preciousfrog1

Sued by CACH, LLC

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img026.thumb.jpg.baab8176ffab88831379fa11b4302ac0.jpgimg025.thumb.jpg.d9799953036f83029967474a71927f1e.jpgSo yesterday I received a summons and complaint from CACH, LLC  they say I owe a debt from Capital One of $600.00 from September, 2012. In 2 months this account will be 6yrs old.The attorney's that CACH is using have never contacted me for this debt, so I could not even ask for debt verification. I don't know how to answer the complaint, or if I should file a motion. This is crazy all they sent me was this complaint and nothing before this not one letter or phone call. Could some one please give me some suggestions on what to do?

 

 

 

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I have read BMC 100 but I am still not sure how to go about this BMC 100 says......I have also been advocating to many posters to file a motion to dimiss, prior to filing an answer. If you see that the Plaintiff did not plead the assignment, do not let the case move forward until they can either correct their mistakes by properly pleading the assignment and by attaching the proper documentation to the complaint.

9. In every case, the assignment documents are missing. The Plaintiff will usually provide the bill of sale and a computer printout with your personal information in it. The bill of sale is signed by an employee of the original creditor, but carefully read the bill of sale. It will also state other documents that the Plaintiff does not want you to see. Given recent case law, if the Plaintiff cannot provide the written contract upon which the sale is based that also shows that your account was included in the sale of accounts, the Plaintiff has failed to show they have standing. I found this by looking in the search engine for summons. I dont know if its late at night or maybe I am being a "blonde" but I still dont understand what the next step for me should be, if someone could put it more simpler that would be great. I know these people are in the wrong and I can not afford a lawyer and I should not have to pay for something that is not mine to pay.

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BMC's advice assumes the debt was legitimately owed to the OC.  In your case, you would file a police report of ID Theft/fraud and then prepare an affidavit stating under penalty of perjury that you are a victim of ID Theft/fraud.  Then you would contact the lawyer for CACH and notify them that you are a victim of ID Theft/fraud and ask where you should send your documentation so that they can dismiss their lawsuit against you.

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Harry Seaward I am not to sure that it is ID theft, I apologize for the confusion. I just can't remember the account, there is a chance that it is mine, this account is almost 6yrs old. So I will not do the ID theft route unless I see the original contract and its not my signature. My memory is terrible and I dont want to do ID theft and make a mistake and look like a fool. I will edit my original post. There should be a way to dismiss this cause they never notified me that they were trying to collect a debt, they went straight to court filing and sued me. And when I got the complaint and summons there was no attachments showing proof that they own my debt and have a right to collect, let alone they skipped my opportunity to ask for debt verification. Again I do apologize for wording my post wrong if I had more info from them maybe I would remember more, but no they just give me some hearsay account number. 

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8 hours ago, preciousfrog1 said:

unless I see the original contract and its not my signature.

There will be no signature.  Credit card applications are 100% electronic.  They do not need a wet signature to tie the debt to you.

8 hours ago, preciousfrog1 said:

There should be a way to dismiss this cause they never notified me that they were trying to collect a debt, they went straight to court filing and sued me.

They are not required to notify you they are trying to collect a debt before filing a lawsuit.

9 hours ago, preciousfrog1 said:

when I got the complaint and summons there was no attachments showing proof that they own my debt and have a right to collect

As I understand MI court rules, they are in fact required to attach some evidence to the complaint.  If they did not do this, you can spring it on them at the hearing, but I would expect the court to give them an opportunity to amend their complaint to include the required records.  At that point, you're back to square one.

How long ago did you open the account?  Cap1 used to have arbitration in their agreements, but removed it a few years ago.  If you opened it back when arb was still there, then that's going to be about your only real shot at making this go away.

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1 hour ago, Harry Seaward said:

How long ago did you open the account

2012 super close to 6yrs ago, could you tell me more about the arbitration you are referring to.

