Being Sued by Midland in Michigan

[BitsyM]

The latest scene in the **** show that is my life is-

Summons and complaint received served, in person, to me yesterday

Being sued by Midland for a past account with JC Penney/Synchrony Bank formerly GE Capital.

Court venue is Midland Summons and Complaint_Redacted.pdf correct.  

Attached summons and complaint, along with the docs that were included.  My redactions are in pink.  On the last page of their supporting docs, the address that they had for me, redacted in pink, is an address that I lived at 3 years ago.

Midland Summons and Complaint_Redacted.pdfMy first question is, when I answer do I include my denials and affirmative defenses at this time, or do I first just answer and file a motion to dismiss for improper venue based on my residence?

Also, how do I serve the Plaintiff's attorney when the only address provided is a PO Box?  If I were to send anything via CMRRR doesn't it have to be a physical address?  Can I only send correspondence via first class mail in this case?

 

Midland Supporting Docs_Redacted.pdf

[Brotherskeeper]

35 minutes ago, BitsyM said:

Court venue is Midland Summons and Complaint_Redacted.pdf correct.  

If the court venue is correct, please explain the statement below. 

35 minutes ago, BitsyM said:

do I first just answer and file a motion to dismiss for improper venue based on my residence?

600.1621 Venue; determination; exceptions.
Sec. 1621.

   Except for actions provided for in sections 1605, 1611, 1615, and 1629, venue is determined as follows:
  (a) The county in which a defendant resides, has a place of business, or conducts business, or in which the registered office of a defendant corporation is located, is a proper county in which to commence and try an action.
  (b) If none of the defendants meet 1 or more of the criteria in subdivision (a), the county in which a plaintiff resides or has a place of business, or in which the registered office of a plaintiff corporation is located, is a proper county in which to commence and try an action.
  (c) An action against a fiduciary appointed by court order shall be commenced in the county in which the fiduciary was appointed.

35 minutes ago, BitsyM said:

Also, how do I serve the Plaintiff's attorney when the only address provided is a PO Box?  If I were to send anything via CMRRR doesn't it have to be a physical address?  Can I only send correspondence via first class mail in this case?

Rule 2.107 Service and Filing of Pleadings and Other Documents

(C) Manner of Service. Except under MCR 1.109(G)(6)(a), service of a copy of a document on an attorney must be made by delivery or by mailing to the attorney at his or her last known business address or, if the attorney does not have a business address, then to his or her last known residence address.Except under MCR 1.109(G)(6)(a), service on a party must be made by delivery or by mailing to the party at the address stated in the party's pleadings.

(3) Mailing. Mailing a copy under this rule means enclosing it in a sealed envelope with first class postage fully prepaid, addressed to the person to be served, and depositing the envelope and its contents in the United States mail. Service by mail is complete at the time of mailing.

[BitsyM]

@Brotherskeeper Court venue is incorrect.  I don't know why my attachment showed up there.  I live in the 52-1 court district and that was filed in 35th district.

[Brotherskeeper]

39 minutes ago, BitsyM said:

I live in the 52-1 court district and that was filed in 35th district.

The 35th district is in Wayne County. The 52-1 is in Oakland County. The courts are about what, 30 minutes drive apart? Is this a FDCPA 15 USC 1692j violation? @BV80 may know. 

§ 811.  Legal actions by debt collectors

a) Venue
Any debt collector who brings any legal action on a debt against any consumer shall --

(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity --

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

[BV80]

2 hours ago, Brotherskeeper said:

The 35th district is in Wayne County. The 52-1 is in Oakland County. The courts are about what, 30 minutes drive apart? Is this a FDCPA 15 USC 1692j violation? @BV80 may know. 

§ 811.  Legal actions by debt collectors

a) Venue
Any debt collector who brings any legal action on a debt against any consumer shall --

(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity --

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

The lawsuit could be filed in the county where the account was opened.  If the account was not opened in the county where the lawsuit was filed, it’s an FDCPA violation.  

