Summons From Portfolio Recovery; need help in Michigan :(

[Neenur]

hi guys first off i'm really happy i found this forum, it seems like there is a lot of great people and resources here so thank you for all that you do here.

sadly PRA served me with a summons on 05/14/19 and i have been in a tailspin as i believe i have about a week to answer (21 days total time allowed).  i've been watching youtube videos and self-help sites and did come up with an answer with a little help (not filed yet) but hiring an attorney is just not affordable for me.  i did ask some questions from a local attorney but he said a motion to strike the affidavit and discovery was an expensive and difficult process to hire for/try to do so he suggested i file a counter-affidavit with my answer.

i have no assets beside a car i drive that was deemed a total loss by issurance company and work in restaurant for cash tips.

with the only exhibit A they provided in the form of the affidavit they claim that they acquired the debt from the account seller (who is noted as 5/3 bank in first paragraph) which can't be true as the debt has changed hands a few times before getting to PRA.

anyhow here's what i got so far...  i'd really appreciate any help/opinions anyone has to offer.

[Brotherskeeper]

@Neenur Please explain what kind of account this was with the original creditor.

Do you have a copy of the original agreement from when it was opened?

The only thing attached to the Complaint as Exhibit A is that affidavit? No monthly account statement or invoice?

[Neenur]

3 hours ago, Brotherskeeper said:

@Neenur Please explain what kind of account this was with the original creditor.

Do you have a copy of the original agreement from when it was opened?

The only thing attached to the Complaint as Exhibit A is that affidavit? No monthly account statement or invoice?

@Brotherskeeper  hi friend and thank you for responding;  this was an unsecured credit card with the original creditor.

Sadly. I do not have a copy of the original agreement from when it was opened but i did find a recent agreement online as well as a 2009 dated agreement.  I believe the account was opened in 2006 when i started working there (2006-2007).

(2018)  https://www.consumerfinance.gov/credit-cards/agreements/issuer/fifth-third-bank/

(2009)  https://www.federalreserve.gov/CreditCardAgreementsContent/creditcardagreement_608.PDF

And yes, the only thing attached to the Complaint as Exhibit A is that affidavit and nothing else.

[Brotherskeeper]

1 hour ago, Neenur said:

this was an unsecured credit card with the original creditor.

For $18K-plus I thought it could be a loan. When do you think the account was last in good standing, or when do you think the last payment was? The credit card agreement from that time period would be applicable to the account. There is an arbitration clause in both agreements you linked above. The 2018 agreement states the forum should be AAA. Have you read about using the arbitration strategy in the pinned thread: 

@fisthardcheese @Harry Seaward any thoughts on OP using arb (agreement says with AAA) for a $18K credit card debt PRA is suing on? 

[Harry Seaward]

Aside from a miracle, arbitration is your best bet, but with the way things have been going, i wouldn't be at all surprised if they come along for the ride. 

[Debtguy393939]

For $18k balance, even a debt buyer might follow along for the ride as a previous poster mentioned. As for what Card Member Agreement applies, I believe it is the CMA that was in place at C/O, 99% sure that is the case across the board, unless you find some random judge who feels differently.  I wish you luck, even though they might follow, Arb is prob your best bet.

[fisthardcheese]

12 hours ago, Brotherskeeper said:

any thoughts on OP using arb (agreement says with AAA) for a $18K credit card debt PRA is suing on? 

I would absolutely use arbitration over court, but I would prepare to fight them just as you would in court (or more so).  If it were me, I would search my credit report and phone records with a fine tooth comb to find any potential violations to use in counter claims when I file AAA and I would demand up front an in-person hearing and a request for full discovery.  I would make sure AAA does not use their fast tracking "documents only" default for this one.

[Neenur]

@Brotherskeeper @Debtguy393939 @fisthardcheese @Harry Seaward

hey guys i just wanted to thank you for all of your replies and advice; I am currently looking into the arbitration process and trying to get the rules specific to my court and will get back to you all.  In the end it is looking like bankruptcy for me is an absolute, but I'd like to at least put up a fight and leave a dent on their side...

[Brotherskeeper]

On 5/27/2019 at 7:30 PM, Neenur said:

PRA served me with a summons on 05/14/19 and i have been in a tailspin as i believe i have about a week to answer (21 days total time allowed). 

