MCS100

Help! Michigan Summons and Complaint/ Midland Funding/ How to Answer

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Hello

 

Need some guidance on how to properly answer a summons and complaint we received in June, this is all new to me and have read through posts but really confused as to how answer complaint.  Any help on how to answer, would be appreciated!  

1. Who is the named plaintiff in the suit? Midland Funding LLC 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Weltman, Weinberg & Reis

3. How much are you being sued for? XXXXXXX

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

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

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? XXXXX, Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) No idea

11. What is the SOL on the debt? To find out: 6 years as far as I know

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). Called Court Clerk and said it was filed

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? 

 

21 Days/ No questionaaire just a summons and complaint

 

1.The plaintiff is the owner of within credit card acccount through purchase, bearing account number XXXXXXXXX. (It has the full account number)

2. By use of the account, the defendant became bound by the terms in the credit card agreement. The existence of this debt is established in the exhibit attached as Exhibit A.

3.The plaintiff has exercised its rights pursuant to the terms of said agreement to accelerate the time for payment of the entire balance due and owing by the defendant to plaintiff

4. Thata there is now due and oweing to plaintiff by defendant, the sum of XXXXXX on said credit card agreement.

5. Although demand has been made upon the defendant to liquidate the balance due and owing the defendant failed to do so.

 

 

 

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.

 

1. There is a really small print terms and agreement attached, looks like it could be printed off the internet.

2. A single page that says Field Data at the top with an account number blacked out, name, partial SS#, address, old phone number, date of open, last payment, amount, last purchase date at the bottom it says Data printed by MCM from electronic records provided by Dell Financial Services pursuant to the Bill of Sale/Assignment of Accounts transferred on or about XXXXXX in connection with the sale of accounts from Dell to Midland Funding.

3. From MCM- pre-legal review- please call us.  account transfer detail original creditor: Webbank/ Original Acct# blacked out/ Current balance/ Current owner: Midland Funding/Current servicer: MCM / MCM account# blacked out payment due

says that on XXXXX your webbank account previuosly serviced by oo on behalf of Dell financial was sold to MIland Funding LLC which is now the sole owner of this debt.

 

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@MCS100

 

Welcome. Good you are reading up on this. It takes a while to understand it all. Take your time to learn before taking action.

 

First, you need to determine the deadline date by which you must file an answer or motion in lieu of. This is 21 days from the date you were personally served. Second, get a magnifying glass and read the Webbank agreement plaintiff attached to see if it contains an arbitration clause. If you just can't read it, find another copy online. Third, if you have no idea when an alleged last payment was made, try to find out. Fourth, the amount plaintiff is suing to collect may determine how hard plaintiff will fight. 

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Thank you for replying, it is much appreciated!

 

I didn't have a magnifying glass so I took a picture with my phone and blew it up to read. It does have an arbitration notice, it says that any claim relating to your account may be resolved by binding individual arbitration, but the arbitration rules are simpler and more limited than rules applicable in the court, and arbitration decisions are subject to very limited review. Claims may be arbitrated only on an individual basis. If either party chooses to arbitrate a claim, neither party will have the right to litigate that claim in court or to have a jury trial on that claim or to participate in a class action or or representative action with respect to such claim. This is in bold at the top, What does that mean? I am clueless?

There is also reference to JAMS and AAA on there

On the amount they are suing for, it is the same amount listed on the document labeled Field Data, and the MCM letter that I referenced above. What does that mean? How do you think they will fight?

Also, in the summons, the amount they are suing for is they same and it says plus cost.

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bassplyr

 

I appreciate your input!!!

 

The date of the last payment was a little over a year ago, I didn't want to be very specific, just in case. The amount that they are suing for is between $1000-$1500. Heres where I am stumped about affirmative defenses, Should I claim lacks legal standing and failed to state a claim? I just didn't know how to word everything without looking like a big dummy.I am also not sure how to respond to the complaints that I listed above, I know from reading BMC100 post how to deny etc....but I have to give a reason for each, again I am not sure how to word etc....

