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Need help with affidavits


simplee
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Hi all! 

I am trying to get editing assistance with my affidavit and my answer to a complaint and summons I received 20 days ago from  PRA, LLC. I have read so many posts on here including @bmc100 's step by step guide to defending JDB lawsuits and finally think I am ready to drop these off at the CH tomorrow (DUE DATE!).  The summons was served in person to my home and only had an affidavit listed as the exhibit A. I have prepared both my affirmative defenses using the MCR 2.113 (F), MCL 600.2145 and MCR 2.201 (B).  I am just really stuck on my affidavit and if whether or not my reasons for denying each allegation (plaintiff has not provided any evidence to support this allegation) are durable and correct. I am inlining both the affidavit and the answer for help. Any feedback would be appreciated. Thank you !!!!!

 

The Affidavit: 

STATE OF MICHIGAN

 47th DISTRICT

COUNTY

DEFENDANT’S COUNTER AFFIDAVIT PURSUANT TO MCLA 600.2145

CASE NO: 

JUDGE: 

Plaintiff’s name, address and telephone

Portfolio Recovery Associates, LLC as successor in interest of SYNCHRONY BANK / SYNCHRONY BANK

120 Corporate Blvd.

Norfolk, VA 23502

(866) 428-8102

v

Defendant’s name, address and telephone

M

Plaintiff’s attorney, bar no., address and telephone

Kevin L. Holst (P66274)

David M. Greenbaum (P64731)

Kirsten L. Pepper (P66208)

120 Corporate Blvd

Norfolk, VA 23502

(866) 428-8102

 

Defendant’s attorney, bar no., address and telephone

         

 

Defendant, In Pro Per, makes this affidavit per MCL 600.2145.

 

1.            I am the Defendant.

2.            If sworn as a witness, I can testify competently to the facts stated here.

3.            The statement of account is untrue or inaccurate because:

_______________________________________________________

I am unaware of an account with plaintiff or plaintiff’s assignor as stated in the plaintiff’s complaint.

I have never received statements from plaintiff or plaintiff’s assignor as stated in the plaintiff’s complaint.

I do not agree with and dispute the amount of $1813.66 the plaintiff is claiming is due and owed.

I am not in possession of the terms and conditions of the account as stated in the plaintiff’s complaint.

 

 

4.            I declare that the statements above are true to the best of my information, knowledge, and belief.

 

_______________________________                         _______________________________

Signature                                                                         Date

 

Subscribed and sworn to before me this _________ day of  ___________________________,_____.

 

__________________________________________________________________

NOTARY PUBLIC, COUNTY OF __________________________________, MI

MY COMMISSION EXPIRES:  ___________________________________________

 

 

The Answer:

 

I       X  agree with the statements in paragraph 1.

  disagree with the statements in paragraph 1 because ___________________________________.

  do not know if the statements in paragraph 1 are true.

 

2.            I         agree with the statements in paragraph 2.                                                                                                                                         

                       X disagree with the statements in paragraph 2 because the plaintiff has not provided any evidence in support of this allegation.

  do not know if the statements in paragraph 2 are true.

 

3.            I         agree with the statements in paragraph 3.

                      X disagree with the statements in paragraph 3 because the plaintiff has not provided any evidence in support of this allegation.

  do not know if the statements in paragraph 3 are true.

 

4.            I        agree with the statements in paragraph 4.

                      X disagree with the statements in paragraph 4 because the plaintiff has not provided any evidence in support of this allegation.

  do not know if the statements in paragraph 4 are true.

 

5.            I        agree with the statements in paragraph 5.

                     X disagree with the statements in paragraph 5 because the plaintiff has not provided any evidence in support of this allegation

                       do not know if the statements in paragraph 5 are true.

 

X continued on page 2.

 

____________________________                                              ____________________________________________

Date                                                                                                 Defendant/Attorney signature

 

                                                                                                         _____________________________________

                                                                                                         Name (type or print)

 

IMPORTANT:  If you have affirmative defenses, you must state them now using the last page of this form.  If you do not, the court may prohibit you from raising them later.  An affirmative defense is a defense claiming that the plaintiff is not entitled to a judgment because other facts exist that create a lawful defense.  Affirmative defenses allow you to provide information to the court that is not stated in the plaintiff’s complaint.

