Debt Collection Lawsuit in Michigan, Help please

[Shais]

Where to begin? I'll start with the most current dealings of the suit. The plaintiff has now filed a motion for summary disposition. Citing case law and stating that I didn't file a valid defense, it's really freaking me out. I only have a couple of days, I believe, to file my opposition. They filed the motion on the 6th of March and I received it on the 13th via mail. 

Ok how did we get here: 

I filed my answer to the summons and complaint and cited "The contract is void or voidable because (c) there  was no valid contract (no meeting of the minds) because lack of standing. There was no documents served with the summons and complaint. I also put in the answer that I didn't have my contract in my possession and that I didn't know that "The account was duly assigned, in the normal course of business, to plaintiff." Later, they sent a vague bill of sale with vague information such as "Seller hereby transfers, sells, conveys, grants, and delivers to Buyer, its successors and assigns, without recourse except as set forth in the Agreement, to the extent of its ownership, the Accounts as set forth in the Notification File (as defined in the Agreement), delivered by Seller to Buyer prior to such Purchases Date, and as further described in the Agreement." They also sent over a contract that had the last 4 digits of my acct on it but had Synchrony  Bank on it but when I got the credit card the bank was GE Capital. 

I had a pretrial hearing and the judge opened discovery and I filed my request for production of documents and asked for the original contract, a bill of sale of my actual acct, statements for my acct all the way back to the beginning, they only had a few months worth of statements  in 2014 but I opened the acct in 2008. They responded with they didn't need the original contract and that getting other requested information was unnecessary and that the vague bill of sale was enough... 

Help. I know that they need more than what they're providing but I can't prove it basically. 

@bmc100 @Brotherskeeper I've seen your comments all over a thread, any help you're willing to give will be much appreciated! Any help from others will be appreciated as well. 

 

Thanks

[Brotherskeeper]

@Shais When is the hearing date for the motion for summary disposition? 

MCR 2.119(C)(2)  http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/Michigan Court Rules.pdf

(2) Unless a different period is set by these rules or by the court for good cause, any response to a motion (including a brief or affidavits) required or permitted by these rules must be served as follows:
(a) at least 5 days before the hearing, if served by mail, or
(b) at least 3 days before the hearing, if served by delivery under MCR 2.107(C)(1) or (2). 

MCR 2.107(C)(1) Delivery to Attorney. Delivery of a copy to an attorney within this rule means 

(a) handing it to the attorney personally, or, if agreed to by the parties, e-mailing it to the attorney as allowed under MCR 2.107(C)(4); 

(b) leaving it at the attorney's office with the person in charge or, if no one is in charge or present, by leaving it in a conspicuous place;

 

We don't have enough information to help you. In your Answer, did you deny each allegation (usually in numbered paragraphs) in the Complaint? If you failed to deny or state,"that the defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation, and therefore denies," you admitted to it. That means they don't have to offer any proof. 

We would need to see the Complaint and your Answer with personal info masked to know if or what can be done at this point. 

[Clydesmom]

3 hours ago, Shais said:

I filed my answer to the summons and complaint and cited "The contract is void or voidable because (c) there  was no valid contract (no meeting of the minds) because lack of standing.

That is not a valid defense.  It reads as though you pieced together defenses you read of this nature and tried to make it stick.  There does not have to be a "meeting of the minds" between you and an assignee.  When they buy the account they get all the rights and responsibilities of the original creditor.

3 hours ago, Shais said:

There was no documents served with the summons and complaint.

Only a few states require that the documents be served with the complaint.  I do not believe MI is one of them.  You have to do discovery to get those and it would not be a defense if they were not required to attach them to the complaint.

3 hours ago, Shais said:

I also put in the answer that I didn't have my contract in my possession and that I didn't know that "The account was duly assigned, in the normal course of business, to plaintiff."

MI also does not require they notify you that the account was sold.  That is not a valid defense in MI either.