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1 hour ago, Harry Seaward said:

As I understand MI court rules, they are in fact required to attach some evidence to the complaint.

Also how would I fight this or bring it up. I was looking at public records and these attorneys at Stenger&Stenger are out of Grand Rapids which is an hour and a half away from Ingham County court and only came to this court house once 7yrs ago.

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There is currently a glut of lawyers, so they will find someone local to show up for twenty bucks.

Do we know if there has been a recent change to MI statutes to get past the need to attached evidence to a complaint? We've seen a couple like this, recently, and seems like such an unnecessary mistake. I assume they still have to attached something more to an MSJ. Must make some kind of sense, as there was a period of time where it seemed like every complaint came pre-packaged with everything - including MSJ verbiage.

 

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10 hours ago, preciousfrog1 said:

Also how would I fight this or bring it up.

There are a few holdouts that still believe there exists a "special sauce" but it's really just a matter of dumb luck. most courts aren't interested in word games and smoke & mirrors. If the plaintiff shows up with records they can tie to you as a defendant, they will almost always win.

Capital One removed arbitration from their agreements more than six years ago, so that option is not on the table.

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I have not filed my Answer to the Complaint but I am writing "defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation and therefore denies". I posted their complaint in my first post and you can see what im denying. I think I am good on that part but i am not sure what to do about the Affirmative Defenses? Do you guys have any ideas? Also Am I on the right track and doing ok? Thank you for your opinions.

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In case I wasn't clear, it doesn't matter really what you put in your answer.  Chances are very good that CACH will show up with records attributable to you. Unless you have the 1-in-100 judge that just doesn't like JDBs, you're going to end up with a judgment against you. 

For $600, I would be trying to settle this. Offer $300 to get the ball rolling, but expect you're probably going to end up pretty close to the full amount. 

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If you want to contest this in court, just follow advice of  @bmc100 and see what happens. My only request is that, if it goes sideways, you let us know the outcome so others with more options don't get burned.

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So if I lose and they try to collect, but I am collection proof, except I do have a 2005 trailblazer title in my name and a joint bank account with my husband, can they go after my husband for my debt? and should I take my name off the bank account and put the title of the truck in his name? Thank you

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Michigan is not a community property / debt state, so the only way they could get his money is if he also signed for the credit card.

A joint bank account is a different matter. Because both names are on it, it's likely assumed that what's in there is equally owned by both parties.

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No he has nothing to do with the card. And I think I will remove my name off the joint account to be safe because none of that money is mine I have not worked in 10yrs and nothing gets deposited in my name in that account. I just pay the bills and buy food and clothing when needed and he always knows what I am buying. Thank you

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On 6/28/2018 at 12:05 PM, Goody_Ouchless said:

There is currently a glut of lawyers, so they will find someone local to show up for twenty bucks.

Do we know if there has been a recent change to MI statutes to get past the need to attached evidence to a complaint? We've seen a couple like this, recently, and seems like such an unnecessary mistake. I assume they still have to attached something more to an MSJ. Must make some kind of sense, as there was a period of time where it seemed like every complaint came pre-packaged with everything - including MSJ verbiage.

 

Goody is correct. I met a man who went to law school and moved back to Michigan, could not find a job. Most young attorneys are going to work for law mills in document prep making $14-$20/hr. Him and his father, who was a criminal attorney was telling me that the bar for entry into law school has dropped so much that new grads who pass the bar exam are making peanuts and will take any job offer that comes their way. There will always be an attorney who shows up.  The majority of attorneys are now working for staffing companies or outsourcing firms on contract jobs.

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@preciousfrog1

I've read your complaint. You are being sued on an account stated cause of action.(See #8 of the complaint.) That will require you to file an answer with an affidavit. We can help. Please answer:

1.) Did plaintiff attach (include) an affidavit or anything else to the complaint? 

2.) You received this on Wed. June 27? If yes, this starts the clock on your time to respond. 

