Sued by Calvalry in Michigan

[castle]

Hello,

I just received a summons from Cavarly. I would like some advice on how to proceed. I read some old posts regarding filing a motion to dismiss and/or an answer. I would like to see if those older posts from a few years ago still apply in Michigan. Please advise. I appreciate all the help.

Thank you.

[Brotherskeeper]

@castle JDBs have adjusted tactics, so please answer the questions below with personal info redacted:

 

[castle]

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

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)    Grossman & Karaszewski, PLLC

 

3. How much are you being sued for?  $1400, plus costs and interest.

 

4. Who is the original creditor? (if not the Plaintiff)  Citibank

 

5. How do you know you are being sued? (You were served, right?) Served

 

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? None

 

9. What state and county do you live in? Michigan, St. Joseph, District Court

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Unknown, plaintiff provided a statement copy listing: billing period 05/2015

 

11. When did you open the account (looking to establish what card agreement may be applicable)? Unknown, plaintiff provided a statement copy listing: member since 2012

   

12. What is the SOL on the debt? 6 Years

           

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit served

 

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No, I am in process of doing that now that I am aware of the attempted collection.

 

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No

 

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

- 21 days

- Did not receive a interrogatory (questionnaire).

 

“CHARGES”

1. Jurisdiction and venue are proper in this court.

2. That at all times hereinafter mentioned, Plaintiff Calvary, was and still is a limited liability company..etc.

3. That on or about 12/2017, Plaintiff purchased certain accounts from Citibank. Defendant is obligated on one of those accounts as more specifically described below. The account is duly assigned…

4. Upon information and belief, Defendant has possession of the contract upon which the claim is based.

5. Plaintiff and/or its assignor completed performance under the terms and conditions of the account.

6. Defendant has defaulted under the terms and conditions of the account by failing to pay as promised.

7. As of date this action was filed, there was due to Plaintiff Cavalry and from Defendant the sum of xxxx, all of which is damages due to the result of an account specifically identified as a Credit Card issued by Citibank (account number ending in XXXXXXXX)

8. Upon information and belief, Defendant is in possession of the contract.

9. Defendant has not paid the sum of xxxx, although payment thereof has been duly demanded by the plaintiff.

 

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

- A copy of a complete monthly billing statement

- A copy of the entire Credit Card contract

- Bill of Sale and Assignment from Citibank to Cavalry

- Exhibit 1: Page 1: The individual Accounts transferred are described in the final electronic file and delivered by the Bank to the Buyer, the same deemed attached hereto by ths reference: Brands Quad Bulk, sale id, # of account (blacked out), Sale balance (blacked out), Cut-off date

- Exhibit 1: Page 2: Lists personal account information in a table form with account number blacked out except for last four digits: Account number, sale amount, account open date, last payment date, consumer information

[castle]

Thank you for any help provided.

[Brotherskeeper]

@castle 

1.) Does the credit card contract plaintiff submitted as an exhibit have an arbitration section?

2.) Does the copy of the "complete" monthly billing statement plaintiff provided indicate a balance due that is the same as the amount you're being sued for?

3.) Is there an affidavit from Citibank and one from Cavalry?

 

[castle]

1.) Does the credit card contract plaintiff submitted as an exhibit have an arbitration section?

     Yes

2.) Does the copy of the "complete" monthly billing statement plaintiff provided indicate a balance due that is the same as the amount you're being sued for?

    Yes, the exact amount

3.) Is there an affidavit from Citibank and one from Cavalry?

    No affidavit that I can tell. Definitely no papers that say affidavit on them.

    Only paperwork I received was the:

1. Summons & Complaint Form MC 01  (1 page)
2. Complaint signed by the lawyer (2 pages)
3. Monthly Statement  (2 pages)
4. CC Contract (19 pages)
5. Bill of sale and assignment signed by Citibank (3 pages)

 

[Brotherskeeper]

24 minutes ago, castle said:

1.) Does the credit card contract plaintiff submitted as an exhibit have an arbitration section?

     Yes

Are you able to post the arbitration section language? 

[castle]

Yes, thanks for your help. I really appreciate it.