@BitsyM

This is from the 35th district court website.

The 35th District Court serves the five communities of Canton, Plymouth City, Plymouth Township, Northville City, and Northville Township. We currently have three judges serving. The court is located in Plymouth, Michigan, in Wayne County.

Do you live in one of those communities?  Did you open the account in one of those communities?

[BitsyM]

@BV80 Account was opened when I was living in St.Louis, MO.  I live in Northville City, but the very small area that is Oakland County.  

 

[BV80]

7 minutes ago, BitsyM said:

@BV80 Account was opened when I was living in St.Louis, MO.  I live in Northville City, but the very small area that is Oakland County.  

 

Northville City is in both counties?

 

[BitsyM]

@BV80Yes.  Only a quarter mile or so, but my house is in that small area.  Right on the border of Novi.

Involved in a child support/custody situation right now and Oakland County because of my residence.  My ex is in Northville Twp, Wayne County.

[BV80]

20 minutes ago, BitsyM said:

@BV80Yes.  Only a quarter mile or so, but my house is in that small area.  Right on the border of Novi.

Involved in a child support/custody situation right now and Oakland County because of my residence.  My ex is in Northville Twp, Wayne County.

Well, due to your community being in both counties, filing in the wrong county could possibly be considered a bona fide error, and the plaintiff would not be held responsible.

[Brotherskeeper]

@BitsyM If you plan on changing the venue to the 52-1 District Court, you would file a motion for change of venue before you file an answer. Here is a fill-in form for a [proposed] order for the judge. I don't know if Midland would first stipulate to the proposed order or not. 

https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/mc316.pdf

RULE 2.223 CHANGE OF VENUE; VENUE IMPROPER
"(A) Motion; Court's Own Initiative. If the venue of a civil action is improper, the court
(1) shall order a change of venue on timely motion of a defendant, or
(2) may order a change of venue on its own initiative with notice to the parties and
opportunity for them to be heard on the venue question.
If venue is changed because the action was brought where venue was not proper, the
action may be transferred only to a county in which venue would have been proper.
(B) Costs; Fees.
(1) The court shall order the change at the plaintiff's cost, which shall include the
statutory filing fee applicable to the court to which the action is transferred, and which
may include reasonable compensation for the defendant's expense, including
reasonable attorney fees, in attending in the wrong court.
(2) After transfer, no further proceedings may be had in the action until the costs and
expenses allowed under this rule have been paid. If they are not paid within 56 days
from the date of the order changing venue, the action must be dismissed by the court to
which it was transferred."
 

 

[BitsyM]

@Brotherskeeper I am filing my motion for change of venue and notice of hearing today.  I already got the date from the 35th District Court.  I will also include proof of service when I file.  

My questions are-

1) the fill-in order that you linked to, should I include that with my filing with the basic information filled out for the Judge in advance?

2) the hearing for the motion is scheduled after my answer to the summons and complaint would be due for the 21 day deadline.  Should I file that with the court that is not in my county?  The one that I'm motioning to move the venue from?

[Brotherskeeper]

45 minutes ago, BitsyM said:

 

@Brotherskeeper I am filing my motion for change of venue and notice of hearing today.  I already got the date from the 35th District Court.  I will also include proof of service when I file.  

My questions are-

1) the fill-in order that you linked to, should I include that with my filing with the basic information filled out for the Judge in advance?

Caveat: I am not a lawyer and have zero experience with change of venue. I would write in [PROPOSED] above the "ORDER FOR CHANGE OF VENUE" and fill in the info. Be sure and send a copy of this proposed order to the plaintiff. 

45 minutes ago, BitsyM said:

 

2) the hearing for the motion is scheduled after my answer to the summons and complaint would be due for the 21 day deadline.  Should I file that with the court that is not in my county?  The one that I'm motioning to move the venue from?

