fyresine

Being sued by Midland Funding LLC in Michigan - Elected Arb denied by AAA, Summary Disposition, now what!?

Recommended Posts

I am being sued by Midland Funding and am planning to file a motion to dismiss/summary disposition before I file my answer but am having an extremely hard time finding any forms online to fill out to file for this. Can anyone help? I am finding examples but can't seem to copy the text to modify for my case.

ETA: See below for exact details on the case including Complaint and Affidavit.

Share this post


Link to post
Share on other sites

You can go to the courthouse to get this form or you can get it online with a simple Google search. Also, the courts may not have a specific form and require you to file the motion on pleading paper. Others from Michigan can help you.

Also, what is your reason to dismiss and is it a valid reason to do so prior to filing an answer. Usually a defendant cannot motion to dismiss a case from the start unless the plaintiff committed an error that cannot be corrected by the court they filed in (such as improper venue). Even then, the plaintiff has the right to argue against the dismissal. Other things such as dismissal due to SOL require an answer to be filed first and usually require discovery to show that there is proof that the debt is beyond SOL. Unless there is an error that is not correctable, I would suggest filing the answer and hold the dismissal until their back is against the wall.

Share this post


Link to post
Share on other sites

There is not sufficient evidence of assignment. 

A motion to dismiss in Michigan is also called Summary disposition which is technically what I am going to file. I would be filing on  MCR 2.116(8)

http://www.icle.org/Modules/Repositories/MCR/linked_display.aspx?lib=repositories&book=mcr&chap=02&rule=2.116

And I have tried Google - over and over and over. I can find examples from actual cases but no template to use. 

Share this post


Link to post
Share on other sites

The more research I am doing the more confused I am about what steps I should take to in order.

3/8: Received summons in mail
3/14: Received another summons taped to my front door

So I have 28 days to file a response but am reading I should file a MTD immedately.

Should I file my MTD/Summary Disposition before filing an answer? I have looked into arbitration but my original cardholder agreement says it cannot be done if it is in small claims court so I would have to motion to move it out of small claims to follow through with that. Also should I or should I not file an affidavit response? 

I have also received a separate letter from Midland stating some account information and it states on the back I can write them to request the following:
1) an account statement reflecting you name and charge-off balance and/or claimed balance, excluding any post charge off payments
2) A listing of all prior owners of this account and transfer information
3) Doumentation eveidencing the transfer of ownership of the account to Midland Funding
4) An account statement reflecting purchase, payment or other actual use of the account

Is this just a typical letter from them and has anyone had any experience writing them and actually getting valid documentation for #2 & #3? I am worried if I do file a MTD they will come up with the documentation and it may be better to try to move it out of small claims for arbitration....

Share this post


Link to post
Share on other sites
5 hours ago, fyresine said:

The more research I am doing the more confused I am about what steps I should take to in order.

3/8: Received summons in mail
3/14: Received another summons taped to my front door

So I have 28 days to file a response but am reading I should file a MTD immedately.

Should I file my MTD/Summary Disposition before filing an answer? I have looked into arbitration but my original cardholder agreement says it cannot be done if it is in small claims court so I would have to motion to move it out of small claims to follow through with that. Also should I or should I not file an affidavit response? 

I have also received a separate letter from Midland stating some account information and it states on the back I can write them to request the following:
1) an account statement reflecting you name and charge-off balance and/or claimed balance, excluding any post charge off payments
2) A listing of all prior owners of this account and transfer information
3) Doumentation eveidencing the transfer of ownership of the account to Midland Funding
4) An account statement reflecting purchase, payment or other actual use of the account

Is this just a typical letter from them and has anyone had any experience writing them and actually getting valid documentation for #2 & #3? I am worried if I do file a MTD they will come up with the documentation and it may be better to try to move it out of small claims for arbitration....

@fyresine

What court and county are you in? You may find this site very helpful  http://michiganlegalhelp.org/

If you are in small claims, you may file to remove the case to regular distric t court http://courts.mi.gov/Self-help/center/casetype/Pages/SmallClaimsSH.aspx

  • If you want to reserve the right to appeal any adverse decision to the circuit court, you must demand that the case be removed from the small claims division to the regular district court. See MCL 600.8408 and form DC 86.

 

What exactly does the complaint say? We need to know the cause(es) of action in order to know if you need to file a counter affidavit--if you decide to file an answer before filing a motion in lieu of. I am not a lawyer (IANAL) but I would look  carefully at the arbitration strategy before filing an answer.