3 hours ago, Shais said:

They also sent over a contract that had the last 4 digits of my acct on it but had Synchrony  Bank on it but when I got the credit card the bank was GE Capital. 

Synchrony took over some of GE's accounts.  When you got it isn't the issue.  When you defaulted is.

3 hours ago, Shais said:

I filed my request for production of documents and asked for the original contract, a bill of sale of my actual acct, statements for my acct all the way back to the beginning, they only had a few months worth of statements  in 2014 but I opened the acct in 2008.

They don't need the original contract because there isn't one.  The courts know it too.  There is no contract in a credit card account.  Opening the card, using it and making payments is the consumer agreeing with the terms and conditions of having the credit and THAT is the contract.  

They also do not have to produce 6 years of statements.  ANY charges in the last 6 months are valid and any prior to that can no longer be disputed as you only have 180 days to do so before they are considered valid.  The last 6 months of statements up to default are sufficient to prove the balance on the account.  It is sad that the idea to demand an accounting from inception to default is a defense that is still out there on the internet to mislead newbies defending themselves.

3 hours ago, Shais said:

I know that they need more than what they're providing but I can't prove it basically. 

Actually they have more than enough to win this MSJ.  You need to start researching how to defend that ASAP because as @Brotherskeeper pointed out with that answer you likely admitted to their allegations and it may be game over.

[Brotherskeeper]

4 hours ago, Shais said:

They also sent over a contract that had the last 4 digits of my acct on it but had Synchrony  Bank on it but when I got the credit card the bank was GE Capital. 

@Shais Please answer:

1.)  When exactly did you receive this Synchrony contract from plaintiff--as a result of your discovery requests for production of documents or before?

2.)  Does the Synchrony agreement they gave you match the type of credit card account you allegedly had with GE Capital? 

3.)  What date did plaintiff claim you defaulted on the account?

Read the Synchrony agreement plaintiff provided to see if it has a section marked "Arbitration." 

 

[fisthardcheese]

If this were me, I would respond with my opposition to summary judgement by stating that the contract provided by Plaintiff in discovery contains a private arbitration clause that removes jurisdiction from this court if elected.  I would state that Defendant has motioned this court to compel private arbitration per the underlying contract and that this case, along with the summary judgement should be stayed pending the completion of private arbitration with JAMS (the arbitration firm).  I would also toss in (just in case somehow the arbitration issue fails) that Plaintiff has not shown that they are the proper party in interest on this account and that the alleged amount owed in controversy remains disputed by the defendant.

At the same time I file this opposition, I would file a motion to compel arbitration.  A summary and sample of such a motion can be found in the link below in my signature.

[Shais]

8 hours ago, Brotherskeeper said:

@Shais When is the hearing date for the motion for summary disposition? 

MCR 2.119(C)(2)  http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/Michigan Court Rules.pdf

(2) Unless a different period is set by these rules or by the court for good cause, any response to a motion (including a brief or affidavits) required or permitted by these rules must be served as follows:
(a) at least 5 days before the hearing, if served by mail, or
(b) at least 3 days before the hearing, if served by delivery under MCR 2.107(C)(1) or (2). 

MCR 2.107(C)(1) Delivery to Attorney. Delivery of a copy to an attorney within this rule means 

(a) handing it to the attorney personally, or, if agreed to by the parties, e-mailing it to the attorney as allowed under MCR 2.107(C)(4); 

(b) leaving it at the attorney's office with the person in charge or, if no one is in charge or present, by leaving it in a conspicuous place;

 

We don't have enough information to help you. In your Answer, did you deny each allegation (usually in numbered paragraphs) in the Complaint? If you failed to deny or state,"that the defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation, and therefore denies," you admitted to it. That means they don't have to offer any proof. 

We would need to see the Complaint and your Answer with personal info masked to know if or what can be done at this point. 

@Brotherskeeper

Thanks so much for your insight. I've attached the complaint and answer for everyone's review. Sorry I couldn't get it on here sooner. Did I screw myself? Anything else you might need?