[Brotherskeeper]

@castle

This pinned thread explains the strategy and process of consumer arbitration.  Please read it if you haven't. Then you can make a better informed decision whether to use this strategy to get out of court. Michigan has some specific rules that alter the grounds of the motion to compel. We have recent threads with good templates. 

 

[castle]

Thank you. I read the thread you suggested. With what you have seen, do you think arbitration is the way to go? Also if I do go the arbitration route, do I file a separate motion to compel arbitration first or do I just include it in my answer? Could you please point me in the direction of the good templates for Michigan? This is my first time doing any of this. Oh, and I read all of  CandyCLC LVNV Summons thread....it is very helpful.

Thanks

[castle]

2 hours ago, Brotherskeeper said:

@castle

This pinned thread explains the strategy and process of consumer arbitration.  Please read it if you haven't. Then you can make a better informed decision whether to use this strategy to get out of court. Michigan has some specific rules that alter the grounds of the motion to compel. We have recent threads with good templates. 

 

JDBs/attorneys are pushing back against this arb strategy.

I have been reading your posts all day. Thanks for all the great input. You mention:" Michigan has some specific rules that alter the grounds of the motion to compel." And after reading CandyCLC threads I am not sure which is first...MLC or answer?

[Brotherskeeper]

10 hours ago, castle said:

JDBs/attorneys are pushing back against this arb strategy.

Yes, we've seen some of that. It's a weak argument that usually fails, but not always. If a motion to compel arb is denied, you may fight on in court or attempt to settle.

10 hours ago, castle said:

I have been reading your posts all day. Thanks for all the great input. You mention:" Michigan has some specific rules that alter the grounds of the motion to compel." And after reading CandyCLC threads I am not sure which is first...MLC or answer?

CandyCLC submitted a motion to compel arb in lieu of an answer. Michigan rules of civil procedure allow for this. Many employment contracts have binding arb clauses, so arb is not unicorn unusual in Michigan courts. Your court and judge may or may not be familiar with it. I would doubt your court has seen many if any motions to compel arb in consumer debt cases. (I am not a lawyer.IANAL) I've read several attorney-prepared motions to compel arb in lieu of an answer, as well as a few judges' rulings granting them. CandyCLC's case was settled in the hall before the motion hearing, so we do not know how her judge would've ruled. If that motion was denied, she then would've filed an answer and fought on in court, always with the option to offer a settlement along the way.

Filing an answer that includes an agreement to arbitrate as an affirmative defense, with or followed soon after by the MTC arb, is the usual method here at CIC. It is a bit more work than filing the motion to compel arb in lieu of an answer. 

[castle]

Thanks Brotherskeeper. I filed a answer with the arbitration defense and had a pre trial. At the pre trial the judge ordered a summary disposition. I received the JDB summary disposition. Do I have to respond the that in written form to the court?

Thanks

[Brotherskeeper]

2 hours ago, castle said:

Thanks Brotherskeeper. I filed a answer with the arbitration defense and had a pre trial. At the pre trial the judge ordered a summary disposition. I received the JDB summary disposition. Do I have to respond the that in written form to the court?

Thanks

Did you file a motion to compel arbitration? If not, why not? This was a critical step. CandyCLC's 2 threads had some Michigan-specific info. 

Have you and plaintiff exchanged discovery requests?

Yes, you will have to prepare and file a timely written response in oppostion, with disputed material facts, to their motion for summary dispostion, if you don't want to have the judge grant their motion. 

[Brotherskeeper]

2 hours ago, castle said:

At the pre trial the judge ordered a summary disposition

Explain this please. Who did the judge's order apply to? You to submit your motion to compel arb? Plaintiff?

[Goody_Ouchless]

3 hours ago, castle said:

I received the JDB summary disposition.

What did that say - that the judge ruled in their favor and they now have a judgement against you?

[castle]

At the pretrial conference the judge spoke that I had the affirmative defense of requesting arbitration in my answer. He then stated "well it is now back to the plaintiff" and ordered a summary disposition with a second court date 31 days from the pretrail date . The judge also stated "arbitration is no sweat off my back, makes it easier for me." I received a summary disposition from the JDB about 2.5 weeks later. I have not filed a motion to compel arbitration, yet. I was under the impression I had to wait until the pretrial conference was completed. The summary disposition just restates everything from the original complaint. Now do I file a opposition response to the summary disposition and a motion to compel arbitration?