@WhoCares1000 has asked some important questions about your grounds to file a motion to dismiss.  Michigan court rules do not require pleading paper. 

Share this post


Link to post
Share on other sites

Hello, I would like to thank everyone for their time and responses so far. Here is the complaint, affidavit and bill of sale with the Excel sheet they attached as "proof".  I will also be attaching the "We are required to provide some additional information" letter I received this week. 

VERIFIED COMPLAINT
ACCOUNT STATED

NOW COMES the Plaintiff, Midland Funding LLC, by its attorney, and for its Complaint against the above
named Defendant, FYRESINE, states to this Honorable Court as follows:
I. The Defendant resides within this court's venue and venue 1s proper in this court.

2. The amount in controversy is within this court's jurisdiction.

3. Plaintiff, Midland Funding LLC owns portfolios of consumer receivables, which it attempts to collect. When
working with individual consumers, Plaintiff, Midland Funding LLC and its affiliates generally attempt to contact
consumers like Defendant through several means, all in an effort to establish contact and to resolve the underlying
obligation. In doing so, Midland Funding LLC attempts to assess each consumer's willingness to pay, through
phone calls, letters or other means. Midland Funding LLC attempts to exclude consumers from its collection
efforts, where Midland Funding LLC believes those consumers are facing extenuating circumstances or hardships
that would prevent them from making any payments.

4. When Midland Funding LLC contacts consumers, it strives to treat consumers with respect, compassion and
integrity. Midland Funding LLC works with consumers in an effort to find mutually·beneficial solutions, often
offering discounts, hardship plans, and payment options. Midland Funding LLC's efforts are aimed at working with
consomen, to repay their obligations and to attain financial recovery. Midland Funding LLC strives to engage in
dialogue that is honorable and constructive, and to play a positive role in consumers' lives.

5. Despite Midland Funding LLC's efforts to reach consumers and resolve the consumer's obligations, only a
percentage of consumers choose to engage with Midland Funding LLC. Those who do are often offered discounts
or payment plans that are intended to suit their needs. Midland Funding LLC would prefer to work with consumers
to establish voluntary payment arr.i.ngements resulting in the resolution of any underlying obligations. However, the
majority of Midland Funding LLC's consumers ignore calls or letters, and some simply refuse:! to repay their
obligations despite an apparent ability to do so. When this happens, Midland Funding LLC must decide then
whether to pursue collection through legal channels, including litigation like the present action against Defendant.
Although the Account is now in litigation, Plaintiff remains willing to explore a mutually·beneticial solution through
voluntary payment arrangements, if possible.

6. The Defendant had an agreement for a/an CREDIT CARD, originally with CITIBANK, N.A..

7. The Defendant has defaulted in payments on the above mentioned account, said account being shown in the
attached Affidavit and Statement of Account.

8. Midland Funding LLC purchased the account shown in the attached Affidavit and Statement of Account and was
assigned all rights to the account in the normal course of business.

9. Midland Funding LLC has notified the Defendant of the above mentioned account and the Defendant has failed to
pay for same. 
10. There is presently due and owing over and above all legal counter-claims the sum of $6,965.37. See attached
Affidavit and Statement of Account.

11. Midland Funding LLC requests Judgment for $6,965.37 plus court costs and statutory attorney fees pursuant to
MCL 600.2441

I declare under penalty of contempt of court that to the best of my knowledge, information and
believe that this is good ground to support the contents of this pleading.

Respectfully Submitted,
Local lawyer for Midland
Dated: 12-21-2015 (Official filing with the court was done on 12/29/15)

===================================================

Affidavit:
State of MlCHIGAN

MIDLAND FUNDING LLC,
Plaintiff
vs
FYRESINE
Defendant( s ).
AFFIDAVIT .OF ANGELA MILLER

Angela Miller, whose business address is 16 Mcleland Road Suite 101, St. Cloud, MN
56303, certifies and says:
1. i am an officer for MIDLAND FUNDING LI.C and have access to pertinent records
of this account maintained on behalf of Plaintiff. I am a competent person over eighteen
years of age, and make the statements herein based upon personal knowledge of those
account records maintained on Plaintiff's behalf. Plaintiff is the current owner of, and/or
successor to, the obligation sued upon, and was assigned all the rights, title and interest to
Defendant~ CITIBANK., N.A. account XXXXXXXXXXXX8552 (hereinafter "the account").
I have access to and have reviewed the electronic records pertaining to the account and
am authorized to make this affidavit on Plaintifrs behalf. The electronic records reviewed
consist of data acquired from the seller when Plaintiff purchased the account, together with
records generated in connection with servicing the account since the date the account was
purchased by Plaintiff.
2. The business records show that Dcfendant(s) owed a balance of $6,965.37 as of
2015-12-15.

