Joker

NEED HELP IN MICHIGAN! Cavalry SPV I

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1. Who is the named plaintiff in the suit? Cavalry SPV I, LLC

2. What is the name of the law firm handling the suit? Roosen, Varchetti & Oliver, PLLC

3. How much are you being sued for? $2,400

4. Who is the original creditor? Citibank, N.A.

5. How do you know you are being sued? Served papers

6. How were you served? 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? They contacted me by phone several times, i would just tell them i was unable to talk at the time. I believe I received mail from them also. 

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

10. When is the last time you paid on this account?early 2014 i believe. I tried to find OC on my credit report but it is no longer there. Though while looking i noticed that Cavalry reported tat my balance went down 100 bucks last month... strange 

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

12. What is the status of your case? Suit served? Motions filed? Summons and Complaint served, need to file response this week.

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? Did you receive an interrogatory (questionnaire) regarding the lawsuit? only have a few days left

16. What evidence did they send with the summons? A very vague bill of sale from Citibank to Cavalry , no acct specified, an Asset Schedule that shows three bulk lots with their sale id and cut off date of 9/20/16., and then the final statement from CITI showing the full balance due which is same amount they are after.  There is not an affidavit attached. 

 1) Defendant entered into a contract with plaintiff or plaintiffs assignor, the acct #xxxx and pursuant to MCR2.113(F)(1)(b)Plaintiffs claim is based on on a written instrument which is not attached as it is in the possession of the adverse party
      2) defendant defaulted under the terms and conditions of the contract
      3) Plaintiff and/or its assignor completed the performance under the terms and conditions of the contract
      4)That Statements were sent to the defendant  detailing the amount owed on the account and defendant has failed to object to said statements.
     5) The acct has been stated and/or is open between the parties
     6) As a result of defendants default plaintiff claims breach of contract, open account,account stated, and/or unjust enrichment
      7)The current claim  amount due and owing by defendant to plaintiff is $2,4xx plus interest,  cost and attorney fees.

I have done a ton of reading on here, the  Michigan cases in particular.  I have a decent idea of my options moving forward. I am trying to decide which way should proceed.   Im really leaning toward arbitration and filing MTC in Lieu of answer , but havent been able to find the cardmember agreement from when the account was still active.  Im still having trouble with filing an answer if i proceed that way.  

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@Joker

You're on the right track. You'll need to work fast to get the arbitration clause from the governing cardholder agreement. Did you try the Citibank site or the Consumer Financial Protection Bureau database?

https://www.citicards.com/cards/acq/cma.do?screenId=13461

https://www.consumerfinance.gov/credit-cards/agreements/issuer/citibank/

 

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@Joker Did you read this thread?

I am not a lawyer (IANAL), but according to the Michigan Court Rules (MCR), you may amend your answer without court permission once within 14 days. This may take some of the pressure off to get it absolutely right by the deadline to respond. 

Rule 2.118 Amended and Supplemental Pleadings http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/HTML/CRs/Ch 2/Court Rules Book Ch 2-Responsive HTML5/index.html#t=Court_Rules_Book_Ch_2%2FCourt_Rules_Chapter_2%2FCourt_Rules_Chapter_2.htm
(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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@Joker This thread has some info you may find useful:

IANAL. Under MCR rules, you must file a brief with a motion. However, I found this case cite that allows the MTC arb to be filed without an attached brief with the proper citations to legal authority in your motion to compel in lieu of an answer.

'Good news. I stumbled across this case cite in the Judge's Civil Proceedings Benchbook.  (IANAL) As long as a motion to compel arb contains proper citations, no brief is necessary.  

"However, a trial court need not deny a motion if it is filed without a brief, if the motion itself contains citations to legal authority supporting its proposition. Woods v SLB Prop Mgmt, LLC, 277 Mich App 622, 625-626, 750 NW2d 228 (2008)."'

http://mjieducation.mi.gov/publications/benchbooks/civ-pro

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@Joker

Link in the post above is no longer good. Here's the link to the Judge's Benchbook--an excellent resource:

https://mjieducation.mi.gov/training/CCBBcivilResponsiveHTML5/index.html#t=CCBBcivil%2FCh_3_Pretrial%2FChapter_3_Pretrial_Procedures-.htm

3.1Motions

A.Form1

Unless a motion is made during a hearing or trial, it must be in writing, state with particularity the grounds and authority on which it is based, state the relief or order sought, and be signed by the attorney or party as set out 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).

practice_note.jpg
Committee Tip

Note that only an attorney or party may sign a motion. MCR 2.114(C); MCR 2.119(A)(1). Thus, motions should not be submitted by probation officers or others who are not attorneys of record or parties in a case.

 
practice_note.jpg

“A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based, and must comply with the provisions of MCR 7.215(C)[2] regarding citation of unpublished Court of Appeals opinions.” MCR 2.119(A)(2). However, a trial court need not deny a motion if it is filed without a brief, if the motion itself contains citations to legal authority supporting its proposition. Woods v SLB Prop Mgmt, LLC, 277 Mich App 622, 625-626 (2008).