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bassplyr

 

I appreciate your input!!!

 

The date of the last payment was a little over a year ago, I didn't want to be very specific, just in case. The amount that they are suing for is between $1000-$1500. Heres where I am stumped about affirmative defenses, Should I claim lacks legal standing and failed to state a claim? I just didn't know how to word everything without looking like a big dummy.I am also not sure how to respond to the complaints that I listed above, I know from reading BMC100 post how to deny etc....but I have to give a reason for each, again I am not sure how to word etc....

 

Don't worry about looking like a "dummy" here on CIC. I am not a lawyer (IANAL), but for $1000 - 1500, arbitration is an option I would seriously consider. There are Michigan posters here that have recently successfully motioned to dismiss to compel arbitration and had the JDB plaintiff drop the case rather than go to arbitration. No guarantee, but IMO worth a shot. 

 

When is your deadline to submit a response to the complaint?

 

Use whatever time you have to read up and learn. Post your drafts with questions so that informed CIC members can assist. 

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Deadline is in this month. I did mark on my calendar. I will read on the arbitration thread to get more info. I did find a dell preferred account credit card agreement online, that I can actually read. They only attached a portion of it, not the whole thing. I will also post my answers to start to the claims first and hopefully will get some feedback from more experienced posters than me. Again, thanks

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I would like to motion for arb, does anyone have the correct form or template that I could for michigan court?

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MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND
DISMISS
OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING
ARBITRATION





NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2015, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2015, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached). 

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(   B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

© YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. 

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." 

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2015 


(Your name typed), Defendant, pro se



VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief. 



_______________________________________
XXXXXXXXXX, Defendant Pro Se


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL) 

____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed a copy of this MOTION to: 

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address 


By: Your name typed, Defendant

Date: __________________, 2015

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After first carefully reading MCR on motions and grounds MCR 2.116, I would strongly urge anyone in Michigan to read the judge's Civil Proceedings Benchbook chapters on motions and arbitration. The rules require a brief to be filed with the motion if it presents an issue of law. IANAL, but it appears as if this motion template above combines the motion and brief in one. The case cites above need updating:  AT&T Mobility v Concepcion, 563 U.S. 321 (2011); Rent-A-Center West, Inc. v Jackson, 561 U.S. 63 (2010);  Stolt-Nielsen S.A. v AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), 

 

http://courts.mi.gov/education/mji/Publications/Documents/Circuit-Court-Civil.pdf

 

Chapter 3: Pretrial Procedures 3.1. Motions .......................................................................................................... 3-2

 

3.1 Motions A. Form

To apply for an order from the trial court, the request must be made by motion. “Unless made during a hearing or trial, a motion must “

     ( a ) be in writing, “

     ( b ) state with particularity the grounds and authority on which it is based, “

     ( c ) state the relief or order sought, and “

     ( d ) be signed by the party or attorney as provided in MCR 2.114.” MCR 2.119(A)(1).

 

If a contested motion is filed after a proposed order is rejected under MCR 2.119, the party must attach a copy of the rejected order and an affidavit. MCR 2.119(A)(4).

 

A brief is required if the motion or response presents an issue of law. MCR 2.119(A)(2). The maximum length of the motion and brief combined is limited to 20 pages. Id. However, the court may authorize a party to submit a longer brief. Id. The party submitting the brief must provide a copy to the judge. Id. [Check with your court clerk for your judge's requirements.]

 

 

Chapter 8: Rules in Particular Actions 8.1. Arbitration Under the Uniform Arbitration Act (UAA)....................... 8-2

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[i don't mean to scare anyone with this info. I just want to get it somewhere here on CIC in case it helps a Michigan poster who has to argue/defend arbitration.]