(IANAL) So the Answer, affidavit (to counter the account stated claim and attach the 5/3 account agreement to) and copy of 5/3 cardholder agreement, with the certificate of service of mailing to plaintiff, have to be filed with the court by Tuesday, 6/4, and served upon plaintiff. In your Answer, under a separate heading titled AFFIMATIVE DEFENSES, you will need to include an agreement to arbitrate as a defense. Doing this will preserve your right to file a motion to compel arbitration soon after filing your Answer. 

 

[Pericles]

On 5/28/2019 at 1:35 PM, Neenur said:

... the only thing attached to the Complaint as Exhibit A is that affidavit and nothing else.

The allegations in the complaint describe PRA as the 'successor in interest', while the affidavit (a boilerplate form document) defines PRA as the "Account Assignee" and fifth third as the "Account Seller".

While it is possible for a 'successor in interest' to be the immediate assignee of/by the OC, a complaint often contains the successor language when it is not the case that the plaintiff is the immediate assignee.

[Brotherskeeper]

@Neenur Here is the arb section from the 2018 FIFTH THIRD BANK CARD AGREEMENT for Mastercard® and Visa® Card Accounts for reference. I don't know if this is the type of account you had. If not, you need to find the correct one to attach to your Answer and affidavit.

"ARBITRATION AND JURY TRIAL WAIVER
NOTE: If you are a Covered Borrower under the Military Lending Act Regulations, you are not required to submit to arbitration in the case of a dispute.
If you were a Covered Borrower under the Military Lending Act Regulations with regard to any prior agreement, this arbitration clause does not cover any claims related to that prior agreement.
29. Claim. Any claim, dispute or controversy between you and us arising from or relating to this Agreement, any prior agreement that you may have had with us or the relationships resulting from the Agreement or any prior agreement, including the validity, enforceability or scope of this provision, the Agreement or any prior agreement. Claim includes claims of every kind and nature, including but not limited to initial claims, counterclaims, cross-claims and third-party claims and claims based upon contract, tort, fraud and other intentional torts, statute, common law and equity. The term Claim is to be given the broadest possible meaning and includes, by way of example and without limitation, any claim, dispute or controversy that arises from or relates to (a) the Account created by the Agreement or any prior agreement or any balances on the Account, (b) the Card, (c) the EFT services or Ready Reserve Overdraft Protection feature, (d) advertisements, promotions or oral or written statements related to the Card, the Account or the terms of financing, and (e) your use of the Card and the Account.

If you are a Covered Borrower, you and we will only arbitrate if you choose to arbitrate. We cannot elect to arbitrate a Claim with a Covered Borrower. If you are not a Covered Borrower, you and we each agree that any Claim will be arbitrated instead of litigated in court under the circumstances and procedures set forth below. If arbitration is elected, any Claim will be resolved pursuant to this provision and the American Arbitration Association (“AAA”) rules and procedures (“Rules”) in effect at the time the Claim is filed. (If for any reason the AAA is unable or unwilling or ceases to serve as arbitration administrator, another nationally recognized arbitration organization utilizing similar rules and procedures will be substituted by us.)

With respect to Claims covered by this provision, if you have asserted a Claim in a lawsuit in court you may elect arbitration with respect to any Claim subsequently asserted in that lawsuit by any other party or parties. If we have asserted a Claim in a lawsuit in court, we may elect arbitration with respect to any Claim subsequently asserted in that lawsuit by any other party or parties, only if no other party is a Covered Borrower.

IF ARBITRATION IS CHOSEN WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM, OR TO ENGAGE IN PREARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR IN THE AAA RULES. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION. EXCEPT AS SET FORTH BELOW, THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.

The AAA Rules and forms of the AAA may be obtained by calling 1-800-778-7879 or by visiting the AAA’s Web site at www.adr.org. All Claims must be filed at any AAA office.