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I'm grateful for the responses. It has been a rough couple months way too much going on. I just filed a basic answer denying claims. Then had my pretrial. Discovery was ordered, I received it a few weeks ago and now have the original card member agreement. Just received paperwork yesterday I guess they filed a MSD.  I obviously need to stop putting this off. Anything with my local courts just beyond stresses me out due to a past court experience where I was a victim of a violent crime and did not receive justice. I shut down and put things off. Which is why I was intending on Arbitration, though im not sure if it is too late. I also received a letter from citi bank a few months ago stating that my original balance received a $100 credit, something to do with identity monitoring I had. And that the information would be sent to the current assignee . My credit report reflects the balance change as well.  The suit is still being pursued for the full amount. Does that make a difference at all ? 

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@Joker

Important: did you submit an affidavit denying their account stated claim with your answer? Did you send out discovery requests to plaintiff? Did you reply to their discovery requests? If not, when is the deadline to respond? If their request contains requests for admissions, you can't miss the deadline to respond, or they are deemed admitted. If you've engaged in the discovery process, it may be too late to elect arb. 

Post their motion for summary judgment minus personal info. Deadlines are critical to you now. If you miss them, you will end up with a judgment against you. When is the deadline to respond to the MSD?   @bmc100 is an excellent resource for fighting in court.

I am not a lawyer, but I would think that differences in the alleged amount owed to a plaintiff would perhaps be a dispute of a material fact that may defeat a motion--if argued persuasively. Admissible proof of standing (JDB bought your specific account in its purchased pool of accounts) for a JDB is usually the hill they die on. 

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I did forget to include the affidavit. I had planned on trying to amend my answer and including it then. I know i messed up not doing so. I haven't gotten a MSJ yet. I haven't responded to discovery yet.  I received it a few weeks ago, not sure how long I have to respond. According to court web site the MSD was submitted to them  on Monday.  If they are still requesting the 2,400 in court, but current balance is 2,300 due to that credit.  Is that an fdcpa violation? 

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According to the arbitration clause. At any time you or we may and ask an appropriate Court to compel arbitration of claims, or to stay the litigation of claims pending arbitration , even if such claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Even if a party fails to exercise these rights at any particular time or in connection with any particular claims, that party can still require arbitration at a later time or in connection with any other claims

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Did they supply to you at all an affidavit from someone at Cavalry or from the OC?

If not, you can still submit an affidavit.

It's too late to amend your answer. If they already filed they MSJ, then you need to get moving. Without knowing everything or if you sent your own discovery, there is nothing much else anyone can do to help you.

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@Joker

You should have instructions on the discovery requests from plaintiff, but your responses are due back within 28 days from being served with them. Admissions are deemed admitted if you don't respond in a timely manner.  Please check MCR 2.309, 2.310 , 2.312.  If you got the requests a few weeks ago, you have little time. 

You may be able to argue that you haven't engaged in court proceedings to motion for arb, but I would anticipate plaintiff would mount opposition. Not saying it couldn't work, but you'd have to mount a better argument than the motion to compel arb template . You may be able to elect arb, file as the contract requires, answer all discovery with your election of arb to have an arbitrator decide discovery issues per forum rules, and file a motion to compel. If you don't make all of this a priority, I don't think this will have a happy ending for you. 

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Msj is different than msd correct ? I do not believe a msj was filed only a MSD. The judge originally gave 60 days for discovery. I'm still in that window,  I thought i just had to meet that deadline. But i probably thought wrong because the msd states I failed to respond to them .... they sent a few statement in discovery.  Though it don't show any purchases,  just billing for credit monitor, it shows a payment made in statement but no detail on payment method or that it was me that made any payments.  Yeah I'm pretty sure I screwed all this up ,and am facing a poor outcome. 

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Yeah after looking over things it looks like I failed to answer discovery in timely manner. I'm not sure if that leaves me with any options here. 

 

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1 hour ago, Joker said:

Msj is different than msd correct ? I do not believe a msj was filed only a MSD. The judge originally gave 60 days for discovery. I'm still in that window,  I thought i just had to meet that deadline. But i probably thought wrong because the msd states I failed to respond to them .... they sent a few statement in discovery.  Though it don't show any purchases,  just billing for credit monitor, it shows a payment made in statement but no detail on payment method or that it was me that made any payments.  Yeah I'm pretty sure I screwed all this up ,and am facing a poor outcome. 

MSJ=Motion for Summary Judgment. MSD=Motion for Summary Disposition. Same thing. In Michigan it's MSD. It's the motion that can get the case dismissed before trial if it can be shown there are no material facts in dispute. 

Please answer accurately:

1.) When was your 28 day deadline to respond to plaintiff's discovery requests? By what date?

2.) Was a request for admissions in the discovery?

3.)  When is the deadline for you to file an opposition to the motion for summary disposition? If you don't know, what date was plaintiff's MSD filed?

Without answers to the above questions, we can't help you. 

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Oh ok thanks for the clarification. 