I certify under penalty of perjury that the foregoing statements are true and correct.
Date: DEC 18 2015 (Since the summons was officially filed on 12/29 with the court, is this affidavit invalid as evidence?)
STATE OF MINNESOTA
COUNTY OF STEARNS
\ Angela Miller

The foregomg instrument was acknowledged before me on by Angela
Miller, an officer of plaintiff, and hereby notarized pursuant to the laws of the State of
Minnesota on behalf of the corporation.

===================================
Bill of sale: (Please look at the dates of sale - how can the date of sale be Nov 13,2014 when the purchase/sale agreement was dated Jan 30, 2014 and the account wasn't even charged off by Citibank until Jul 20, 2014???)
BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AND ASSIGNMENT, dated November 13, 2014, is by Citibank, N.A., 11
national banking a.ssocintion organized under the laws of the United Scates, located at 701 East
60th Street North, Sioux Falls, SD 57117 (the "Bnnk") to Midland Funding LLC, organized
under the laws of the State of Dcloware, with its headquarters/principal place of business at 3 t 11
Camino Del Rio North, Suite 1300, San Diego, CA 9210R ("Buyer").
For value received and subject to the tenns and conditions of the Purchase and Sale Agreement
dated January 30, 2014, between Buyer and the Bank (the "Agreement"), the Banlc does hereby
transf cr, sell, assign, convey, grant, bargain, set over and deliver to Buyer, and to Buyer's
successors and assigns, the Accounts described in Exhibit I and the final electronic file.
With respect to information for the Accounts listed in Asset Schedule, to the best of the Banlc's
knowledge, the Bank represents and warrants to Buyer that (i) the Account infonno.tion
constitutes the Bank's own business records and accurately reflects in all material respects the
infonnation in the Bank's database; {ii) the Account infonnation was kept in the regular course
of business; (iii) the Account infonnation was made at or near the time by, or from infonnation
transmitted by, n person with knowledge of the data entered into end maintained in the Account's
database; and (iv) it is the re!:,rular practke of the Bank's business lo maintain and compile such
data.
Citibank, N.A.
By: Patricia Hall
(Signature)
Title: Fjnancjal Account Manager 

==============================

Excel sheet:
Field Field Data
-----
ACCOUNT NUMBER 8552
ACCOUNT NUMBER CROSS-REFERENCE NUMBER 0000000000000000
ACCOUNT OPEN DATE 25-Sep-10
CHARGE OFF AMOUNT $6,965.37
CHARGE OFF DATE 20·Jul -14
DEBTOR NAME FIRST: xxxxxx
DEBTOR NAME LAST: xxxxx
DEBTOR RESIDENCE ADDRESS: xxxxxx
DEBTOR RESIDENCE CITY: xxxxxx
DEBTOR RESIDENCE PHONE: xxxxxx
DEBTOR SOCIAL SECURITY NUMBER: xxxxx
DEBTOR STAT~ Ml
DEBTOR ZIP CODE: xxxxxxxx
LAST PAYMENT AMOUNT $181.92
LAST PAYMENT DATE ll·Apr-14
LAST PURCHASE DATE 06-Dec-13
SALE AMOUNT $6,965.37
Data printed from electronic records provided by Citibank, N.A. pursuant to the Bill of Sale/ Assignment of Accounts
transferred on or about 11/13/2014 in connection with the sale of accounts from Citibank, N.A. to Midland Funding, LLC.

Letter I received this week: midland_letter2.pdf
Should I request anything highlighted in yellow from them or just proceed to go through the courts?

Share this post


Link to post
Share on other sites

Oh, also I was served by regular mail (not certified) and it was taped to my front door. There is no proof of service with my signature on it. 

Share this post


Link to post
Share on other sites
21 hours ago, fyresine said:

Oh, also I was served by regular mail (not certified) and it was taped to my front door. There is no proof of service with my signature on it. 

@fyresine

IANAL. My 2 cents: I don't see much benefit in focusing your efforts on arguing improper service. You received the complaint by mail and taped to your door.

Rule 2.105 Process; Manner of Service http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/subchapters/Subchapter%202.100%20Commencement%20of%20Action;%20Service%20of%20Process;%20Pleadings;%20Motions.pdf

(J) Jurisdiction; Range of Service; Effect of Improper Service.