There will be no authority for any Claims to be arbitrated on a class action basis. Any arbitration hearing that you attend will take place in the federal judicial district in which you reside. At your written request, we will temporarily advance up to $500 towards the filing, administrative and/or hearing fees for any Claim that you may file against us after you have paid an amount equivalent to the fee, if any, for filing such a Claim in state or federal court (whichever is less) in the judicial district in which you reside. At the conclusion of the arbitration, the arbitrator will decide who will ultimately be responsible for paying the filing, administrative and/or hearing fees in connection with the arbitration. Unless inconsistent with Applicable Law, each party will bear the expense of that party’s attorneys’, experts’ and witness fees, regardless of which party prevails in the arbitration.

This provision is made pursuant to a transaction involving interstate commerce and will be governed by the Federal Arbitration Act, 9 U. S. C. §§ 1 et seq., as amended (“FAA”). The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by
the FAA and except that, if the amount in controversy exceeds $100,000, any party can appeal the award to a three-arbitrator panel administered by the AAA, which will reconsider de novo any aspect of the initial award requested by the appealing party. The decision of the panel will be by majority vote. The costs of such an appeal will be borne by the appealing party regardless of the outcome of the appeal.

As solely used in this provision, the terms we and us will for all purposes mean Fifth Third Bank, all of its parents, wholly- or majority-owned subsidiaries, affiliates, predecessors, successors and assigns, and all of their independent contractors, agents, employees, directors and representatives.

This provision will survive termination of your Account, as well as the repayment of all outstanding amounts incurred in connection with this Agreement. If any portion of this provision is deemed invalid or unenforceable under any law or statute consistent with the FAA, it will not invalidate the remaining portions of this arbitration provision or the Agreement. In the event of a conflict or inconsistency between the AAA Rules and  this arbitration provision, this provision will govern."

 

(IANAL) Here is an example of what other Michigan posters have used as an affirmative defense when asserting arbitration and attaching the card agreement as an exhibit. You may want to include lack of standing and failure to state a claim as additional affirmative defenses. 

 

AFFIRMATIVE DEFENSES

AFFIRMATIVE DEFENSE 1

An agreement to arbitrate these disputes binds the parties and bars Plaintiff's claims from being pursued in court upon election of private arbitration by either party. Defendant has elected arbitration in the American Arbitration Association ("AAA") as per the Fifth Third Bank Card Agreement. A true copy of the applicable Fifth Third Bank Card Agreement with the Arbitration Section is attached to Defendant's Affidavit as Exhibit A, filed herein. 

AFFIRMATIVE DEFENSE II

Lack of standing.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced sworn business records attached to the Complaint or Affidavit to show the existence of a valid contract for the alleged account with Plaintiff's assignor and Plaintiff's ownership as assignee of Defendant's specific account. 

 

AFFIRMATIVE DEFENSE III

Failure to state a claim for which relief can be granted. Plaintiff does not have standing to assert this claim and has failed to state a cause of action for which relief can be granted. 

[Brotherskeeper]

@Neenur If nothing was attached to the Complaint other than the PRA affidavit (Exhibit A), then there was no statement of the account attached to the affidavit. In your (counter-) affidavit at paragraph 4, you refer to a statement of account for account number (redacted) by PRA that you did not receive. This will need to be fixed. You will also need to add a paragraph on the Fifth Third Bank agreement that you're attaching as your exhibit, as it becomes a part of your pleading in your affirmative defense 1. (IANAL)

Best to post your draft as soon as you can, as your deadline is Tuesday, correct? 

[Neenur]

22 hours ago, Pericles said:

The allegations in the complaint describe PRA as the 'successor in interest', while the affidavit (a boilerplate form document) defines PRA as the "Account Assignee" and fifth third as the "Account Seller".

While it is possible for a 'successor in interest' to be the immediate assignee of/by the OC, a complaint often contains the successor language when it is not the case that the plaintiff is the immediate assignee.

@Pericles, thank you for your input friend.  I am assuming that you mean that these missing links in JDB transitions left out/disregarded in the affidavit are/is not a valid point to bring up as a point of argument as the majority of the complaint will be considered as a whole instead.  Ah the agony of defeat!

[Neenur]

@Brotherskeeper, you have no idea how much I appreciate your time, help and guidance here;  thank you so much for all of the information that you have compiled/sorted out for me above; it is a HUGE help and it means a lot to me.  My dog has fallen ill and I've been a bit preoccupied with seeing to her immediate treatment and recovery but I will be working on my drafts overnight and will post them up here tomorrow morning (05/31).  I believe I have until Monday 06/03 or Tuesday 06/04 to file things depending on whether the initial drop of date of 05/14 counts as day one or not; either way I will get them in sooner than later.  Thank you again friend

[fisthardcheese]

If you have 21 days, then you have until the 4th.  Even if it were to be one day late, that is usually not grounds for a default judgement.