I honestly don't know the answer to this. When is the deadline to file an answer?

[BitsyM]

Attached in the Motion and Notice of Hearing

Review.pdf

[BitsyM]

@Brotherskeeper Thank you. 

 

I'm not going to risk it and will just file an answer just to be safe.

[Brotherskeeper]

2 minutes ago, BitsyM said:

 

@Brotherskeeper Thank you. 

 

I'm not going to risk it and will just file an answer just to be safe.

Please remember to deny that venue is proper. If I were in your shoes, I would call a legal aid hotline or consumer attorney and ask about this issue. As was discussed, filing in the wrong venue can be a FDCPA violation. BV80 mentioned that a bona fide error defense may come into play because of your proximity to a little sliver of town in Wayne County. Funny that your previous JDB filed in the proper court. 

[BitsyM]

@Brotherskeeper I will definitely take that advice and call for legal advice.  I'll report back with my findings, in case anyone else should ever run into this problem.

[Brotherskeeper]

This is from the Civil Proceedings Benchbook Page 2-32: 

2. Timing “A motion for change of venue must be filed before or at the time the defendant files an answer.” MCR 2.221(A). Failure to expeditiously schedule the venue motion for hearing does not waive the venue challenge as long as the motion is timely filed. Hills & Dales Gen Hosp v Pantig, 295 Mich App 14, 19 (2011). However, a late motion can be considered “if the court is satisfied that the facts on which the motion is based were not and could not with reasonable diligence have been known to the moving party more than 14 days before the motion was filed.” MCR 2.221(B). If a party fails to object to venue within the time limits set forth in MCR 2.221, he or she waives the right to object. MCR 2.221(C). “The failure to timely raise a claim of improper venue in the lower court precludes consideration of the claim on appeal.” Saba v Gray, 111 Mich App 304, 307 (1981), citing Bd of Co Rd Comm’rs of Berrien Co v Marineland Dev Co, 17 Mich App 503 (1969). Raising improper venue as an affirmative defense will not satisfy the requirement that a change of venue motion be filed. Bursley v Fuksa, 164 Mich App 772, 779 (1987).'

Rule 2.221 Motion for Change of Venue

(A) Time to File. A motion for change of venue must be filed before or at the time the defendant files an answer.

(B) Late Motion. Untimeliness is not a ground for denial of a motion filed after the answer if the court is satisfied that the facts on which the motion is based were not and could not with reasonable diligence have been known to the moving party more than 14 days before the motion was filed.

(C) Waiver. An objection to venue is waived if it is not raised within the time limits imposed by this rule.

Rule 2.223 Change of Venue; Venue Improper

(A) Motion; Court's Own Initiative. If the venue of a civil action is improper, the court

(1) shall order a change of venue on timely motion of a defendant, or

(2) may order a change of venue on its own initiative with notice to the parties and opportunity for them to be heard on the venue question.

If venue is changed because the action was brought where venue was not proper, the action may be transferred only to a county in which venue would have been proper.

(B) Costs; Fees.

(1) The court shall order the change at the plaintiff's cost, which shall include the statutory filing fee applicable to the court to which the action is transferred, and which may include reasonable compensation for the defendant's expense, including reasonable attorney fees, in attending in the wrong court.

(2) After transfer, no further proceedings may be had in the action until the costs and expenses allowed under this rule have been paid. If they are not paid within 56 days from the date of the order changing venue, the action must be dismissed by the court to which it was transferred.

(3) If the jury fee has been paid, the clerk of the transferring court shall forward it to the clerk of the court to which the action is transferred.

(4) MCL 600.1653 applies to tort actions filed on or after October 1, 1986.

[Brotherskeeper]

1 hour ago, BitsyM said:

Attached in the Motion and Notice of Hearing

Review.pdf 61.68 kB · 1 download

IANAL. If I were doing this, I might cite MCR 2.221 and MCR 2.223 in the motion as grounds.