(1) Provisions for service of process contained in these rules are intended to satisfy the due process requirement that a defendant be informed of an action by the best means available under the circumstances. These rules are not intended to limit or expand the jurisdiction given the Michigan courts over a defendant. The jurisdiction of a court over a defendant is governed by the United States Constitution and the constitution and laws of the State of Michigan. See MCL 600.701 et seq. (2) There is no territorial limitation on the range of process issued by a Michigan court.

(3) An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.

 I would urge you to get a copy of a Sears/Citibank NA card agreement from anytime the alleged account was open to see if you can arbitrate this claim.  If you need to get this out of small claims court to do so, research that. I gave you some links.  The amount of this suit is such that I would be prepared for some pushback from plaintiff's attorney. Know the court rules and the applicable laws. This is the best way for you to prevail.  Research postings by @fisthardcheese   and this Michigan thread

 

Share this post


Link to post
Share on other sites

I was just curious about the proof of service, from what I'm reading further that really isn't going to do anything to bring that up. 

I was going to file my answer, an affidavit, challenge their affidavit and claim they have failed to state a claim in my response.

I need to read up more on arbitration, I'm assuming if I go that route I would need to move to arbitration BEFORE filing an answer? 

Share this post


Link to post
Share on other sites
On 3/17/2016 at 10:52 AM, fyresine said:

Hello, I would like to thank everyone for their time and responses so far. Here is the complaint, affidavit and bill of sale with the Excel sheet they attached as "proof".  I will also be attaching the "We are required to provide some additional information" letter I received this week. 

VERIFIED COMPLAINT
ACCOUNT STATED Does this appear on the complaint?

NOW COMES the Plaintiff, Midland Funding LLC, by its attorney, and for its Complaint against the above
named Defendant, FYRESINE, states to this Honorable Court as follows:
I. The Defendant resides within this court's venue and venue 1s proper in this court.

2. The amount in controversy is within this court's jurisdiction.

3. Plaintiff, Midland Funding LLC owns portfolios of consumer receivables, which it attempts to collect. When
working with individual consumers, Plaintiff, Midland Funding LLC and its affiliates generally attempt to contact
consumers like Defendant through several means, all in an effort to establish contact and to resolve the underlying
obligation. In doing so, Midland Funding LLC attempts to assess each consumer's willingness to pay, through
phone calls, letters or other means. Midland Funding LLC attempts to exclude consumers from its collection
efforts, where Midland Funding LLC believes those consumers are facing extenuating circumstances or hardships
that would prevent them from making any payments.

4. When Midland Funding LLC contacts consumers, it strives to treat consumers with respect, compassion and
integrity. Midland Funding LLC works with consumers in an effort to find mutually·beneficial solutions, often
offering discounts, hardship plans, and payment options. Midland Funding LLC's efforts are aimed at working with
consomen, to repay their obligations and to attain financial recovery. Midland Funding LLC strives to engage in
dialogue that is honorable and constructive, and to play a positive role in consumers' lives.

5. Despite Midland Funding LLC's efforts to reach consumers and resolve the consumer's obligations, only a
percentage of consumers choose to engage with Midland Funding LLC. Those who do are often offered discounts
or payment plans that are intended to suit their needs. Midland Funding LLC would prefer to work with consumers
to establish voluntary payment arr.i.ngements resulting in the resolution of any underlying obligations. However, the
majority of Midland Funding LLC's consumers ignore calls or letters, and some simply refuse:! to repay their
obligations despite an apparent ability to do so. When this happens, Midland Funding LLC must decide then
whether to pursue collection through legal channels, including litigation like the present action against Defendant.
Although the Account is now in litigation, Plaintiff remains willing to explore a mutually·beneticial solution through
voluntary payment arrangements, if possible. I have never seen paragraphs 3-5 in a Midland complaint before.  Pleading rules [MCR 2.111(B)(1)] require a "statement of the facts, without repetition, on which the pleader relies in stating the cause of action, with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend."

6. The Defendant had an agreement for a/an CREDIT CARD, originally with CITIBANK, N.A..

7. The Defendant has defaulted in payments on the above mentioned account, said account being shown in the
attached Affidavit and Statement of Account.

8. Midland Funding LLC purchased the account shown in the attached Affidavit and Statement of Account and was
assigned all rights to the account in the normal course of business.

9. Midland Funding LLC has notified the Defendant of the above mentioned account and the Defendant has failed to
pay for same. 
10. There is presently due and owing over and above all legal counter-claims the sum of $6,965.37. See attached
Affidavit and Statement of Account.

