PRA in MI

[framboise]

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

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Weber & Olcese
3. How much are you being sued for?
~$2K
4. Who is the original creditor? (if not the Plaintiff)
Comenity Bank but I think it was something before this

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

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

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

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?
MI

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


11. What is the SOL on the debt?
6 years in Michigan

12. What is the status of your case? Suit served? Motions filed?
Pending

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?
No

15. How long do you have to respond to the suit?
only a few days left

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
multiple attachments

affidavit of sale of accounts by OC (2 of these with what looks to be the same info but 2 different names)

certificate of conformity

another affidavit of sale (same as 1st one) this makes 3 of them.

exhibit A (Bill of Sale)

exhibit A (bill of sale)

a sheet of personal info

2 account statements

an affidavit

 

I'm concerned about all of the attachments

 

 

[framboise]

Jurisdiction

1. Plaintiff's attorneys are debt collectors

2. no other civil action

3. doing business in Norfolk, VA

4. resides in....

5. amount in controversy

Account Stated

6. incorporates 1 thru 5

7. The Plaintiff and Defendant have consented to a sum as the credit balance due from one another on the account

8. Defendant has received periodic billing statements that defendant has made payment(s) towards and/or not objected to

9. Defendant's payments or failure to successfully question the state of the account within a reasonable amount of time constitutes an admission of correctness

10. Defendant has been given all set-offs, credits and allowances on the account and is indebted to Plaintiff ~$2000

11. statement of account attached

 

[Brotherskeeper]

@framboise

You are being sued under an account stated cause of action. Here is the statute that controls. I've highlighted the important parts

600.2145 Open account or account stated; proof, counterclaim.
Sec. 2145.

In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.  (Note:  An affidavit-- for an account stated claim-- that is dated more than 10 days prior is not invalid.)

(I am not a lawyer.)  If you answer this complaint, you will need to include an affidavit of denial with your answer. Many Michigan CIC threads have examples. 

Another strategy to consider is private contractual arbitration to get it out of court. Can you find a copy of the Comenity card agreement in effect from the time period just prior to the alleged default? The Consumer Financial Protection Bureau has required credit card issuers to furnish current agreements and also has an archive of older agreements. Here is the current page for Comenity  http://www.consumerfinance.gov/credit-cards/agreements/issuer/comenity-bank/

[Brotherskeeper]

http://www.creditinfocenter.com/community/search/?&q=michigan&search_and_or=or&sortby=relevancy

[bmc100]

On 8/19/2016 at 6:10 AM, framboise said:

Jurisdiction

1. Plaintiff's attorneys are debt collectors

2. no other civil action

3. doing business in Norfolk, VA

4. resides in....

5. amount in controversy

Account Stated

6. incorporates 1 thru 5

7. The Plaintiff and Defendant have consented to a sum as the credit balance due from one another on the account

8. Defendant has received periodic billing statements that defendant has made payment(s) towards and/or not objected to

9. Defendant's payments or failure to successfully question the state of the account within a reasonable amount of time constitutes an admission of correctness

10. Defendant has been given all set-offs, credits and allowances on the account and is indebted to Plaintiff ~$2000

11. statement of account attached

was it a PRA statement or an original creditor statement? When was the Affidavit dated in comparison as to when the summons was issued?

 

Quote

When is the affidavit dated? When is the summons dated? are they more than 10 days apart?

 

[bmc100]

21 hours ago, Brotherskeeper said:

@framboise

You are being sued under an account stated cause of action. Here is the statute that controls. I've highlighted the important parts

600.2145 Open account or account stated; proof, counterclaim.
Sec. 2145.

In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.  (Note:  An affidavit-- for an account stated claim-- that is dated more than 10 days prior is not invalid.)

(I am not a lawyer.)  If you answer this complaint, you will need to include an affidavit of denial with your answer. Many Michigan CIC threads have examples. 

Another strategy to consider is private contractual arbitration to get it out of court. Can you find a copy of the Comenity card agreement in effect from the time period just prior to the alleged default? The Consumer Financial Protection Bureau has required credit card issuers to furnish current agreements and also has an archive of older agreements. Here is the current page for Comenity  http://www.consumerfinance.gov/credit-cards/agreements/issuer/comenity-bank/

https://scholar.google.com/scholar_case?case=16651826698014653362&q=account+stated&hl=en&as_sdt=4,23&as_ylo=2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[bmc100]

An account stated action is based on "`an agreement, between parties who have had previous transactions of a monetary character, that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance.'"^[24] Importantly, an open account may be converted into an account stated:^[25]

The conversion of an open account into an account stated, is an operation by which the parties assent to a sum as the correct balance due from one to the other; and whether this operation has been performed or not, in any instance, must depend upon the facts. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account. The parties may still impeach it for fraud or mistake.[^[26]]

In the past these claims have been conflated or treated inconsistently by the Legislature and Michigan courts.^[27] For example, the burden-shifting statute (now MCL 600.2145) has expressly included open account claims and claims on an account stated since as far back as the 1870s, but has never expressly included claims on mutual and open accounts.^[28] Furthermore, the accrual of mutual and open account claims is governed by MCL 600.5831, while no specific statutory provision exists for the accrual of either open account claims or claims on an account stated.^[29]               

^{Please reference the link I posted .}

 

[framboise]

1 hour ago, bmc100 said:

was it a PRA statement or an original creditor statement? When was the Affidavit dated in comparison as to when the summons was issued?