 

IANAL A motion to compel arbitration is a question of law:

 

 "Whether a dispute is arbitrable represents a question of law for the courts that we review de novo." Madison Dist Pub Sch v Myers, 247 Mich App 583, 594; 637 NW2d 526 (2001)  https://scholar.google.com/scholar_case?q=Madison+Dist+Pub+Schs+v+Myers,+247+Mich+App+583,+588%3B+637+NW2d+526+(2001)&hl=en&as_sdt=4,23&case=4266469330845452245&scilh=0

 

 

IANAL, but it appears that filing an answer without asserting arbitration as an affirmative defense may waive your right--may.(See cases below) A defendant can file an amended answer if needed per MCR 2.118:

 

Rule 2.118 Amended and Supplemental Pleadings

(A) Amendments. 

     (1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading if it does not require a responsive pleading. 

     (2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.

 

"Whether one has waived his right to arbitration depends on the particular facts and circumstances of each case." Madison Dist Pub Schools, supra at 588. Both state and federal public policy "favor arbitration as an inexpensive and expeditious alternative to litigation." Rembert v Ryan's Family Steak Houses, Inc, 235 Mich App 118, 123; 596 NW2d 208 (1999). Accordingly, "[w]aiver of a contractual right to arbitrate is disfavored." Madison Dist Pub Schools, supra at 588. "The party arguing there has been a waiver of this right bears a heavy burden of proof and must demonstrate knowledge of an existing right to compel arbitration, acts inconsistent with the right to arbitrate, and prejudice resulting from the inconsistent acts." Id. (internal quotation marks and citations omitted). Types of conduct that have been recognized as waiving the right to arbitrate include defending an action or proceeding to trial, filing an answer to a complaint without asserting the right to arbitration, filing a motion for summary disposition, and utilizing discovery procedures. Id. at 589.

 


IANAL Participating in some discovery and court process may not waive right to arbitration:
 
'A party’s participation in discovery is not per se a waiver of that party’s right to arbitration. Rather, the fact and extent of participation in discovery are facts to consider when evaluating whether a party’s behavior has, as a whole, been inconsistent with arbitration. We agree with the trial court that defendants’ acts were not sufficiently inconsistent with arbitration to constitute a waiver.
 
A party is prejudiced by inconsistent acts of the other party when it has “expended resources to litigate the merits of [its] case in the trial court.” Salesin v State Farm Fire & Cas Co, 229 Mich App 346, 357; 581 NW2d 781 (1998). Plaintiff argues that it expended tremendous resources on this matter due to defendants’ discovery requests; defendants argue that plaintiff’s burden was minimal. It appears that a party must expend more than just some time and resources in litigation to constitute sufficient prejudice. Madison Dist Pub Schools, 247 Mich App at 599-600. For most of the pendency of this case, it appears that nothing happened; while plaintiff clearly expended some effort responding to defendants’ discovery requests, they have not exerted the level of effort this Court has previously found to require a waiver. In light of our public policy favoring arbitration, we do not believe plaintiff has satisfied its burden of establishing a waiver.' 
 
IANAL This unpublished (non-binding) Court of Appeals case lays out your arbitration arguments with binding case cites: Cohen v. Levenson, No. 302746 (Mich. Ct. App. Apr. 5, 2012). 
 
 
 

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This is why I suggest filing a Motion to dismiss in lieu of an answer.  Also motion fees may be less than filing an answer fee.  I have since learned the proper title according to the FAA would be a "Petition to compel Arbitration, and a Motion to dismiss or in the alternative to stay case pending Arbitration.

 

It's the little things.

 

I know other Michigan defendants have submitted that motion for Arb, and they have not had a problem, but it only takes one.  I suppose you could break it down, and make it a Motion and a really short brief.  Add in any case law  or court rules for your state that may pertain to the favor of Arbitration.

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This is why I suggest filing a Motion to dismiss in lieu of an answer.  Also motion fees may be less than filing an answer fee.  I have since learned the proper title according to the FAA would be a "Petition to compel Arbitration, and a Motion to dismiss or in the alternative to stay case pending Arbitration.