[Brotherskeeper]

2 hours ago, Neenur said:

I believe I have until Monday 06/03 or Tuesday 06/04 to file things depending on whether the initial drop of date of 05/14 counts as day one or not; either way I will get them in sooner than later. 

You begin the 21-day count the day after you were served.

Rule 1.108 Computation of Time

In computing a period of time prescribed or allowed by these rules, by court order, or by statute, the following rules apply:

(1) The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order.

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 hours ago, Neenur said:

My dog has fallen ill and I've been a bit preoccupied with seeing to her immediate treatment and recovery 

I hope your dog is doing better. 

[Neenur]

hey guys, just an update here at last; i managed to get things in order yesterday and file my updated answer with affirmative defenses, counter affidavit, motion to compel arbitration per AAA, and a copy of what i believe is the actual true credit card statement with AAA that i found online that was issued/updated last in 2015 before the card was charged off later in 2016.

i did update my counter affidavit to note the attached true copy of my credit card statement and addressed PRA's conclusory affidavit statements regarding unfounded records/statements that they never attached for evidence.

i sent a copy of everything i filed (just one envelope of everything addressed to all 3 PRA attorneys certified mail) to the address that was listed on the original summons/claim under their names (which happened to be PRA's address as well) even though I see these attorneys are actually all in different states but alas this is what they listed their address as per the court documents.

i was researching motions to compel arbitration and it seemed in the michigan district courts here that it is may be likely to be granted so i will keep my fingers crossed.  once i hear back from the court (their may or may not be a hearing regarding this) i'll let you guys know and start the arbitration paperwork/process if the ruling is in my favor.

my dog - the vet gave me antibiotics for a possible upper respiratory infection via an x-ray.  i noticed a small papilloma that was forming on the inside of her lip just today via my own inspection indicating a struggling immune system.  i see l-lysine is the best thing i can get for this which many have had success with so i'm off to get it now.

[Brotherskeeper]

@Neenur When you get a chance, can you please post redacted copies of what you submitted to court? Did you include a proof of service certificate, proposed order for motion, notice of hearing form, and schedule a hearing date for your motion? If you didn't, you need to rectify it. 

Hope your pup is on the mend soon. 

[Neenur]

2 hours ago, Brotherskeeper said:

@Neenur When you get a chance, can you please post redacted copies of what you submitted to court? Did you include a proof of service certificate, proposed order for motion, notice of hearing form, and schedule a hearing date for your motion? If you didn't, you need to rectify it. 

Hope your pup is on the mend soon. 

@Brotherskeeper

the card agreement after exhibit B is here: https://docplayer.net/9046561-Fifth-third-bank-card-agreement-for-mastercard-and-visa-credit-card-accounts.html

ah geez, i didn't know about all this other stuff you just mentioned .  i noticed that in that additional affirmative defenses page i added gave reference to seeing exhibit "A" instead of "B" for the credit card agreement i attached to the packet( which i just changed for viewing here); do you think that will be a problem?

i did check the box and sign the certificate of service for the answer.  did i need a separate certificate of service for other things if everything was mailed together?  i have the certified mail slip with tracking number from the post office; does that count for anything?  

i did find the notice of hearing and motion form but didn't fill it out as the clerk said they would contact me in about a week about the motion that i filed separately but at the same time as the answer.

I'll work on looking up these things tonight and I'll stop by the court tomorrow to see if they can advise me of these other forms and how to rectify things.

thank you friend.

[Brotherskeeper]

@Neenur Certificate of service on MC-03 form is fine; court needs to see you served the other party the docs you're filing with the court. Your affidavit isn't an exhibit. A document referred to in your affidavit should be attached to the affidavit as an exhibit (marked as Defendant's Exhibit __). You have not stated any grounds under Michigan rules for your motion to compel. I wish you had used one of the many recent Michigan motions to compel or posted this before submitting. Goods news is you have 14 days from the time you submitted your answer to file an amended answer if any changes need to be made. 