 

 

OC statement

The affidavit from the custodian of records was dated about a month before the summons

[bmc100]

9 hours ago, framboise said:

OC statement

The affidavit from the custodian of records was dated about a month before the summons

Then they are SOL. In your answer, state for allegation 7  that under MCL 600.2145 the affidavit is not dated within 10 days of the summon and the Plaintiff cannot establish a Prima Facie case.

[Brotherskeeper]

@bmc100

Great to have you back! FYI--many of the recent posters from Michigan have been very frightened of court and have had trouble understanding what/how to proceed. The arb strategy has been successful in obtaining an eventual dismissal in recent cases, without having to do much beyond filing the basic form in the arb forum, if that. The CIC motion to compel template modified slightly for state cp rules has been an easier way for timid posters to go. All of the other Michigan members have sailed off, so we haven't had an informed, experienced guy like you to advise and guide. 

[framboise]

16 hours ago, bmc100 said:

Then they are SOL. In your answer, state for allegation 7  that under MCL 600.2145 the affidavit is not dated within 10 days of the summon and the Plaintiff cannot establish a Prima Facie case.

thanks for giving me hope

 

I need to get my answer in tomorrow

[framboise]

On ‎8‎/‎20‎/‎2016 at 8:27 AM, bmc100 said:

https://scholar.google.com/scholar_case?case=16651826698014653362&q=account+stated&hl=en&as_sdt=4,23&as_ylo=2012

I'm going to have to read that all again to try to make sense of it

[bmc100]

Did you ever receive statements from PRA?

1. The Defendant admits this allegation as true.

2. The Defendant admits this allegation as true.

3. The Defendant admits this allegation as true.

4. The Defendant admits this allegation as true. - only if you reside where it is stated you reside.

5. The Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial.

6. The Defendant restates allegations 1-5.

7. The Defendant denies this allegation in it's entirety. The Plaintiff failed to adhere to MCL 600.2145 for the affidavit is dated a month prior this issuance of the summons. Therefore the Plaintiff fails to establish a Prima Facie case.

8. The Defendant denies this allegation in it's entirety. The Plaintiff in this case has never sent monthly statements to the Defendant in this case.

9. The Defendant denies this allegation in it's entirety. Under no law is an open account or account stated claim deemed valid if the Defendant never questioned the correctness of the alleged account.

10. The Defendant denies this allegation in it's entirety. The Plaintiff proven through a series of transactions shown on a history of account statements how they came to the sum they claim is a sum certain.

Affirmative Defenses

1. The Plaintiff failed to state a claim where relief can be granted.

2. The Plaintiff does not have standing in this case.

This is your answer. Make sure you type of proof of service. Copy the header from the complaint.

[framboise]

I really don't know about the statements. The past year has been a blur (major surgery and recovery).

I don't recall opening any, but then again, mail was the last thing on my mind.

[Brotherskeeper]

@bmc100

Should @framboise also submit a counter affidavit of denial since this is an account stated claim? 

[bmc100]

You are also going to submit a counter -affidavit direct disputing the claims PRA is making. It is line by line denying all the elements of their account stated claim.

[framboise]

1 hour ago, bmc100 said:

You are also going to submit a counter -affidavit direct disputing the claims PRA is making. It is line by line denying all the elements of their account stated claim.

hope this is ok

I am resident....

unaware of account

no knowledge of statement

dispute amount

no transactions

[framboise]

pre trial date has been set

got a letter from them. Not home right now so can't give the highlights of it

[framboise]

highlights of letter

 

lists exhibits - attachments to complaint

 

amount

 

Who they will call as witnesses

 

says possibility of settlement is good...at 20% off

how long for trial and discovery

 

things along that line

[bmc100]

Try something like this:

STATE OF MICHIGAN )

COUNTY OF ))

I, XYZ, Duly sworn, is of legal age and mentally competent, free of penalty and perjury states as follows:

1. I am unaware of the account as stated in the Plaintiff‘s complaint or its assignors (No. ********) for I have never entered into any contract of applied for credit with ____________, the Plaintiff’s assignor.

2. I am not in possession of the terms and conditions that govern the alleged account stated in the Plaintiff’s complaint.

3. I have never made a charge or made payment on the alleged account as stated in the Plaintiff’s complaint.

4. I have never had contact or received any written correspondences from PRA or its attorneys prior to the filing of the complaint.

5.  The amount claimed that is due and

6. I was never notified in writing of the assignment or sale from _________ to ________ or any other assignors in the chain of assignments.

These statements are made on the personal knowledge of the affiant and all statements made are true based upon the information of the Defendant.

[bmc100]

At pre-trial, the judge will set time for discovery. The Plaintiff will ask for 45-60 days. You ask for 30. Do not worry about trial, after discovery or during it, you will have to worry about Summary Judgement.