There has been no ruling. The pretrial conference was a result of the mandatory questionnaire that the court mailed me after I submitted my answer.

 

I then received a pretrial conference memorandum from the court.  The memorandum states that I filed a general denial answer, with a statement of facts included, to request arbitration. It also states the plaintiff is granted 21 days to file a Motion for Summary Disposition and the defendant is granted 21 days to respond, including their request for arbitration. The matter has been set for continued pretrial conference and Motion for Summary Disposition.

[castle]

2 hours ago, Brotherskeeper said:

Did you file a motion to compel arbitration? If not, why not? This was a critical step. CandyCLC's 2 threads had some Michigan-specific info. 

- I did not. I thought I had to wait for the pretrial conference first. According the the below memo, can I still file it? I will file it tomorrow.

Have you and plaintiff exchanged discovery requests?

- no

Yes, you will have to prepare and file a timely written response in oppostion, with disputed material facts, to their motion for summary dispostion, if you don't want to have the judge grant their motion. 

- ok thanks

 

[castle]

2 hours ago, Brotherskeeper said:

Explain this please. Who did the judge's order apply to? You to submit your motion to compel arb? Plaintiff? 

I think both of us. I included a copy of the memo below. Please advise if possible. Thanks

[Brotherskeeper]

@castle

"The Defendant is granted 21 days to respond, including their request for arbitration." 

When is the 21 days to respond deadline? 

I am not a lawyer. As I understand this, you can include your motion to compel arbitration along with your opposition response to their MSD (motion for summary disposition). I urge you to post your drafts here for comments before filing with the court. IMO you have little room for error since you delayed taking any arb action after first asserting it as an affirmative defense in your answer.

17 hours ago, castle said:

The judge also stated "arbitration is no sweat off my back, makes it easier for me."

^^^This is a good sign.

We also need to see plaintiff's MSD in order to offer any advice. 

[castle]

Thanks Brotherskeeper,

I have until Nov. 26th to file an opposition of summary disposition. I will post their MSD here soon.

 

[castle]

Hello all,

Thank you for all the help. Update on the case, I have already submitted an Answer and Motion to Compel Arbitration with an affidavit. I sent a letter certified return receipt to attorney requesting arbitration and submitted it as an exhibit. Now our next court date is for both my MTC Arbitration AND plaintiff's Summary Disposition. So I now must submit a response to the plaintiff's summary disposition. I have researched many resources on here and have some templates started. I am just looking for some guidance on the specifics of my response. Attached is the Summary Disposition. Please let me know if I need to post anything else to receive help. The original complaint is already posted in this thread. Thanks for the help! I would have not been able to file the answer or the motion without the help I have found on this board!

FYI: The CC contract was also attached as an Exhibit. I have also posted the arbitration section of that agreement in this thread.

[Brotherskeeper]

@castle If you properly asserted the existence of an agreement to arbitrate as an affirmative defense in your Answer, under a separate heading titled "AFFIRMATIVE DEFENSES," then you  pleaded ("raised") a valid affirmative defense in a timely manner. MCR 2.111(F)(3)(a)(b).

Rule 2.111 General Rules of Pleading 

"(F) Defenses; Requirement That Defense Be Pleaded.

(3) Affirmative Defenses. Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting

(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;

(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;

(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise."