Complaint and answer.pdf

[Brotherskeeper]

@Shais You admitted to all the allegations in paragraph 2:  That 1.) You entered into an agreement with Plaintiff's assignor, 2.) Synchrony Bank,  3.) for an account, 4.) with the last 4 digits 4889.

10 hours ago, Brotherskeeper said:

When is the hearing date for the motion for summary disposition? 

 

8 hours ago, Brotherskeeper said:

@Shais Please answer:

1.)  When exactly did you receive this Synchrony contract from plaintiff--as a result of your discovery requests for production of documents or before?

2.)  Does the Synchrony agreement they gave you match the type of credit card account you allegedly had with GE Capital? 

3.)  What date did plaintiff claim you defaulted on the account?

Read the Synchrony agreement plaintiff provided to see if it has a section marked "Arbitration." 

 

[Shais]

@Brotherskeeper The hearing for the summary disposition is on the 5th.

1.) 11 days after I was served the summons so before the request

2.) Yes

3.) I don't believe they gave a specific date of default

 

[Shais]

@Brotherskeeper There is a section marked resolving a dispute with arbitration.  Additionally, the 3 pg contract they provided just says QVC credit card account agreement pn it.  The pricing information addendum has the heading "Synchrony Bank Pricing Information Addendum For your QVC Qcard Account Ending in 4889" marked as page 1.

[Shais]

@Brotherskeeper Don't they have to prove emphatically that they purchased my account? The chain of assignment hasn't been proven right?

[Shais]

@fisthardcheese Why would going the arbitration route be the way to go? Is JAMS the normal arbitration firm or something?

[Brotherskeeper]

5 minutes ago, Shais said:

@Brotherskeeper Don't they have to prove emphatically that they purchased my account? The chain of assignment hasn't been proven right?

 

2 hours ago, Brotherskeeper said:

You admitted to all the allegations in paragraph 2:  That 1.) You entered into an agreement with Plaintiff's assignor, 2.) Synchrony Bank,  3.) for an account, 4.) with the last 4 digits 4889.

 

[Brotherskeeper]

@Shais I do see you denied paragraph 4 of the Complaint, "The account was duly assigned, in the normal course of business, to Plaintiff," adding, "I do not know this."

[Shais]

6 hours ago, Brotherskeeper said:

@Shais I do see you denied paragraph 4 of the Complaint, "The account was duly assigned, in the normal course of business, to Plaintiff," adding, "I do not know this."

What are your thoughts on this? Why did you ask about the arbitration clause? @Brotherskeeper

[Brotherskeeper]

5 hours ago, Shais said:

What are your thoughts on this? Why did you ask about the arbitration clause?

The Synchrony agreement has a very favorable (to you) arbitration clause in it. Many recent posters here at CIC have successfully used the arbitration clause to ask the court to send the dispute to arbitration and out of court. JAMS is an arbitration forum as is AAA. The costs of going to arbitration are very low for the consumer (you) and quite high for the debt buyer. Submitting a motion to compel arbitration to the court and getting it granted by the judge usually results in the debt buyer plaintiff negotiating a walk away settlement or a low monetary settlement, if the consumer desires to pay something. The problem for you is that you have participated in court proceedings, like making requests for discovery, that may cause a judge to deny the motion. Fisthardcheese is very knowledgeable about using arbitration as a strategy to get out of court and get a debt buyer ready to settle. Please read his thread to understand more. 

@Shais

I don't know if you're up to drafting and filing a motion to compel arbitration plus drafting the opposition response required for plaintiff's summary disposition in such a short amount of time. Realistically, your chances of defeating their motion for summary disposition may not be very good. However, if you don't try, your failure rate will be 100%.