 

CERTIFICATE OF SERVICE 

 

I certify that on this date I served a copy of this answer on the plaintiff(s) or their attorney(s) by

  personal service.              first-class mail addressed to their last-known address(es) as defined in MCR 2.107(C)(3).

 

ANSWER, CIVIL (PAGE 1 OF __)                                                                                                                     MCR 2.111

 

                                                                                                  Original – Court                        2nd copy – Defendant
                                                                                                  1st copy – Plaintiff                     3rd copy – Proof of Service

STATE OF MICHIGAN

                                 

 

ANSWER, CIVIL

(PAGE 2 OF __)

 

 

Plaintiff’s name(s)

Portfolio Recovery Associates, LLC as successor in interest of SYNCHRONY BANK / SYNCHRONY BANK

v

Defendant’s name(s) 

 

 

         

 

Continued from page 1.

 

6.            I         agree with the statements in paragraph 6.

X  disagree with the statements in paragraph 6 because the plaintiff has not provided any evidence in support of this allegation.

  do not know if the statements in paragraph 6 are true.

 

7.            I          agree with the statements in paragraph 7.

X  disagree with the statements in paragraph 7 because the plaintiff has not provided any evidence in support of this allegation.

  do not know if the statements in paragraph 7 are true.

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@simplee We are going to need to change your answer. It won't work as well as the affidavit once you post the allegations of the complaint.

1. Was there an affidavit attached? If so, when was it dated and is it from someone from PRA?

2. Did they plead a breach on contract claim? If so, did they attach the terms of the contract? or did they state the agreement is in your possession?

3. Did they attach a bill of sale? If so, was any of it redacted (blacked out)?

4. Were there any actual statements attached? Or did PRA attach a made up statement?

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1 minute ago, bmc100 said:

@simplee We are going to need to change your answer. It won't work as well as the affidavit once you post the allegations of the complaint.

1. Was there an affidavit attached? If so, when was it dated and is it from someone from PRA?  

2. Did they plead a breach on contract claim? If so, did they attach the terms of the contract? or did they state the agreement is in your possession?

3. Did they attach a bill of sale? If so, was any of it redacted (blacked out)?

4. Were there any actual statements attached? Or did PRA attach a made up statement?

1. Yes, 6/23/17 Yes but rubber stamped name and illegible signature.

2.  They only attached the affidavit

3. No

4. No statements attached at all. Just the complaint and the affidavit

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Well, you can have a field day with this one. This affidavit does not qualify under MRE 902(11) and MRE 803(6).

MRE (902(11)

Certified records of regularly conducted activity.

The original or a duplicate of

a record, whether domestic or foreign, of regularly

conducted business activity that

would be admissible under rule 803(6), if accompanied by a written declaration

under oath by its custodian or other qualified person certifying that

(A) The record was made at or near the time of the occurrence of the matters

set forth by, or from information transmitted by, a person with knowledge of

those matters;

(B) The record was kept in the course of the regularly conducted business

activity; and

(C) It was the regular practice of the business activity to make the re

cord.

A party intending to offer a record into evidence under this paragraph must

provide written notice of that intention to all adverse parties, and must make

the record and declaration available for inspection sufficiently in advance of

their offer into

evidence to provide an adverse party with a fair opportunity to

challenge them.

Here is this issue...she never states in the affidavit that she is a person who is knowledgable or she could testify if called upon. This is hearsay within hearsay, within hearsay. If they did not attach the agreement or a statement to the complaint, they cannot create a Prima Facie case to prove their account stated claim.

The affidavit was dated June 23. When was the summons dated?

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This is very simple.  In response to the Plaintiff's complaint, the Defendant, <your name> states the following:

1. If you live in the city where the complaint is filed and have no plans to take this to arbitration...State....The Defendant admits to this allegation.

2. The Defendant is without knowledge...... Reason: The Plaintiff did not attached the assignment documents to the complaint in order to show standing in this case.

3. The Defendant is without knowledge.....Reason: The plaintiff failed to attach any documentation to the complaint to show there was any relationship between the Plaintiff's assignor and the Defendant and therefore cannot create a Prima Facie case under MCL 600.2145.

4. The Defendant is without knowledge...Reason: The Plaintiff failed to attach account statements from the Plaintiff's assignor to show that statements were mailed or sent to the Defendant.

5. Same denial...Reason: Plaintiff or it's assignor has not provided any documentation to show performance has been completed.