 

•  An arbitration agreement is in the nature of a release or a statute of limitations, narrowing a party’s legal rights to pursue a particular claim in a particular forum, and the party asserting an arbitration agreement defense to litigation must timely assert that defense. Hendrickson v Moghissi, 158 Mich App 290, 298; 404 NW2d 728 (1987). 
• Whether an arbitration agreement exists and is enforceable are judicial questions.  Arrow Overall Supply Co v Peloquin Enterprises, 414 Mich 95, 99; 323 NW2d 1 (1982). 
• To determine whether an issue is subject to arbitration, a court must consider (1) whether there is an arbitration provision in the parties’ contract, (2) whether the disputed issue is arguably within the arbitration clause, and (3) whether the dispute is expressly exempt from arbitration under the terms of the contract. City of Huntington Woods v Ajax Paving Industries, Inc (After Remand), 196 Mich App 71, 74-75; 492 NW2d 463 (1992).
•  “A court should not interpret a contract’s language beyond determining whether arbitration applies and should not allow the parties to divide their disputes between the court and an arbitrator.” Fromm v MEEMIC Ins Co, 264 Mich App 302, 304; 690 NW2d 528 (2004).
• Courts should resolve any doubts in favor of arbitration. Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118, 127-129; 596 NW2d 208 (1999).  

 

Have you read justiceforall3's MSD response? He didn't include arbitration and stayed in court.

Justiceforall3_Updated.docx

 

[Brotherskeeper]

              @castle You will need to respond (admit or deny) to paragraphs 1-9 of plaintiff's motion. Here is how justiceforall3 responded to each paragraph in his Plaintiff's motion, which was followed by his Brief in opposition to the motion: (formatting is off)

<<Court Caption Heading here>>

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION

 

     NOW COMES Defendant in Pro Per Justiceforall3, in Pro Per, and responds to all of the allegations made in the Plaintiff’s Motion for Summary Disposition under MCR 2.116(C)(9) and/or (10) and states as follows:

1.  Defendant admits Plaintiff brought its motion under MCR 2.116 (C)(9) and/or (10).Defendant denies it he did not plead a valid defense to Plaintiff's Complaint allegations.

2.  Defendant, after receipt of Plaintiff’s written consent, filed and served its his Second Amended Answer along with a timely counter affidavit denying Plaintiff's account stated claim, in full compliance with MCL 600.2145.  Defendant denies it he failed to assert facts giving rise to genuine issues of material fact for trial, for reasons more fully explained in Defendant's the attached brief.

3. Defendant admits Plaintiff's Complaint is based on an Affidavit of Account Stated which was attached to Plaintiff’s the Complaint, and which is incorporated herein by reference (MCL 600.2145). Defendant asserts that Plaintiff filed an untimely and legally insufficient affidavit under MCL 600.2145, and MCR 2.119( B ). Defendant denies Plaintiff has established prima facie evidence of an account stated. Defendant asserts it he has established prima facie evidence of the absence of assent to an account stated between him it and Plaintiff.

4.  Defendant admits Plaintiff attached as Exhibit A only a portion of the Chain of Title.  Plaintiff has failed to produce competent admissible evidence of a valid assignment of title from Plaintiff’s assignor Heritage First USA.  Defendant denies an incomplete chain of assignment of hearsay documents is competent evidence to verify Plaintiff's ownership of the Defendant's alleged account, or to demonstrate Plaintiff's standing to adjudicate its claims.

5.  Defendant denies as untrue Plaintiff's allegations that attached as Exhibit B are copies of detailed account statements that were sent to the Defendant. Plaintiff has failed to produce competent admissible evidence of a valid assignment of title from Plaintiff’s assignor Heritage First USA, or a qualified witness to attest to the authenticity, trustworthiness, integrity and accuracy of the purported statements.                             

     WHEREFORE, Defendant in Pro Per Justiceforall3 respectfully requests this Honorable Court deny Plaintiff's Motion for Summary Disposition. If it appears to this Honorable Court that the Defendant, rather than the Plaintiff, is entitled to judgment, render judgment in favor of the Defendant under MCR 2.116(I)(2).

 

                                                                                               RESPECTFULLY SUBMITTED,

           

 

Dated: August 4, 2014                                                Justiceforall3

                                                                                    Defendant, Pro Se

[castle]

Hello all,

Feedback wanted, I am currently working on my brief.

Thank you

 

 

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY DISPOSITION

NOW COMES Defendant in Pro Per XXXXX in Pro Per, and responds to all of the allegations made in the Plaintiff’s Motion for Summary Disposition under MCR 2.116(C)(9) and/or (10) and states as follows:

    1.  Defendant admits Plaintiff brought its motion under MCR 2.116 (C)(9) and/or (10). Defendant denies Plaintiff has established Defendant’s ownership of unpaid credit card account and breach of conduct. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced business records and an affidavit attached to the complaint.