 

It's the little things.

 

I know other Michigan defendants have submitted that motion for Arb, and they have not had a problem, but it only takes one.  I suppose you could break it down, and make it a Motion and a really short brief.  Add in any case law  or court rules for your state that may pertain to the favor of Arbitration.

 

@shellieh98

I'm aware of one woman in particular who started here at CIC and switched (in a huff) over to debtorboards.They helped her using this motion and the judge denied it. I don't know why. Her JDB attorney was notorious Cruella DeVille.   I think as more defendants use this strategy, the JDBs will start pushing back where they can. Judges may or may not make allowances for pro se defendants if these motions to compel aren't drawn up in accordance with the rules. 

 

I agree with you that the motion in lieu of an answer is probably the way to go. Unfortunately, most posters are so terrified and clueless when they first stumble upon this forum, they aren't prepared to execute this strategy. You are helping, though!

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Yes, well I think you need a degree in writing just to be able to write a proper Motion and brief lo.  They are not easy to put the words in the order you want without confusing yourself, or who ever is going to read it.

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Need some guidance here anyone! Read my original summons and complaint above.

I opted to just answer denying everything and received a pre trial conference letter in the mail coming this month.

Today I received a Plaintiffs Civil Pre-trial Statement from a different attorney than originally listed on the summons and complaint. Looks like has only been a lawyer since 2013. 

I am clueless, what is this? Do i Need to Respond? If so, how? Please bear with me I have never had this happen before and really nervous when I go to pre-trial. See below what the lettert says:

 

Civil Pretiral Statement of Plaintiff

Now comes Plaintiff, midland funding LLC, by and through its counsel, WWR, and for its Civil Pretrial Statement presents the following:

1.List briefly facts of the case: Defendant entered into a CC agreement with XXXXXX, Plaintiff Midlanf Funding is the assignee of XXXXX. Defendant defaulted under the terms of the Agreement by failing to make the required payments, damaging Plaintiff in the amount of XXXXX.

2. Pleadings are satisfactory

3. Plaintiff will stipulate that damages are XXXX at the time of Complaint.

4. List all special damages not stipulated.

5. Admissions or waivers: Resaonableness and casual connection of bills are not stipulated.

6. Plaintiff will call the following witnesses: see attached

7. Plaintiff will submit the following exhibits: See attached

8. Discovery is not complete. Deiscovery requested. 60 days

9. Plaintiff may file a Pre-Trial Motion

10. This is a non-jury case, which will take 2 hours to try.

11. Settlement is possible.

 

 

Heres the second atached:

 

Plaintiffs Exhibit & Witness Lists

 

Now comes plaintiff, midland funding llc, by and through its counsel and for its exhibit list and witness list the following:

 

Exibit List

 

1. Application

2,. Credit card agreement

3. credit card statements

4. payments

5. Bill of Sale

6. Chain of Title

7. Pre-legal notification

8. notice of new ownership and pre-legal review

9. affidavit

10. any exibits on defendants exhibits list

11. any exhibit necessay to rebut any evidence presented by defendant

12. plaintiff reserves the right to amend this exhibit list as additional exhibits become identified through the discovery process

 

Witness List

1. custodian of records, Midland Funding llc

2. defendant, XXXX

3. any witness listed on defendants witness list

4. any witness necessary to rebut any eveidence presented by defendant

5. plaintiff reserves the right to amend this witness list as additional witnesses become identified through the discovery process.

 

 

Any thoughts? The only evidence they provided in the original summons is listed above, the MCM pre-legal review, a CC agreement I can't read and the page with Field Data at the top listed above.

Do I do anything or write anything at this point? PLEASE HELP!

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Need some guidance here anyone! Read my original summons and complaint above.

I opted to just answer denying everything and received a pre trial conference letter in the mail coming this month.

