Chubutta

Being sued by PRA in Michigan

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I have been getting some great info on here, but I think it's time I ask for help from all the great people on this board.....

1. Who is the named plaintiff in the suit?

PRA

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

3. How much are you being sued for?

$5500

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

Synchrony Bank 

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

Yes

6. How were you served? (Mail, In person, Notice on door)

In Person

7. Was the service legal as required by your state?

Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Within SOL

11. When did you open the account (looking to establish what card agreement may be applicable)?

2018

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). I answered the complaint.  A Pre Trial is set for August as well a hearing for Plaintiffs Motion For Summary Disposition.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

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?

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

Included with the complaint was a few account statements from OC, a bill of sale with Synchrony Bank that lists absolutely nothing about my specific account, attached to the bill of sale is just a basic excel looking spreadsheet. They also included a Affidavit from someone who is employed by PRA saying they have knowledge of my account and access to the business records of my account.

18.  How did you find out about this site?

Google

I made the mistake of not sending an affidavit with my answer. I wish I would have known how important this was in Michigan before I sent my answer!!

In my answer I claimed that PRA has a lack of standing as they fail to show they are the owner of the debt alleged. I also attacked the affidavit because they are an employee of PRA and not the OC. I also mentioned  MCL 600.2145. because the affidavit included was made long before the complaint was filed and therefore cannot be considered prima facie evidence of indebtness.

 

I received a Pre-trial conference date, which got rescheduled and pushed out 2 times due to Covid 19. I recently just received  a Motion for Summary Disposition. One new piece of evidence that the plaintiff included was an affidavit on the actual bill of sale agreement from an employee who works for the OC. In the affidavit it mentions at the end that if the debtor(which they refer with my name) referenced above isn't from a (specific state) then the statement doesn't pertain. The state they mention is one I am not a resident of.

I don't want to list too much information on here publicly so I am hoping what I have included is at least enough that will draw some help. and get a discussion going.  I wish I would have found this site sooner! I appreciate any help or discussion regarding this matter. Thank you!!!

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I forgot to mention that my latest Pre-trial and the hearing for the Summary Disposition has been moved sooner than previously scheduled via Zoom instead of in person. Does anyone know if you can reject to this?

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Is this an Account Stated cause of action? 

Did you file an answer with any affirmative defenses?

Did you and the plaintff exchange written discovery requests?

Did you file a written opposition to the MSD?

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44 minutes ago, Brotherskeeper said:

Is this an Account Stated cause of action? 

Yes

Did you file an answer with any affirmative defenses?

Yes. Lack of Standing 

Did you and the plaintff exchange written discovery requests?

No

Did you file a written opposition to the MSD?

No, just recieved the MSD , assumed that would be the next course of action, but wanted to seek further advice from the knowledgeable folks of this board!

 

 

 

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Attached is the most recent affidavit regarding the Bill of Sale. This was sent with the MSD. Can anyone clarify what this exactly means if I am not a resident of California or why it's mentioned?

20200715_180818.jpg

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How long ago did you file your answer? More than 14 days ago? If more than 14 days ago, you might consider asking leave to file an amended answer to include the existence of an agreement to arbitrate as an affirmative defense. Synchrony has a a very favorable arb provision in it.

On an account stated cause of action, no attached copy of the original contract or credit card agreement is required. Under MCL 600.2145, an affidavit with an account statement attached is enough. An affidavit dated outside of the 10 day window isn't invalid, it just doesn't have prima facie weight--if argued properly. Under this account stated statute, you should have submitted your own affidavit with your answer. 

When is the deadline to respond to the MSD? 

42 minutes ago, Chubutta said:

Can anyone clarify what this exactly means if I am not a resident of California or why it's mentioned?

(I am not an attorney) The State of California has its own requirements for a valid affidavit, which require it to be sworn under penalty of perjury under the laws of the state of California. That's why that statement is included. When this affidavit was drafted, the affiant had no idea if it was to be used in a California court or not. 