11. Midland Funding LLC requests Judgment for $6,965.37 plus court costs and statutory attorney fees pursuant to
MCL 600.2441

I declare under penalty of contempt of court that to the best of my knowledge, information and
believe that this is good ground to support the contents of this pleading.

Respectfully Submitted,
Local lawyer for Midland
Dated: 12-21-2015 (Official filing with the court was done on 12/29/15)

===================================================

Affidavit:
State of MlCHIGAN

MIDLAND FUNDING LLC,
Plaintiff
vs
FYRESINE
Defendant( s ).
AFFIDAVIT .OF ANGELA MILLER

Angela Miller, whose business address is 16 Mcleland Road Suite 101, St. Cloud, MN
56303, certifies and says:
1. i am an officer for MIDLAND FUNDING LI.C and have access to pertinent records
of this account maintained on behalf of Plaintiff. I am a competent person over eighteen
years of age, and make the statements herein based upon personal knowledge of those
account records maintained on Plaintiff's behalf. Plaintiff is the current owner of, and/or
successor to, the obligation sued upon, and was assigned all the rights, title and interest to
Defendant~ CITIBANK., N.A. account XXXXXXXXXXXX8552 (hereinafter "the account").
I have access to and have reviewed the electronic records pertaining to the account and
am authorized to make this affidavit on Plaintifrs behalf. The electronic records reviewed
consist of data acquired from the seller when Plaintiff purchased the account, together with
records generated in connection with servicing the account since the date the account was
purchased by Plaintiff.
2. The business records show that Dcfendant(s) owed a balance of $6,965.37 as of
2015-12-15.

I certify under penalty of perjury that the foregoing statements are true and correct.
Date: DEC 18 2015 (Since the summons was officially filed on 12/29 with the court, is this affidavit invalid as evidence?)  An affidavit is valid if it is: “(1) a written or printed declaration or statement of facts, (2) voluntarily made, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Sherry v East
Suburban Football League
, 292 Mich App 23, 31 (2011). An affidavit lacking notarization is invalid, and a trial court may refuse to consider
it sua sponte or on motion by a party. Sherry, supra at 31.
 http://courts.mi.gov/education/mji/Publications/Documents/Circuit-Court-Civil.pdf
STATE OF MINNESOTA
COUNTY OF STEARNS
\ Angela Miller

The foregomg instrument was acknowledged before me on by Angela
Miller, an officer of plaintiff, and hereby notarized pursuant to the laws of the State of
Minnesota on behalf of the corporation.

===================================
Bill of sale: (Please look at the dates of sale - how can the date of sale be Nov 13,2014 when the purchase/sale agreement was dated Jan 30, 2014 and the account wasn't even charged off by Citibank until Jul 20, 2014???)
BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AND ASSIGNMENT, dated November 13, 2014, is by Citibank, N.A., 11
national banking a.ssocintion organized under the laws of the United Scates, located at 701 East
60th Street North, Sioux Falls, SD 57117 (the "Bnnk") to Midland Funding LLC, organized
under the laws of the State of Dcloware, with its headquarters/principal place of business at 3 t 11
Camino Del Rio North, Suite 1300, San Diego, CA 9210R ("Buyer").
For value received and subject to the tenns and conditions of the Purchase and Sale Agreement
dated January 30, 2014, between Buyer and the Bank (the "Agreement"), the Banlc does hereby
transf cr, sell, assign, convey, grant, bargain, set over and deliver to Buyer, and to Buyer's
successors and assigns, the Accounts described in Exhibit I and the final electronic file.
With respect to information for the Accounts listed in Asset Schedule, to the best of the Banlc's
knowledge, the Bank represents and warrants to Buyer that (i) the Account infonno.tion
constitutes the Bank's own business records and accurately reflects in all material respects the
infonnation in the Bank's database; {ii) the Account infonnation was kept in the regular course
of business; (iii) the Account infonnation was made at or near the time by, or from infonnation
transmitted by, n person with knowledge of the data entered into end maintained in the Account's
database; and (iv) it is the re!:,rular practke of the Bank's business lo maintain and compile such
data.
Citibank, N.A.
By: Patricia Hall
(Signature)
Title: Fjnancjal Account Manager 

