, they plead in their pleadings you had the agreement.  They did that because they don't have one.  So they should not be able to object to this one, because this is the one you have, and they say you have it.

 

 

Dell Citibank agreement.PDF

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@shellieh98 - thank you for clarifying.  So to make sure I understand my next steps, I will answer the complaints and in my affirmative defense put that I would like to resolve this in private arbitration.  

 

@Brotherskeeper - is this more along the lines of your thinking?  

mc03.pdf

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@JWSom

Here are 2 articles to explain motions:

http://nationalparalegal.edu/public_documents/courseware_asp_files/researchLitigation/PreTrialPractice/PreTrialMotions.asp

 

This one is Michigan specific, written for lawyers:

http://www.icle.org/modules/books/chapter.aspx?chapter=17&book=2012555670&lib=litigation&sections=2&from=store

 

You may file a motion to dismiss to compel arbitration in lieu of an answer. If your motion was denied, you could file an appeal or then file your answer.  DeCaminada v Coopers & Lybrand, LLP, 232 Mich App 492, 591 NW2d 364 (1998). https://scholar.google.com/scholar_case?q=DeCAMINADA+v.+COOPERS+LYBRAND&hl=en&as_sdt=4,23&case=7488325688506699796&scilh=0

 
'Generally, a defendant "must serve and file an answer or take other action permitted by law or these rules within 21 days after being served...." MCR 2.108(A)(1). However,
 
     [w]hen a motion ... is filed, the time for pleading set in [MCR 2.108(A) ] is altered as follows, unless a different        time is set by the court:
 
     (1) If a motion under MCR 2.116 made before filing a responsive pleading is denied, the moving party must     serve and file a responsive pleading within 21 days after notice of the denial. However, if the moving party, within 21 days, files an application for leave to appeal from the order, the time is extended until 21 days after the denial of the application unless the appellate court orders otherwise. [MCR 2.108( C )(1).]
 
Here, despite plaintiff's protestations, defendants' motion to compel arbitration was a motion under MCR 2.116. See MCR 2.116( C )(7).[1] Thus, once defendants filed a timely application for leave to appeal, the time for filing an answer was extended until after the application was resolved. Under these circumstances, plaintiff's entry of a default was improper, and we decline to dismiss defendants' appeal.[2]'

 

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Here you go @Brotherskeeper and @Goody_Ouchless per your request.

 

(IANAL) I believe PRA submitted just enough to get a default judgment if you fail to file a responsive pleading (answer) or motion in lieu. This is their business model. 

 

Dell sold to directly to PRA (without other JDBs in the assignment chain) in 2014 for an alleged account in default as of late 2013. I could be wrong, but IMO the likelihood of PRA having more account records is high. They would provide these to you during discovery in response to your requests for production of documents. 

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Take @Brotherskeeper advice and file for arbitration.  He knows Mich law and procedure very well and if he tells you arb is preferable, then be assured it is.

@debtzapper

I truly appreciate your praise, but it's undeserved! I've never personally used the arbitration clause in Michigan court, nor assisted any CIC poster in any significant way. CIC members whose experience and informed opinions I respect urge posters to consider arbitration if an applicable account agreement has an arbitration clause and the defendant hasn't gone too far into the court process. From my recent reading here on CIC and on another forum, motioning to compel the court to order arbitration--with a JDB especially--has turned out very well for defendants. However, it isn't a slam dunk as some JDBs have opposed these motions and some judges have denied them.  Original creditors appear to be more than willing to use the arbitral forum for higher debts.

 

As we all know too well, fighting in court takes skills, time and talent that some pro per posters lack. My opinion (for what it's worth) is that using the recently drafted and successful MTC/MTD arbitration exemplars and strategies tailored to state law and court rules is worth trying. If the MTC/MTC is denied, the defendant remains in court to continue the fight.  My goal is to add to the body of knowledge and current resource material to help Michigan defendants fight and (fingers crossed) prevail. It would be great if recent Michigan posters who have successfully or unsuccessfully used arbitration would be so kind as to post their strategies, methods, letters and motions to assist others coming along.  Pay it forward.

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