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Yes it has been long past 14 days since I filed my answer.  I will have to look more into arbitration. 

Regarding the deadline to respond to a MSD in Michigan states "(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing." So I have roughly a month until that deadline. 

Is arbitration my best route?  

 

Regarding the bill of sale affidavit, it references me the debter, not the afiant, needing to be a resident of CA, otherwise the statement doesnt pertain. Am I just not comprehending that correctly?

 

Thanks so much for your help!

 

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2 hours ago, Chubutta said:

Regarding the bill of sale affidavit, it references me the debter, not the afiant, needing to be a resident of CA, otherwise the statement doesnt pertain. Am I just not comprehending that correctly?

If this affidavit is to be used in court in California, it needs to be a valid affidavit under California law. California law requires an affidavit to have that statement if the affidavit was made outside the state. If the "debter" is not a California resident, then the statement "under the laws of the state of California" does not apply; the laws of the state you're being sued in determine the validity of the affidavit. (IANAL)

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If  the court moves my date for pre trial and hearing on motion for disposition 21 days earlier via zoom,  I just basically lost all that time to file my response to the MSD?  In the plaintiffs notice of hearing it states the later date.

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@Chubutta Here are the MCR for MSD. A MSD hearing can't be scheduled for any earlier than 28 days after you were served the Complaint. The MSD and any briefs must be filed and served at least 21 days before the hearing. Your response to the MSD must be filed and served at least 7 days before the hearing. Unless the court sets a different time. 

Rule 2.116 Summary Disposition

(B) Motion.

(1) A party may move for dismissal of or judgment on all or part of a claim in accordance with this rule. A party against whom a defense is asserted may move under this rule for summary disposition of the defense. A request for dismissal without prejudice under MCL 600.2912c must be made by motion under MCR 2.116 and MCR 2.119.

(2) A motion under this rule may be filed at any time consistent with subrule (D) and subrule (G)(1), but the hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.

 

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:

(1) The grounds listed in subrule (C)(1), (2), and (3) must be raised in a party's first motion under this rule or in the party's responsive pleading, whichever is filed first, or they are waived.

(2) The grounds listed in subrule (C)(5), (6), and (7) must be raised in a party's responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party's first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

(3) The grounds listed in subrule (C)(4) and the ground of governmental immunity may be raised at any time, regardless of whether the motion is filed after the expiration of the period in which to file dispositive motions under a scheduling order entered pursuant to MCR 2.401.

(4) The grounds listed in subrule (C)(8), (9), and (10) may be raised at any time, unless a period in which to file dispositive motions is established under a scheduling order entered pursuant to MCR 2.401. It is within the trial court’s discretion to allow a motion filed under this subsection to be considered if the motion is filed after such period.

 

(G) Affidavits; Hearing.

(1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule.

(a) Unless a different period is set by the court,

(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and

(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.

(iii) the moving party or parties may file a reply brief in support of the motion. Reply briefs must be confined to rebuttal of the arguments in the nonmoving party or parties’ response brief and must be limited to 5 pages. The reply brief must be filed and served at least 4 days before the hearing.

(iv) no additional or supplemental briefs may be filed without leave of the court.

(b) If the court sets a different time for filing and serving a motion, or a reply brief, its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.

(c) Except where electronic filing has been implemented, a copy of a motion, response (including brief and any affidavits), or reply brief filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE'S COPY on the cover sheet; that notation may be handwritten. Where electronic filing has been implemented, a judge’s copy shall not be required.

(2) Except as to a motion based on subrule (C)(8) or (9), affidavits, depositions, admissions, or other documentary evidence may be submitted by a party to support or oppose the grounds asserted in the motion.

(3) Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion are required

(a) when the grounds asserted do not appear on the face of the pleadings, or

(b) when judgment is sought based on subrule (C)(10).

(4) A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.

(5) The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1)-(7) or (10). Only the pleadings may be considered when the motion is based on subrule (C)(8) or (9).

(6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.

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