@Harry Seaward @BV80 or @fisthardcheese I'm nervous that (page 3 of answer) Affirmative Defenses #4 and #7 state the contract is void and unenforceable. Neenur goes on to file a MTC arb to enforce the arb clause of a contract he claims is void and unenforceable. Should this be changed with an amended answer?

[Neenur]

3 hours ago, Brotherskeeper said:

@Neenur Certificate of service on MC-03 form is fine; court needs to see you served the other party the docs you're filing with the court. Your affidavit isn't an exhibit. A document referred to in your affidavit should be attached to the affidavit as an exhibit (marked as Defendant's Exhibit __). You have not stated any grounds under Michigan rules for your motion to compel. I wish you had used one of the many recent Michigan motions to compel or posted this before submitting. Goods news is you have 14 days from the time you submitted your answer to file an amended answer if any changes need to be made. 

@Harry Seaward @BV80 or @fisthardcheese I'm nervous that (page 3 of answer) Affirmative Defenses #4 and #7 state the contract is void and unenforceable. Neenur goes on to file a MTC arb to enforce the arb clause of a contract he claims is void and unenforceable. Should this be changed with an amended answer?

well i just can't win in life i think.  the motion is a lost cause then?  i will wait before i do anything else.  thank you friend

[Brotherskeeper]

1 hour ago, Neenur said:

 

well i just can't win in life i think.  the motion is a lost cause then?  i will wait before i do anything else.  thank you friend

I didn't say it was a lost cause. I'm seeking input to see if you need to file an amended answer. You can do this fairly easily within 14 days of having submitted your first answer. 

[BV80]

5 hours ago, Brotherskeeper said:

@Neenur Certificate of service on MC-03 form is fine; court needs to see you served the other party the docs you're filing with the court. Your affidavit isn't an exhibit. A document referred to in your affidavit should be attached to the affidavit as an exhibit (marked as Defendant's Exhibit __). You have not stated any grounds under Michigan rules for your motion to compel. I wish you had used one of the many recent Michigan motions to compel or posted this before submitting. Goods news is you have 14 days from the time you submitted your answer to file an amended answer if any changes need to be made. 

@Harry Seaward @BV80 or @fisthardcheese I'm nervous that (page 3 of answer) Affirmative Defenses #4 and #7 state the contract is void and unenforceable. Neenur goes on to file a MTC arb to enforce the arb clause of a contract he claims is void and unenforceable. Should this be changed with an amended answer?

#4 - The OP would have to prove the contract os void.  

The plaintiff is suing on an account stated claim.  While they could argue that arbitration is not possible because they are not suing on a contract claim, I think would be shooting themselves in the foot because they are relying on terms in the cardmember agreement to prove the amount they are claiming.   

#7 does not apply unless the OP’s state requires credit card agreements to be signed by both parties.  

[Brotherskeeper]

12 minutes ago, BV80 said:

 

#4 - The OP would have to prove the contract os void.  

The plaintiff is suing on an account stated claim.  While they could argue that arbitration is not possible because they are not suing on a contract claim, I think would be shooting themselves in the foot because they are relying on terms in the cardmember agreement to prove the amount they are claiming.   

#7 does not apply unless the OP’s state requires credit card agreements to be signed by both parties.  

@BV80 Are you saying that Neenur doesn't have to amend his answer to remove the #4 and #7 affirmative defenses? That he can still MTC arb on a contract he claims is unenforceable by PRA but enforceable by Neenur? Sorry to be so dense. 

[BV80]

50 minutes ago, Brotherskeeper said:

 

@BV80 Are you saying that Neenur doesn't have to amend his answer to remove the #4 and #7 affirmative defenses? That he can still MTC arb on a contract he claims is unenforceable by PRA but enforceable by Neenur? Sorry to be so dense. 

You’re not dense.  Neither one of us is an attorney.   ?

To be honest, I’m not sure.  I don’t think it would be necessary based upon the statute of frauds defense, but a MTC when you’ve claimed there’s no valid contract could be viewed as contradictory.   

I do know that if one does not support a defense in a lower court, it’s deemed abandoned in an appeal, but even if the OP no longer addresses the issue, I’m not sure if it would be deemed abandoned at this level.