 

You did not post your redacted answer draft here before submitting it, so we don't know how you answered or whether you properly denied the complaint allegations. If you feel you made errors, you could follow the MCR to amend your answer.

 

Did you list any affirmative defenses under a separate heading? If so, did you include anything about arbitration?

 

What did the pre-trial conference letter say? Does it include the judge's calendar orders with deadlines?

 

I am clueless, what is this? Do i Need to Respond? If so, how? Please bear with me I have never had this happen before and really nervous when I go to pre-trial. 

It is advisable to read the Michigan Court Rules of Civil Procedure. MCR 2.401 Rule 2.401 Pretrial Procedures; Conferences; Scheduling Orders

http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/CHAPTER%202.%20CIVIL%20PROCEDURE%20(entire%20chapter).pdf

 

Here is the fill-in form for the Civil Pretrial Statement for Oakland County. Check your court's website to see if your county has a similar form or ask legal aid in your area. The Oakland County form is due at least 10 days before pretrial. Yours may be different. Ask the court clerk 

https://www.oakgov.com/courts/dc52div3/Documents/civil/general_civil/Civil_Pretrial_Statement_paperwork_2009-10-30.pdf

 

Notice to All Attorneys: This form shall be completed and served on all parties or attorneys of record and the original with the Court at least ten days before pretrial. Failure to meet these deadlines or to appear at pretrial may result in appropriate costs and sanctions. Only use the space allotted. The parties or their attorneys shall confer prior to pretrial in an effort to stipulate as to facts and law. Defendant may adopt plaintiff’s position on fact or legal authorities if appropriate.

 

Livingston County requires the pretrial statement to be filed 5 days before pretrial. https://www.livgov.com/courts/district/documents/civilpretrialstatement.pdf

 

Any thoughts? The only evidence they provided in the original summons is listed above, the MCM pre-legal review, a CC agreement I can't read and the page with Field Data at the top listed above.

Do I do anything or write anything at this point? PLEASE HELP!

 

They have requested 60 days for Discovery. If you plan on motioning to compel arbitration (MTC), you would not engage in discovery. If you do not intend to MTC, you need to get your discovery requests out ASAP. (I am not a lawyer, just my opinion.) They will not provide any more evidence to you unless you properly request it. You may see more "evidence" if they file a Motion for Summary Disposition (MSD). 

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Brotherskeeper thanks for replying, much appreciated.

What did the pre-trial conference letter say? Does it include the judge's calendar orders with deadlines? I meant to say that after I filed my answer, I received a Notice to Appear for a pre-trial conference, just has the date (this month) and the time. About a week later I received the Plaintiffs Civil Pre-trial Statement. Above that I listed. Am I suppose to file a Defendants Pre-Trial Statement? I did read the MI Civil procedure, it might as well be written in Chinese because I dont understand it. I didn't do a motion to compel arbitration in my answer. Is it too late now? IANAL either, you seem to know way more than I do. I am sure I screwed up the answer too, since I don't know what the H I am doing. I can see why people give in so quickly, very confusing and way above my head, plus its not worth it to hire a lawyer for such a small amount, doesnt make sense to do so. With what they sent in the mail I posted today, does this mean they have all sufficient evidence? Thanks for your help!!!! 

 

Livingston County requires the pretrial statement to be filed 5 days before pretrial. I live in a small town and County, they do not have a pretrial statement, not much of anything on their website. The lawyer is from a "BIG CITY" about 2 hours from where I live.

 

Heres my answer to the complaint

 

 

 

 

STATE OF MICHIGAN

IN THE XXX JUDICIAL DISTRICT COURT

 

XXXX
Defendant, acting pro se.

vs.                                                                                                                     Case No. XXX

Midland Funding LLC

Original Creditor: WEBBANK
Plaintiff,

______________________________/
XXXXX

By: XXXXX

 

Attorneys for Plaintiff

XXXX

XXXXX

XXXXXX

 

______________________________/

There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the complaint.