6. Same denial...Reason: Plaintiff has failed to show that a relationship exists or that alleged amount owed is due to the Plaintiff.

 

Please attach Page 2 of the complaint.

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21 minutes ago, bmc100 said:

Well, you can have a field day with this one. This affidavit does not qualify under MRE 902(11) and MRE 803(6).

MRE (902(11)

Certified records of regularly conducted activity.

The original or a duplicate of

a record, whether domestic or foreign, of regularly

conducted business activity that

would be admissible under rule 803(6), if accompanied by a written declaration

under oath by its custodian or other qualified person certifying that

(A) The record was made at or near the time of the occurrence of the matters

set forth by, or from information transmitted by, a person with knowledge of

those matters;

(B) The record was kept in the course of the regularly conducted business

activity; and

(C) It was the regular practice of the business activity to make the re

cord.

A party intending to offer a record into evidence under this paragraph must

provide written notice of that intention to all adverse parties, and must make

the record and declaration available for inspection sufficiently in advance of

their offer into

evidence to provide an adverse party with a fair opportunity to

challenge them.

Here is this issue...she never states in the affidavit that she is a person who is knowledgable or she could testify if called upon. This is hearsay within hearsay, within hearsay. If they did not attach the agreement or a statement to the complaint, they cannot create a Prima Facie case to prove their account stated claim.

The affidavit was dated June 23. When was the summons dated?

The summons was dated and stamped July 20th, 2017

 

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22 minutes ago, bmc100 said:

This is very simple.  In response to the Plaintiff's complaint, the Defendant, <your name> states the following:

1. If you live in the city where the complaint is filed and have no plans to take this to arbitration...State....The Defendant admits to this allegation.

2. The Defendant is without knowledge...... Reason: The Plaintiff did not attached the assignment documents to the complaint in order to show standing in this case.

3. The Defendant is without knowledge.....Reason: The plaintiff failed to attach any documentation to the complaint to show there was any relationship between the Plaintiff's assignor and the Defendant and therefore cannot create a Prima Facie case under MCL 600.2145.

4. The Defendant is without knowledge...Reason: The Plaintiff failed to attach account statements from the Plaintiff's assignor to show that statements were mailed or sent to the Defendant.

5. Same denial...Reason: Plaintiff or it's assignor has not provided any documentation to show performance has been completed.

6. Same denial...Reason: Plaintiff has failed to show that a relationship exists or that alleged amount owed is due to the Plaintiff.

 

Please attach Page 2 of the complaint.

Is it better to say don't know if true or to say disagree? 

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1 hour ago, simplee said:

 

4.            I declare that the statements above are true and correct. to the best of my information, knowledge, and belief.

@simplee

You do not swear an affidavit on belief. 

I would title it AFFIDAVIT OF SIMPLEE.

You're in good hands with bmc100. If you have to turn this in tomorrow, I guess you've decided not to motion for arbitration.

 

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Just now, Brotherskeeper said:

@simplee

You do not swear an affidavit on belief. 

I would title it AFFIDAVIT OF SIMPLEE.

You're in good hands with bmc100. If you have to turn this in tomorrow, I guess you've decided not to motion for arbitration.

 

Okay thanks!  I will modify that line, and yes, I  decided to not motion for arbitration because it seemed like more paperwork that was confusing and frustrating. I did read alot of posts on this website about doing arb but felt this was the best "kiss" method for me.

 

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1 hour ago, simplee said:

Is it better to say don't know if true or to say disagree? 

You have to respond to each numbered allegation in the complaint in one of the following three ways: MCR 2.111©(1)(2)(3).

A. The Defendant denies this allegation in its entirety

B. The Defendant admits this allegation in its entirety

C. 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.

MCR 2.111(D) - Form of denials, Each denial must state the substance of the matters upon which the pleader will rely upon to support the denial.

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32 minutes ago, bmc100 said:

Failure to show standing.

It has nothing to do with standing.  A "plaintiff" is a party who has filed a lawsuit.   The JDB filed the lawsuit and has made a claim.

"Plaintiff" is defined as "A person who brings an action; the party who complains or sues in a civil action and is so named on the record. A person who seeks remedial relief for an injury to rights...." Black's Law Dictionary (5th ed.).

"Standing" refers to whether or not that party has the RIGHT to make the claim.   I know of no case law that states a party that does NOT have standing is not a "plaintiff".

 

 

 

 

 

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