==============================

Excel sheet:
Field Field Data
-----
ACCOUNT NUMBER 8552
ACCOUNT NUMBER CROSS-REFERENCE NUMBER 0000000000000000
ACCOUNT OPEN DATE 25-Sep-10
CHARGE OFF AMOUNT $6,965.37
CHARGE OFF DATE 20·Jul -14
DEBTOR NAME FIRST: xxxxxx
DEBTOR NAME LAST: xxxxx
DEBTOR RESIDENCE ADDRESS: xxxxxx
DEBTOR RESIDENCE CITY: xxxxxx
DEBTOR RESIDENCE PHONE: xxxxxx
DEBTOR SOCIAL SECURITY NUMBER: xxxxx
DEBTOR STAT~ Ml
DEBTOR ZIP CODE: xxxxxxxx
LAST PAYMENT AMOUNT $181.92
LAST PAYMENT DATE ll·Apr-14
LAST PURCHASE DATE 06-Dec-13
SALE AMOUNT $6,965.37
Data printed from electronic records provided by Citibank, N.A. pursuant to the Bill of Sale/ Assignment of Accounts
transferred on or about 11/13/2014 in connection with the sale of accounts from Citibank, N.A. to Midland Funding, LLC.

Letter I received this week: midland_letter2.pdf
Should I request anything highlighted in yellow from them or just proceed to go through the courts?

 

Share this post


Link to post
Share on other sites
4 minutes ago, fyresine said:

I was just curious about the proof of service, from what I'm reading further that really isn't going to do anything to bring that up. 

I was going to file my answer, an affidavit, challenge their affidavit and claim they have failed to state a claim in my response.

I need to read up more on arbitration, I'm assuming if I go that route I would need to move to arbitration BEFORE filing an answer? 

@fyresine

IANAL. Following the instructions of the alleged account agreement arbitration clause on how to elect and intitate arbitration is advised. You could prepare those documents and then contact plaintiff's attorney by letter. If plaintiff refuses to dismiss, then you could file a motion to dismiss and compel arbitrations in lieu of answer. If your motion is denied, then you would file your answer.  You must file either the motion or an answer by the deadline!

Share this post


Link to post
Share on other sites

@fyresine

Some thoughts (IANAL):

1.) Are you certain this was filed in small claims? 

Small claims in which the amount claimed does not exceed the following: 

• Beginning September 1, 2012, $5,000.00.
Beginning January 1, 2015, $5,500.00.
• Beginning January 1, 2018, $6,000.00. 
• Beginning January 21, 2021, $6,500.00. 
• Beginning January 1, 2024, $7,000.00. MCL 600.8401 http://legislature.mi.gov/doc.aspx?mcl-600-8401

2.) Have you found a copy of a Sears Citibank NA agreement with an arbitration clause with survivability?  If you plan to file an Answer, rather than a MTD to compel arbitration in lieu of an Answer, you must include arbitration as an Affirmative Defense, so as not to waive your right.

'Although not labeled as such, defendant’s motion seeking dismissal of the case on the basis of an arbitration agreement between the parties fell within the parameters of MCR 2.116(C)(7). We review de novo a motion brought and decided pursuant to MCR 2.116(C)(7). Watts v Polaczyk, 242 Mich App 600, 603; 619 NW2d 714 (2000). Pursuant to MCR 2.111(F)(3), “[a] party waives an affirmative defense unless the defense is set forth in its first responsive pleading.” Kelly-Nevils v Detroit Receiving Hospital, 207 Mich App 410, 420; 526 NW2d 15 (1994). MCR 2.111(F)(3)(a) sets forth numerous affirmative defenses among which are “the existence of an agreement to arbitrate.” Thus, because the existence of an arbitration agreement is an affirmative defense, defendant was required to assert the defense in its first responsive pleading, whether that be by the filing of affirmative defenses or a motion for summary disposition under MCR 2.116(C)(7). Campbell v St John Hospital, 434 Mich 608, 616-617; 455 NW2d 695 (1990).'

3.) If you do plan on electing arbitration, and you file an Answer first, you must file your MTD to compel arbitration as soon after as you can. 

4.) If you plan to use the exemplar of a counter-affidavit of denial of an account stated floating around from justiceforall3's thread or bmc100, please do  not deny that you had an account with plaintiff's assignor /original creditor--unless that is true  This was "technically" true for justiceforall3.  Another poster copied this affidavit, then motioned to compel arbitration. The judge denied the motion, ruling defendant could not invoke terms of a contract he claims he never entered into. Language in an affidavit is very important, and is submitted under penalty of perjury. 

It is wise to  post your drafts here on CIC before submitting!

Share this post


Link to post
Share on other sites

Yes, I have found the original card member agreement when I received the card and an updated one for year 2013 which is when the last purchase was made on the card. When I get a chance I will post the arbitration clause.

