momof3kids

Served Summons over 30 days ago - still answer? Midland Michigan

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I was served a summons from Midland Credit Mangement for a PayPal Mastercard debt of $6,800 on approximately 8/1??.  I reached out to my attorney who didn't get back to me for a long time due to Covid reasons.  He basically told me to call them and settle, I don't know the exact date I was served, I can't find anything with a date on it except the summons expiration date which isn't until the end of October. I am a newby and I misunderstood that to mean I had more time. 

Should I still file an answer? Is there some time leeway right now during covid?  I was thinking about pursuing the arbitration method but if I messed up and it's too late anyway, not sure what to do.

Please help...

 Thank you!!!!!!

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@momof3kids If you were served personally on or about 8/1/20, your answer was due within 21 days, starting the count on the day after service. If the 21st day is on a weekend or holiday, the answer would be due the next day court was open. I don't know what court you're in, but you should check your docket or with your clerk to see if a default judgment has been filed. I am not a lawyer. If they haven't filed for a default judgment yet, I would get my answer in and pray the court is running behind. If they've filed for a default judgment, you would have to have a very good reason with some proof to get it set aside. 

We will need to see the complaint and know what documents the plaintiff attached to the complaint. Was there a copy of the PayPal account agreement included? Is this an account stated cause of action? If yes, you will need to draft an affidavit to include with your answer. 

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).

RULE 2.105 PROCESS; MANNER OF SERVICE
(A) Individuals. Process may be served on a resident or nonresident individual by
(1) delivering a summons and a copy of the complaint to the defendant personally; or
(2) sending a summons and a copy of the complaint by registered or certified mail,
return receipt requested, and delivery restricted to the addressee. Service is made when
the defendant acknowledges receipt of the mail. A copy of the return receipt signed by
the defendant must be attached to proof showing service under subrule (A)(2).

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Thank you so much for your reply. I wasn’t personally served, I wasn’t home and my husband  was given the envelope but he is not named or on the account. Does that make a difference?

To answer your questions so far:

The PayPal agreement was not included.

I don’t know what an account stated cause of action is so not sure how to find that out to answer this question  

I will try to find out how to do a docket search. 

I will scan the documents in and attach them shortly.

 

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I found out my court is closed to all non-essential business, filings only by drop box or mail or delivery service. 

I found my case in the court search - I will attach a full copy of it here but in a nutshell it says:

Court Case Status: Pending (this is good right?) Goes along with the letters I’m getting from Midland saying ‘a lawsuit has been filed against you but it’s not too late’

Date filed: 7/22/20

Midland Credit Management Inc
Attorney: Smith, Elizabeth Marie

Service date: 8/5/20  Later than I thought, woohoo!  But still outside the days allowed...does date this count if it was just left with my husband and I wasn’t even there? I also never received it in the mail. How wonderful if I was improperly served?

Question- will responding to this outside of the time frame allowed make the answer invalid and encourage them to just go for a default judgment or if my answer is in before the default judgement is given will it be honored?

Case Detail.pdf

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47 minutes ago, momof3kids said:

How wonderful if I was improperly served?

(I am not a lawyer.) I don't believe you will get very far by claiming improper service. You knew about the summons on the day it was served. Your husband didn't fail to tell you or put it in a drawer where it was forgotten. 

RULE 2.105 PROCESS; MANNER OF SERVICE

(J) Jurisdiction; Range of Service; Effect of Improper Service.
(1) Provisions for service of process contained in these rules are intended to satisfy the
due process requirement that a defendant be informed of an action by the best means
available under the circumstances
.
These rules are not intended to limit or expand the
jurisdiction given the Michigan courts over a defendant. The jurisdiction of a court
over a defendant is governed by the United States Constitution and the constitution
and laws of the State of Michigan. See MCL 600.701 et seq.

(3) An action shall not be dismissed for improper service of process unless the service
failed to inform the defendant of the action within the time provided
in these rules for
service.

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1 hour ago, momof3kids said:

Question- will responding to this outside of the time frame allowed make the answer invalid and encourage them to just go for a default judgment or if my answer is in before the default judgement is given will it be honored?

I honestly have no idea. Your answer was due on August 26. Only you can decide if you want to put forth the effort to draft, serve and file and answer or call Midland's attorney and discuss settlelment prior to a default judgment. 

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@momof3kids At the top of the Complaint on page 2 it states : "VERIFIED COMPLAINT ACCOUNT STATED" They've included an affidavit and a statement of the account. This means that you will have to prepare your own affidavit of denial and get it notarized to submit along with your answer. 

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3 hours ago, Brotherskeeper said:

I honestly have no idea. Your answer was due on August 26. Only you can decide if you want to put forth the effort to draft, serve and file and answer or call Midland's attorney and discuss settlelment prior to a default judgment. 

THANK YOU for helping me learn about this process.

I'm not afraid of putting in the work, I'm afraid of making a mistake that will make my situation worse.   

 

23 hours ago, Brotherskeeper said:

@momof3kids 

We will need to see the complaint and know what documents the plaintiff attached to the complaint. Was there a copy of the PayPal account agreement included?