1. It appears that I had till the first week of Sept to answer discovery . According to court website they submitted discovery on 8/7/17

2. Yes they had a request for admissions in discovery. 

3. Looks like they submitted MSD on 9/5/17. 

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2 hours ago, Joker said:

Oh ok thanks for the clarification. 

1. It appears that I had till the first week of Sept to answer discovery . According to court website they submitted discovery on 8/7/17

2. Yes they had a request for admissions in discovery. 

3. Looks like they submitted MSD on 9/5/17. 

@Joker

To be precise, service to a party is when it is dropped in the mailbox, if mailed. There should be a proof of service form filed with the court. 

MCR 2.107(C)(3) Service and Filing of Pleadings and Other Papers

(3) Mailing. Mailing a copy under this rule means enclosing it in a sealed envelope with first class postage fully prepaid, addressed to the person to be served, and depositing the envelope and its contents in the United States mail. Service by mail is complete at the time of mailing.

 

 MCR  2.116(G)(1)(a)(ii)

(G) Affidavits; Hearing.

(1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule.

(a) Unless a different period is set by the court,

(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and

(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.

 

1.) You must file with court and mail to plaintiff  a response to the MSD at least 7 days before the hearing date. 

2.) Please post the requests for admissions to see what you've admitted to. I honestly don't know if it's too late to submit discovery answers ASAP or a motion to compel arb. Ignorance of the rules (thinking you had 60 days rather than within 28 days) may not fly with the judge.

@bmc100--any thoughts on if/how this can be salvaged??

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We only know a small piece of the bigger picture. We would first need his answer with any and all alleged evidence the plaintiff submitted with their complaint and the MSJ. Until then, there is no way any of use can help this poster.

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On 9/14/2017 at 2:33 PM, Joker said:

Discovery was ordered, I received it a few weeks ago and now have the original card member agreement.

@Joker

Did you receive the cardmember agreement from the plaintiff? 

Did you list any affirmative defenses in your answer? If so, which ones? Arbitration?

@fisthardcheese OP answered complaint, failed to file MTC, received discovery requests from plaintiff--including admissions--then missed deadline (early Sept.) to respond, now has received MSJ (MSD in Mich.). OP is wondering if it's too late to attempt MTC arb. (I have seen MI case law where late MTC has been allowed, but don't know about after missing admissions deadline. Might not matter if arb is still a possibility.)  Here's the arb clause.   Any advice?  

On 9/14/2017 at 4:27 PM, Joker said:

According to the arbitration clause. At any time you or we may and ask an appropriate Court to compel arbitration of claims, or to stay the litigation of claims pending arbitration , even if such claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Even if a party fails to exercise these rights at any particular time or in connection with any particular claims, that party can still require arbitration at a later time or in connection with any other claims

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Good resource law article on arbitration in Michigan:

https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwjEv77ukarWAhVB3mMKHZS9A80QFggqMAE&url=http%3A%2F%2Fwww.dickinson-wright.com%2F-%2Fmedia%2Ffiles%2Fnews%2F2017%2F09%2Fcompelling-and-staying-arbitration-in-michigan.pdf&usg=AFQjCNEdSPv4-MXzdMGzpIHV_4jZAoh3uw

Waiver

Michigan courts disfavor waiver of the contractual right to arbitrate (see Universal Academy v. Berkshire Dev., Inc., 2017 WL 2664789, at *5 (Mich. App. June 20, 2017); Madison Dist. Pub. Sch. v. Myers, 637 N.W.2d 526, 529 (2001)). A party resisting arbitration based on the other party’s alleged waiver bears a heavy burden of proof and must demonstrate the other party:

  • Knew of its exiting right to arbitrate or compel arbitration.
  • Acted inconsistently with the right to arbitrate.
  • Caused prejudice to the party.(See Madison Dist., 637 N.W.2d at 529 (citing Burns v. Olde Discount Corp., 538 N.W.2d 686 (1995)).)

A party may waive the right to arbitrate either:

  • Explicitly, by affirmatively stating it will not arbitrate (see Nexteer Auto. Corp. v. Mando Am. Corp., 886 N.W.2d 906, 909 (2016), appeal denied, 891 N.W.2d 474 (2017), reconsideration denied, 894 N.W.2d 550 (Mich. 2017)).
  • Implicitly, by engaging in court litigation (see Madison Dist., 637 N.W.2d at 529).The more actively a party participates in litigation, the greater the risk of implicitly waiving the right to arbitrate.

A party may implicitly waive its right to arbitrate by failing to demand or assert the right to arbitration when the party, for example:

  • Files pleadings in court.
  • Engages in litigation discovery.(See Madison Dist., 637 N.W.2d at 529-30, 533.)

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I received contract ( card member agreement ) from the plaintiff in discovery . So are you saying that even though it states "unless in jury trial or after judgement " that I likely missed my opportunity ? 

 

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2 hours ago, Joker said:

I received contract ( card member agreement ) from the plaintiff in discovery . So are you saying that even though it states "unless in jury trial or after judgement " that I likely missed my opportunity ? 

 

We need the context.  What is stated in the entire paragraph?

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