I'm just confused in what order I should file things... If it I should just go straight for the MTD on the grounds of no proof of claim stated with arbitration or file my answer. And if I do go for arbitration should I contact the lawyer for Midland first before sending it through the courts? 

And yes, the "account stated" is at the top of the complaint, I copied the entire complaint and other documents above.

I'm not positive it was filled in small claims, would there be anything on the paperwork that would state small claims? From everything I can tell it's in district court.

Share this post


Link to post
Share on other sites
2 hours ago, fyresine said:

Yes, I have found the original card member agreement when I received the card and an updated one for year 2013 which is when the last purchase was made on the card. When I get a chance I will post the arbitration clause.  Please do that when you can. Have you had a chance to read the mholler thread above? It has samples of the motion to compel arbitration and the election letter written to plaintiff, plus Midland's response in opposition.

I'm just confused in what order I should file things... If it I should just go straight for the MTD on the grounds of no proof of claim stated with arbitration or file my answer. And if I do go for arbitration should I contact the lawyer for Midland first before sending it through the courts?  IANAL, but it appears that the Complaint allegations, sworn affidavit, bill of sale and field data sheet with your personal information would likely be enough to get a default judgment awarded by the court if you failed to answer.  For the amount of this debt, they may refile if you were to prevail on a motion to dismiss without prejudice.  I don't understand what grounds you have.  As I discussed above, you may file an Answer, listing the existence of an agreement to arbitrate as an Affirmative Defense. You would need to do this correctly. A motion to compel arbitration would then need to be filed soon after, unless the plaintiff would stipulate to dismiss. A motion to compel in lieu of answer is less work for you, but you have to understand what is required in order to prevail.  

And yes, the "account stated" is at the top of the complaint, I copied the entire complaint and other documents above. If you plan on filing an Answer, you would be wise to comply with MCL 600.2145 by submitting your own properly compliant affidavit of denial.  Posting your draft first before submission is advisable. Please take care not to include so many identifiable details, as this is a public forum.  

I'm not positive it was filled in small claims, would there be anything on the paperwork that would state small claims? From everything I can tell it's in district court.  What does the caption heading say? Plaintiff is limited to an award of $5500 in small claims. You are being sued for nearly $7000. Call the court clerk if you aren't sure. 

@fyresine

IANAL.  Several CIC members have had success getting their cases dismissed by motioning to compel arbitration; some have not. Junk debt buyers like Midland do not seem to follow defendants into arbitration, and dismiss. There is no guarantee.  I can tell you from experience, fighting in court pro se with a lot of money at stake is extremely difficult, time-consuming and highly stressful. If you do not quickly discover you have an aptitude for understanding court rules--especially evidence rules, statutes, legal strategy, your opponent, and your judge, you will have a very heavy lift.  Have you consulted with an experienced consumer attorney?  http://www.consumeradvocates.org/find-an-attorney  It may be worth your while to get an opinion and/or explore options.

Share this post


Link to post
Share on other sites

I have checked with the courthouse and since I received the summons/complaint taped to my door on 3/14 I have until 4/11 to file my response. It is NOT in small claims court since they are using an attorney and the amount I am being sued for. 

I have attached the original card member agreement I received when Citibank sent me the c.c. I also have 2 more copies from 2013 but it doesn't look like any of the wording has changed regarding arbitration. I have attached the complete clause to this post. 

 

original_cardagreement.pdf

Share this post


Link to post
Share on other sites
1 hour ago, fyresine said:

I have checked with the courthouse and since I received the summons/complaint taped to my door on 3/14 I have until 4/11 to file my response. It is NOT in small claims court since they are using an attorney and the amount I am being sued for. 

I have attached the original card member agreement I received when Citibank sent me the c.c. I also have 2 more copies from 2013 but it doesn't look like any of the wording has changed regarding arbitration. I have attached the complete clause to this post. 

 

original_cardagreement.pdf

@fyresine

I thought you received the summons and Complaint on 3/8. Was this by certified or registered mail? IANAL. Within 21 days is time according to MCR 2.108 to file an Answer or MTC Arb in lieu of an Answer.  http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/CHAPTER%202.%20CIVIL%20PROCEDURE%20(entire%20chapter).pdf

Rule 2.108 Time (A) Time for Service and Filing of Pleadings. (1) A defendant must serve and file an answer or take other action permitted by law or these rules within 21 days after being served with the summons and a copy of the complaint in Michigan in the manner provided in MCR 2.105(A)(1).

@fisthardcheese @shellieh98

OP's Citibank agreement arbitration clause lists AAA or JAMS.  Do either of you have any advice on which forum OP should elect--if OP decides to MTC arbitration with Midland? Thanks.