 

Defendant, appearing pro se, for its reply to the Complaint naming Midland Funding LLC., Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

 

 

ANSWER

 

1.            The Defendant denies this allegation in its entirety. The Plaintiff has failed to establish proof of ownership of the alleged account and has not provided proof of standing to sue.

2.            The Defendant denies this allegation in its entirety. The Plaintiff is making an unsupported statement that a contract or agreement exists without providing proof of ownership or details regarding use of the alleged CREDIT CARD account. Furthermore, Defendant also states that he never had an account with Plaintiff nor is any alleged account with Plaintiff in default.

3.            The Defendant denies this allegation in its entirety. Defendant has already stated that he never had an account with Plaintiff nor is any alleged account with Plaintiff in default.

4.            The Defendant denies this allegation in its entirety. Plaintiff has not provided sufficient proof, by way of admissible documentation, that Defendant has a “sum due” to Plaintiff.

5.            The Defendant denies this allegation in its entirety. Defendant has already denied that he owes the Plaintiff. Furthermore, Defendant states that he has never received a demand for the alleged amount due from Plaintiff. Defendant has already stated that he never had an account with the Plaintiff nor is any alleged account with Plaintiff in default.

 

 

AFFIRMATIVE DEFENSES

 

1.                  Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action. 

 

2.                  Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

 

3.                  Plaintiff has not proven that they are the real party in interest. Defense demands strict proof of ownership specifically that the alleged account was purchased.

 

4.                  Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's complaint and each cause of action therein failed to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

 

5.                  Midland Funding LLC., has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

 

Defendant prays this Honorable Court dismiss this case with prejudice, along with any further relief the court deems just and proper. Further the defendant sayeth not.

By the Defendant acting pro se,

Dated:  ____________

XXXXXXx

 

 _______________________________
 

XXXXXX

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@MCS100

 I started out like you, but now I have a basic understanding of "Chinese." This is baptism by fire. It's overwhelming, with a brutal learning curve. I'm doing research to see what options you have now for asserting arbitration as an affirmative defense by amending your answer, or if a motion for summary disposition is the best way, and under which grounds. Good news is that you denied each allegation of the complaint, and included "the substance of the matters on which the pleader will rely to support the denial." MCR 2.111(D). 

 

When is your pretrial conference? IANAL but I, were I in your shoes, would file a defendant's pretrial statement using the plaintiff's as a template.  I would call the court clerk to ask when the court's deadline is to file it. Post your draft so others here can help.

 

 @shellieh98  do you have a suggestion for MCS100? Does he have to amend his answer in order not to waive arbitration as an affirmative defense? 

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I don't know MI rules very well, but I have found in many states if arb isn't listed as the number 1 defense, the court may deny a motion to compel, so I would say yes. Most courts let you amend freely the first time, some have a time limit, if that time passes, they have to ask the courts permission.

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Its August 20th. How Do I go about filing an amended answer? Any examples? Do I still have to file a civil pre trial statement? in addition to the amended answer.

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Find in your rules if you need permission. If not you simply file a paper exactly like the one you did for your answer but change the title to "Defendant first amended answer"

For the first affirmative defense add in "Defendant chooses priviate contractual arbitration per the agreement governing this alleged account. It states that if you or we elect arbitration......blah blah " what ever the agreement says. At the end of that sentence say "see exhibit A"

Include a copy of the agreement, highlight the arb clause, and label it exhibit A. Then file it, send a copy to the plaintiff CMRRR.

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Okay, thanks.  Sorry i am full of questions--Just so I am clear
See if the Mi rules allow me to amend without permission. If I don't need permission, I can use my original Answer and put Defendant first Amended answer instead of Answer. and just add arbitration to affirmative defense as first one. highlight and send a copy to court and blood sucking lawyer. Right? The copy they sent me originally is unreadable it is so small, I found one online for Dell.
 