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No I recevied only what copied in my first post, summons and complaint nothing else attached 

1 hour ago, Brotherskeeper said:

You received this on Wed. June 27? If yes, this starts the clock on your time to respond

Yes that is correct June 27th

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39 minutes ago, preciousfrog1 said:

No I recevied only what copied in my first post, summons and complaint nothing else attached 

Yes that is correct June 27th

How were you served with the summons and complaint? 

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).

(2) If service of the summons and a copy of the complaint is made outside Michigan, or if the manner of service used requires the summons and a copy of the complaint to be sent by registered mail addressed to the defendant, the defendant must serve and file an answer or take other action permitted by law or these rules within 28 days after service.

(3) When service is made in accordance with MCR 2.106, the court shall allow a reasonable time for the defendant to answer or take other action permitted by law or these rules, but may not prescribe a time less than 28 days after publication or posting is completed.

(4) A party served with a pleading stating a cross-claim or counterclaim against that party must serve and file an answer or take other action permitted by law or these rules within 21 days after service.

(5) A party served with a pleading to which a reply is required or permitted may serve and file a reply within 21 days after service of the pleading to which it is directed.

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30 minutes ago, Brotherskeeper said:

How were you served with the summons and complaint? 

I was served by a person at my home to me. I was going to file my answer on monday or tuesday denying all lines except the line with my address. There is a possibility that the bill may not be mine because my husband has a sister with the same name as mine and we have lived together in the past. How do they know if its the right person? Do they have social security numbers to verify or date of birth? I have no billing statements. What info are they going on? 

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7 minutes ago, preciousfrog1 said:

I was served by a person at my home to me. I was going to file my answer on monday or tuesday denying all lines except the line with my address.

Please take the time to understand what is required of you before filing an answer on an account stated cause of action. (I am not a lawyer.) You have a deadline of 21 days from service. Put this time to good use. What do you hope to gain by filing an answer before you've had time to research this account and whether it may belong to your sister-in-law?

 

13 minutes ago, preciousfrog1 said:

How do they know if its the right person? Do they have social security numbers to verify or date of birth? I have no billing statements. What info are they going on? 

We don't know what Cach has. You would request this information during discovery. 

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15 minutes ago, Brotherskeeper said:

what is required of you before filing an answer

Do you happen to know where I may find more info or maybe you know some of the requirements?

18 minutes ago, Brotherskeeper said:

research this account

The only thing I can think of is my credit report do you have any other suggestions?

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1 hour ago, preciousfrog1 said:

The only thing I can think of is my credit report do you have any other suggestions?

I don't mean to pry, but have you asked your sister-in-law if this is her account? Yes, check your credit reports. 

1 hour ago, preciousfrog1 said:

Do you happen to know where I may find more info or maybe you know some of the requirements?

Several Michigan threads on this forum have sample affidavits for denying account stated claims. When I get a minute, I'll find a few.

http://dc.ingham.org/SelfHelp.aspx

https://michiganlegalhelp.org/self-help-tools/money-and-debt/ive-been-sued-debt-collection-case

 

Michigan statute (law) on account stated:

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.

 

**Prima facie**  Definition:  Latin for "at first sight." 

Overview 
Prima facie may be used as an adjective meaning "sufficient to establish a fact or raise a presumption unless disproved or rebutted." An example of this would be to use the term "prima facie evidence."

It may also be used as an adverb meaning "on first appearance but subject to further evidence or information." An example of this would be to use the term  "prima facie valid."

A prima facie case is the establishment of a legally required rebuttable presumption.  A prima facie case is a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party.

 

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@preciousfrog1 (I am not a lawyer "IANAL") Here is a rough idea of what an affidavit to deny an account stated claim would look like. (The formatting is a bit off at the bottom.) You would need to fill in your own statements of fact and delete those that don't apply. Each statement needs to be true as this is your sworn testimony. If you don't know if you ever opened or had a credit card issued by Capital One Bank (USA), N.A., and you think it's possible you did have an account, you can't flat out deny it. If you determine you never had the account, then include a statement to deny it. 