Share this post


Link to post
Share on other sites
3 minutes ago, Brotherskeeper said:

@fisthardcheese @shellieh98

OP's Citibank agreement arbitration clause lists AAA or JAMS.  Do either of you have any advice on which forum OP should elect--if OP decides to MTC arbitration with Midland? Thanks.

It doesn't matter.  AAA refuses to arbitrate with Midland and will quickly close the file.  With a granted MTC in place, this puts Midland stuck between a rock and hard place.  Midland will also not participate with JAMS which has a bit higher cost structure than AAA.  Either one are just as effective with Midland.

  • Like 1

Share this post


Link to post
Share on other sites
6 minutes ago, Brotherskeeper said:

@fyresine

I thought you received the summons and Complaint on 3/8. Was this by certified or registered mail? IANAL. Within 21 days is time according to MCR 2.108 to file an Answer or MTC Arb in lieu of an Answer.  http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/CHAPTER%202.%20CIVIL%20PROCEDURE%20(entire%20chapter).pdf

Rule 2.108 Time (A) Time for Service and Filing of Pleadings. (1) A defendant must serve and file an answer or take other action permitted by law or these rules within 21 days after being served with the summons and a copy of the complaint in Michigan in the manner provided in MCR 2.105(A)(1).

@fisthardcheese @shellieh98

OP's Citibank agreement arbitration clause lists AAA or JAMS.  Do either of you have any advice on which forum OP should elect--if OP decides to MTC arbitration with Midland? Thanks.

The original summons/complaint was received by USPS (NOT CERTIFIED mail) on 3/8 on my doorstep as I have no mailbox currently. The following Monday the complaint was taped to my front door. So what do I use?? I never signed a proof of service or anything and it wasn't sent certified mail. 

Share this post


Link to post
Share on other sites

Something that struck me as odd, is that the person who did the affidavit in this case, was the notary public on my affidavit. Coincidence?  Multi-tasking?   :) 

Share this post


Link to post
Share on other sites
30 minutes ago, fyresine said:

The original summons/complaint was received by USPS (NOT CERTIFIED mail) on 3/8 on my doorstep as I have no mailbox currently. The following Monday the complaint was taped to my front door. So what do I use?? I never signed a proof of service or anything and it wasn't sent certified mail. 

@fyresine

IANAL. I honestly don't know which date you should use. You don't want to run the risk of a default judgment for failure to file on time. "Within 21 days" is the important date. As I read this, IANAL, regular mail does not comply with MCR 2.105(A)(2), and no possible proof of acknowledgment can be made when a defendent doesn't sign the nonexistent receipt. IANAL, but you may be able to indicate by affidavit you received the summons and complaint taped to your front door on 3/14. 

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

Rule 2.105 Process; Manner of Service

(A) Individuals. Process may be served on a resident or nonresident individual by

     (1) delivering a summons and a copy of the complaint to the defendant personally; or

     (2) sending a summons and a copy of the complaint by registered or certified mail, return receipt requested, and delivery restricted to the addressee. Service is made when the defendant acknowledges receipt of the mail. A copy of the return receipt signed by the defendant must be attached to proof showing service under subrule (A)(2).

(J) Jurisdiction; Range of Service; Effect of Improper Service.

     (3) An action shall not be dismissed for improper service of process unless the service failed to inform the defendant of the action within the time provided in these rules for service.

Share this post


Link to post
Share on other sites
16 hours ago, mooie said:

Something that struck me as odd, is that the person who did the affidavit in this case, was the notary public on my affidavit. Coincidence?  Multi-tasking?   :) 

Very common.  Lawsuit Mills like Midland hire their own notary.  They operate like a factory and crank out thousands of lawsuits a week.  Having the notary in their office makes this easier and cheaper for them to drop a stack on her desk each day to stamp.

Share this post


Link to post
Share on other sites

No, I meant the one who wrote the affidavit for the OP, was the notary on my affidavit. Maybe all people hired by Midland are 'legal specialists' AND notary publics.  Streamlines the work, eh?  :) 

Share this post


Link to post
Share on other sites
29 minutes ago, mooie said:

No, I meant the one who wrote the affidavit for the OP, was the notary on my affidavit. Maybe all people hired by Midland are 'legal specialists' AND notary publics.  Streamlines the work, eh?  :) 

I had two cases with Midland, the two affiants were notaries for the other on the different cases.  I was comparing signatures to be sure they weren't different..... I wasn't fortunate to find they were.  But I won anyway.

 

  • Like 1

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.