 2. do i need to still file a pretrial statement in addition the the amended answer, since they sent me one? 
3. When I list the arbitrational agreement in my answer, what part do I list ?  and do I have to state either JAMS or AAA?
4. Do I have to pay the filing fee up front to the court?

 

I will copy/paste my amended answer to get feedback

 

Thanks so much for your help, i really appreciate it!
 
 
 
Arbitration.

Except as expressly provided herein, any claim, dispute or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter-claims, cross-claims and third-party claims, arising from or relating to this Agreement or the relationships which result from this Agreement, including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement ("Claim") shall be decided, upon the election of you or us, by binding arbitration pursuant to this arbitration provision and the applicable rules and procedures of the arbitration administrator, including any applicable procedures for consumer-related disputes, in effect at the time the Claim is filed.

The party initially requesting arbitration shall select either the American Arbitration Association ("AAA") or JAMS as the arbitration administrator. If the organization selected is unacceptable to you, you have the right to select the other organization listed within 30 days after you receive notice of an election to arbitrate. If a selected arbitration administrator does not agree to arbitrate a Claim, the remaining arbitration administrator shall be selected. Claims may be referred to an administrator other than the AAA or JAMS only upon the express written consent of all parties to the arbitration.

We agree not to invoke our right to arbitrate any individual Claim you bring in small claims court or an equivalent court so long as the Claim is pending only in that court. It is the intent of the parties to require Claims to be submitted to arbitration on an individual basis only. Claims subject to this arbitration provision may not be joined or consolidated in arbitration with any Claim of any other person or be arbitrated on a class basis, in a representative capacity on behalf of the general public or on behalf of any other person, unless otherwise agreed to by the parties in writing. For the purposes of this arbitration provision, the terms "we" and "us" shall mean WebBank and Dell Financial Services, LLC, their parents, direct and indirect subsidiaries, affiliates, licensees, predecessors, successors, assigns and any purchaser of the Account or any receivables arising from the use of the Account, and each of their respective employees, directors and representatives. In addition, for the purposes of this arbitration provision, "we" and "us" shall mean any third party providing any products or services to you or us in connection with the Account (including but not limited to any credit bureau, debt collector or merchant, and including their parents, direct and indirect subsidiaries, affiliates, licensees, predecessors, successors and assigns, and each of their respective employees, directors and representatives) if such third party is a co-defendant with us in any Claims asserted by you or if any Claims asserted by you against such third party arise from or are related to the Account or any products or services provided to you or us in connection with the Account. For the purposes of this arbitration provision, the term "you" shall mean you and any person authorized by you to use the Account.

The foregoing shall not limit any existing rights at law or equity of any other persons under this arbitration provision. Any arbitration pursuant to this provision may be resolved without a hearing, if permitted by the rules of the arbitration administrator. If a hearing is held, it shall take place within the federal judicial district in which you live or at such other reasonably convenient location as agreed by the parties. If you initiate arbitration, you must pay the lesser of one-half of any required arbitration fees or $125.00, unless the applicable rules and procedures of the arbitration administrator or this arbitration provision provides for a lesser amount, and we will pay the remaining amount of any fees, including any required deposit. You may seek a waiver of any required arbitration fees under the applicable rules of the arbitration administrator. If you seek, but do not qualify for such a waiver, upon written request we will advance 50% of any arbitration fees required to be paid by you and will consider an advance of the full amount of such fees. If we initiate or elect arbitration, we will pay the entire amount of the arbitration fees, including any required deposit. Notwithstanding any provision of this arbitration provision or the rules and procedures of the arbitration administrator, we will be responsible for payment and/or reimbursement of any arbitration fees to the extent that such fees exceed the amount of the filing fees you would have incurred if your Claim had been brought in the state or federal court nearest your billing address with jurisdiction over the Claim. Each party shall be initially responsible for payment of their own attorney fees, witness fees and similar expenses. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitation and shall honor all claims of privilege and confidentiality recognized at law. The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. At the conclusion of the arbitration, the arbitrator may allocate arbitration fees in accordance with applicable law, provided that such fees do not exceed the filing fees that would have been incurred if the Claim had been brought in a state or federal court with jurisdiction over the Claim. Where authorized by applicable law, the arbitrator's award may also include attorney fees, witness fees and similar expenses. At the request of any party, the arbitrator will provide a written explanation of the basis for the award and the disposition of each Claim, including written findings of fact and conclusions of law. Judgment upon the award may be entered in any court having jurisdiction. The non-prevailing party may appeal under the rules of the applicable arbitration administrator to a three-arbitrator panel. This arbitration provision shall survive termination of your Account as well as the repayment of all amounts you owe under the Agreement.