 

<<<Court Case Header Here--Like Complaint Header>>>

AFFIDAVIT OF PRECIOUSFROG1

 

     NOW COMES Preciousfrog1, Defendant Pro Se, whose residence is xxxxx, MI 48xxx, certifies and says:

1.  I am a resident of the State of Michigan, Ingham County, and I am a competent person over 18 years of age. This affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify competently to the facts in this affidavit.

2.  I deny that an agreement from Capital One Bank (USA), N.A., account number XXXX was ever delivered to me. I have no such agreement in my possession.  

3.  I deny I am indebted to Plaintiff's alleged assignor or Plaintiff in the amount of $600.00.

4.  Plaintiff never extended credit to me.

5.  I deny that I received billings from Plaintiff's alleged assignor or Plaintiff. I could not dispute or object to the accuracy of billings I never received.

6.  I never agreed to make payments to Plaintiff's alleged assignor or Plaintiff. I never assented to owing any balance to Plaintiff's alleged assignor or Plaintiff.

7.  There have been no transactions or course of dealings or communications between Plaintiff and me prior to the service of Plaintiff's Complaint.

 

     I certify under penalty of perjury that the foregoing statements are true and correct. 

Dated: July ___, 2018                                                                                     _____________________________(Preciousfrog1's signature)

                                                                                                                       PreciousFrog1                                                   

STATE OF MICHIGAN

COUNTY OF INGHAM

Signed and sworn to (or affirmed) before me on:____________

My commission expires on:___________

(seal)                                                                                                                  _______________________________(Notary's signature)

                                                                                                                           Notary Public

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2 hours ago, Brotherskeeper said:

@preciousfrog1 (I am not a lawyer "IANAL") Here is a rough idea of what an affidavit to deny an account stated claim would look like. (The formatting is a bit off at the bottom.) You would need to fill in your own statements of fact and delete those that don't apply. Each statement needs to be true as this is your sworn testimony. If you don't know if you ever opened or had a credit card issued by Capital One Bank (USA), N.A., and you think it's possible you did have an account, you can't flat out deny it. If you determine you never had the account, then include a statement to deny it. 

 

<<<Court Case Header Here--Like Complaint Header>>>

AFFIDAVIT OF PRECIOUSFROG1

 

     NOW COMES Preciousfrog1, Defendant Pro Se, whose residence is xxxxx, MI 48xxx, certifies and says:

1.  I am a resident of the State of Michigan, Ingham County, and I am a competent person over 18 years of age. This affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify competently to the facts in this affidavit.

2.  I deny that an agreement from Capital One Bank (USA), N.A., account number XXXX was ever delivered to me. I have no such agreement in my possession.  

3.  I deny I am indebted to Plaintiff's alleged assignor or Plaintiff in the amount of $600.00.

4.  Plaintiff never extended credit to me.

5.  I deny that I received billings from Plaintiff's alleged assignor or Plaintiff. I could not dispute or object to the accuracy of billings I never received.

6.  I never agreed to make payments to Plaintiff's alleged assignor or Plaintiff. I never assented to owing any balance to Plaintiff's alleged assignor or Plaintiff.

7.  There have been no transactions or course of dealings or communications between Plaintiff and me prior to the service of Plaintiff's Complaint.

 

     I certify under penalty of perjury that the foregoing statements are true and correct. 

Dated: July ___, 2018                                                                                     _____________________________(Preciousfrog1's signature)

                                                                                                                       PreciousFrog1                                                   

STATE OF MICHIGAN

COUNTY OF INGHAM

Signed and sworn to (or affirmed) before me on:____________

My commission expires on:___________

(seal)                                                                                                                  _______________________________(Notary's signature)

                                                                                                                           Notary Public

This is good.

  • Thanks 1

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