[Brotherskeeper]

On 3/27/2018 at 7:03 AM, Shais said:

I had a pretrial hearing and the judge opened discovery and I filed my request for production of documents and asked for the original contract, a bill of sale of my actual acct, statements for my acct all the way back to the beginning, they only had a few months worth of statements  in 2014 but I opened the acct in 2008. They responded with they didn't need the original contract and that getting other requested information was unnecessary and that the vague bill of sale was enough... 

1.)  Was your alleged account sold multiple times or just once from Synchrony to PCA?

2.)  Were any affidavits (sworn and notarized statements) included from a.) Synchrony and b.) PCA?

3.)  Do the credit card statements they provided in discovery show any purchases?

4.)  Do those credit card statements show any payments? If so, did you make those payments and for the exact amount shown?

5.)  Are there any discrepencies like wrong address for the date/year shown on the statement? Balances and interest rate changes that don't make sense?

 

[Shais]

3 minutes ago, Brotherskeeper said:

1.)  Was your alleged account sold multiple times or just once from Synchrony to PCA?

2.)  Were any affidavits (sworn and notarized statements) included from a.) Synchrony and b.) PCA?

3.)  Do the credit card statements they provided in discovery show any purchases?

4.)  Do those credit card statements show any payments? If so, did you make those payments and for the exact amount shown?

5.)  Are there any discrepencies like wrong address for the date/year shown on the statement? Balances and interest rate changes that don't make sense?

 

@Brotherskeeper  

1. No it looks like it was just sold once to PCA 

2. Yes there are affidavits from both Synchrony and PCA

3. No, they show name, last 4 of acct, summary of account activity that shows balance and credit limit, payment information, and transaction history that only shows payments and credits. 

4. Yes it shows payment amounts and whether it was an online payment or over the phone payment. 

5. No, no information with discrepancies. 

 

Do you have to file the motion to compel arbitration at the same time you file a response? The courts are closed tomorrow and Friday and the 3rd is actually another pretrial hearing and the 5th is the summary disposition hearing. 

[Shais]

@Brotherskeeper is there a template form for Michigan to use for the Opposition to motion for summary disposition? 

[Brotherskeeper]

 

1 hour ago, Shais said:

@Brotherskeeper is there a template form for Michigan to use for the Opposition to motion for summary disposition? 

 No, not a one-size-fits-all template. BMC100 has a pinned thread on Michigan that has some examples, but some of this is old info and dated. You are not being sued on an account stated cause of action, but this thread has some info and an example of a summary disposition response: 

Ok here is my updated brief. 

https://www.creditinfocenter.com/community/applications/core/interface/file/attachment.php?id=2727

[Shais]

@Brotherskeeper In your brief are you going line by line against what Plaintiff sent? In my disposition there are 17 different comments, am I supposed to respond line for line?

[Shais]

@BrotherskeeperThank you so much for your help and direction and knowledge and resources! I really appreciate it!

[Brotherskeeper]

4 hours ago, Shais said:

@Brotherskeeper In your brief are you going line by line against what Plaintiff sent? In my disposition there are 17 different comments, am I supposed to respond line for line?

(I am not a lawyer IANAL) There is usually a motion and then a supporting brief that accompanies the motion. (Sometimes the 2 are combined.) The opposing side responds to the points in the motion and submits its own brief to present its statements of fact with citations to the evidence or absence of evidence of those facts, its opposing arguments and the law to support them.If you fail to rebut or refute an allegation or argument, it is then undisputed. In a motion for summary disposition (MCR 2.116(C)(10))*** you need to point out the missing evidence for a material fact of the plaintiff's case, or submit with an affidavit some evidence of your own that disputes a material fact in order to have the judge deny their motion. 

 

***MCR 2.116(C)(10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

[bmc100]

I am no longer helping people. They have done what they were instructed to do and as a result, they were getting hit with judgements. For you to get help you need to start at the beginning. Their complaint, who the JDB is, who the attorney is, what evidence they have given you...basically everything. Plus your answer and defenses. Then we need to know what is in their MSJ. Until we get all that, it is next to impossible to help you with less than a week until your hearing.