This arbitration provision does not apply to any Claim as to which the provisions of this arbitration agreement forbidding arbitration on a consolidated, class-action or representative basis are not permitted by applicable law. If any portion of this arbitration provision is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this arbitration provision, provided, however, that if any provision of this arbitration agreement forbidding arbitration on a consolidated, class-action or representative basis is deemed invalid or unenforceable with respect to a Claim, then this arbitration provision shall, upon the election of either party, be invalidated and unenforceable in its entirety with respect to that Claim. In the event of a conflict or inconsistency between the rules and procedures of the arbitration administrator and this arbitration provision, this arbitration provision shall govern. YOU ACKNOWLEDGE THAT IF A CLAIM ARISES YOU MAY BE REQUIRED TO SETTLE THE CLAIM THROUGH ARBITRATION AND ARE GIVING UP YOUR RIGHTS TO LITIGATE THAT CLAIM IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION. You may contact the arbitration administrators and obtain their arbitration rules or learn how to file a Claim with the AAA or JAMS as follows: • JAMS • 1920 Main Street, Suite 300 • Irvine, CA 92614 • (949) 224-1810 • www.jamsadr.com • American Arbitration Association • 1633 Broadway, 10th Floor • New York, NY 10019 • (800) 778-7879 • www.adr.org STATE SPECIFIC DISCLOSURES As required by Utah law, you are hereby notified that a negative credit report reflecting on your credit record may be submitted to a credit reporting agency if you fail to fulfill the terms of your credit obligations. NOTICE FOR CALIFORNIA RESIDENTS: California law requires that we inform customers that should they fail to fulfill the terms of their credit obligation, a negative report reflecting on their credit record may be submitted to a credit reporting agency. If you are married, you may apply for a separate account in your own name. NOTICE FOR OHIO RESIDENTS: The Ohio laws against discrimination require that all creditors make credit equally available to all credit worthy customers, and that credit reporting agencies maintain separate credit histories on each individual upon request. The Ohio civil rights commission administers compliance with this law. NOTICE FOR MARRIED WISCONSIN RESIDENTS: No provision of a marital property agreement, a unilateral statement under Sec. 766.59 Wis. Stats., or a court decree under Sec. 766.70 adversely affects the interest of the creditor unless the creditor, prior to the time the credit is granted, is furnished a copy of the agreement, statement, or decree or has actual knowledge of the adverse provision when the obligation to the creditor is incurred.

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What I found on MI civil procedure for amended answer: I filed my original answer on 7-13-15

 

Rule 2.118 Amended and Supplemental Pleadings (A) Amendments. (1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading if it does not require a responsive pleading. (2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires. (3) On a finding that inexcusable delay in requesting an amendment has caused or will cause the adverse party additional expense that would have been unnecessary had the request for amendment been filed earlier, the court may condition the order allowing amendment on the offending party's reimbursing the adverse party for the additional expense, including reasonable attorney fees. (4) Amendments must be filed in writing, dated, and numbered consecutively, and must comply with MCR 2.113. Unless otherwise indicated, an amended pleading supersedes the former pleading. 

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