    2.  Defendant denies Plaintiff has established Defendant entered into a credit card agreement with plaintiff’s assignor. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the business records and an affidavit attached to the complaint.

3. Defendant denies Plaintiff has established Defendant accepted the terms and conditions of the credit card agreement by using the credit card and making payments. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the business records, and an affidavit attached to the complaint. Plaintiff does not show that defendant made or authorized the use of a credit card for charges claimed. Plaintiff has provided no evidence the defendant made a purchase on this alleged account. Plaintiff has provided no evidence the defendant made any payments on this alleged account.

4. Defendant denies Plaintiff has established Defendant accepted the terms and conditions of the account and was to maintain monthly payments or pay balance in full. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the business records, proof of payments and/or purchases, and an affidavit attached to the complaint.    

5. Defendant denies Plaintiff has established Defendant defaulted on the terms and conditions of the account by failing to pay as promised. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the business records, and an affidavit attached to the complaint. Defendant denies Plaintiff has established prima facie evidence of an account stated. Defendant asserts it he has established prima facie evidence of the absence of assent to an account stated between him and Plaintiff. Defendant admits Plaintiff attached as Exhibit C only a portion of the Chain of Title. Plaintiff has failed to produce competent admissible evidence of a valid assignment of title from Plaintiff’s assignor Cavalry SPV I, LLC.  Defendant denies an incomplete chain of assignment of hearsay documents is competent evidence to verify Plaintiff's ownership of the Defendant's alleged account, or to demonstrate Plaintiff's standing to adjudicate its claims. Defendant denies as untrue Plaintiff's allegations that attached as Exhibit C are copies of detailed account statements that were sent to the Defendant. Plaintiff has failed to produce competent admissible evidence of a valid assignment of title from Plaintiff’s assignor Cavalry SPV I, LLC, or a qualified witness to attest to the authenticity, trustworthiness, integrity and accuracy of the purported statements.

6. Defendant denies there is currently due and owing to Cavalry SPV I, LLC the sum of $X,XXX.XX plus interest, costs, and attorney fees. Plaintiff does not show that defendant made or authorized the use of a credit card for charges claimed. Plaintiff has not proven the amount of the alleged account is valid or accurate. Plaintiff has provided no evidence the defendant made a purchase on this alleged account.

7.  Defendant admits Plaintiff brought its motion under MCR 2.116 (C)(9) and/or (10). Defendant denies there is currently due and owing to Cavalry SPV I, LLC the sum of $1,323.76 plus interest, costs, and attorney fees. Plaintiff does not show that defendant made or authorized the use of a credit card for charges claimed. Plaintiff has not proven the amount of the alleged account is valid or accurate. Plaintiff has provided no evidence the defendant made a purchase on this alleged account.

8. Defendant denies the Answer submitted fails to refute an obligation to the Plaintiff. Defendant denied all nine complaints in the Answer submitted in response to the original Complaint.

9.  Defendant denies that he failed to raise a valid defense, affirmitive or otherwise to Plaintiff's Complaint allegations. Defendent properly asserted the existence of an agreement to arbitrate as a valid affirmative defense in a timely manner. MCR 2.111(F)(3)(a)(b).

 

WHEREFORE, Defendant in Pro Per XXXXXX respectfully requests this Honorable Court deny Plaintiff's Motion for Summary Disposition. If it appears to this Honorable Court that the Defendant, rather than the Plaintiff, is entitled to judgment, render judgment in favor of the Defendant under MCR 2.116(I)(2).

 

AFFIRMATIVE DEFENSES

    1. Defendant asserts and evokes the private arbitration clause within the subject card agreement and compels the court to order this case to JAMS arbitration and stay the case until the completion of arbitration.

    The subject card agreement furthermore states that either party “may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy.”

The general policy of this State is favorable to arbitration. The burden is on the party seeking to avoid the agreement, not the party seeking to enforce the agreement. Fromm v Meemic Ins Co, 264 Mich App 302, 305; 690 NW2d 528 (2004).