So, no, there was not a copy of the PayPal account agreement included, does this affect what I'm sending in my answer or the Arbitration form? 

Working on it now, don't want to lose more days over the weekend. Late answer is still better than no answer, right?

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9 minutes ago, momof3kids said:

So, no, there was not a copy of the PayPal account agreement included, does this affect what I'm sending in my answer or the Arbitration form? 

Working on it now, don't want to lose more days over the weekend. Late answer is still better than no answer, right?

When the cause of action (the legal theory of the suit) is an account stated, plaintiff submits an affidavit with an attached statement of the account showing the balance due that they are seeking a judgment for. No original account agreement is necessary. Under Michigan law, when a plaintiff brings a lawsuit under an account stated theory and submits an affidavit, the defendant needs to file an answer to the complaint's allegations and include an affidavit (notarized) of denial of the account or of the debt amount.

Under a separate heading titled AFFIRMATIVE DEFENSES, the existence of an agreement to arbitrate is listed with the facts supporting this defense. Because this lawsuit is not under a breach of contract cause of action, plaintiff isn't required to submit the PayPal agreement. Because you are using this agreement as the basis for your affirmative defense, you need to furnish a copy of the PayPal agreement that applies to your account. I am not a lawyer! The only way I know of to save time on getting this answer done --if you do not have a copy of your Paypal agreement in your possession--is to state, "Upon information and belief, plaintiff as an alleged successor in interest of Synchrony PayPal, has in its possession a copy of the applicable account agreement."

 

RULE 2.113 FORM, CAPTIONING, SIGNING, AND VERIFYING OF DOCUMENTS

(C) Written Instruments.
(1) If a claim or defense is based on a written instrument, a copy of the instrument or
its pertinent parts must be attached to the pleading and labeled according to standards
established by the State Court Administrative Office
unless the instrument is
(a) a matter of public record in the county in which the action is commenced and
its location in the record is stated in the pleading;
(b) in the possession of the adverse party and the pleading so states;
(c) inaccessible to the pleader and the pleading so states, giving the reason; or
(d) of a nature that attaching the instrument would be unnecessary or impractical
and the pleading so states, giving the reason.
(2) An attachment or reference to an attachment under subrule (C)(1)(a) or (b) is a part
of the pleading for all purposes.

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6 hours ago, momof3kids said:

I can’t find a MTC form on the court website. Do you have one for Michigan?

Unfortunately there is no state form for this. You have to properly draft your own and follow the required format. 

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@momof3kids Clydesmon is correct. Please read this entire thread. It contains rough drafts, corrections and edits and final drafts of the series of documents (motion, notice of motion and hearing date, affidavit and attached exhibits) needed for a motion to compel arbitration and stay the case. The poster had a successful outcome that you may not have due to the much higher debt amount of your lawsuit. 

https://www.creditinfocenter.com/community/topic/331200-being-sued-by-cavalry-synchrony-bank-in-mi/#comments

 

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I'm too late.  They sent a request to the court to go ahead the the default judgement on 9/10.  My only recourse is to settle at this point correct? ... what should I be holding out for that is reasonable at this point when they have me up against the ropes?  

I called them and at first they offered 10%/$680.06 off then $800 off, my debt is $6,880.66 so basically nothing.   I offered $1,500 and she said no can do, then said I could go to $2,000 MAYBE if I asked for help from friends and family.  She said that is not enough to stop the judgment but I could go for a hardship which won't stop the judgment or any legal activity and would take 21 days to qualify after I receive and return the paperwork.  She said with the turnaround there is no way it would be done before the judgment was awarded and they started garnishing, etc.

After that I asked her to go to her manager to request more of a break and she came back with a 25%/$1,705.66 off discount taking the total to $5,175 which will stop the judgment. She said my other option is payments for the full amount which will not stop the judgment but they won't enforce it while under a payment plan.

Should I hold out for more or grab it and run OR take the payment plan?  I have no idea what to expect or request at this point. Total screw up from me putting my head in the sand, I take full responsibility.  Now just trying to get a deal in place before the judgment goes through and they hit my bank account.

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None.  There isn't one. 

Would you offer me your guidance? Should I take the payoff or do a payment plan? I don't really understand the long term effects are of each option. Obviously a payment plan is easier to handle financially but that means I will have a judgment, she said they don't report judgments but it will be on public record. Not sure how that affects me. Is it worth it to cough up that payment to avoid the Judgment or does it even really matter at this point if I do payments or payoff?  

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@momof3kids I am not a lawyer. This is where a consultation with an attorney makes sense. If you own property, or will own property in the future, and any tax refunds may be affected by a recording of this judgment. Have you considered bankruptcy with your financial situation? If so, a judgment may not be something to worry about if it can be discharged in bankruptcy. Again, an attorney would be able to advise you.

You can't enter into a repayment plan if you may default on it in the near future. You shouldn't pay a lump sum for this debt if it will cause real hardship later on. In any case, you must get in writing what you agree to do and that they will file a satisfaction of judgment once you've paid the agreed upon amount. 

Here's some information that may be of some use for you if you decide you'd rather work through the court to set up a payment plan:

https://michiganlegalhelp.org/self-help-tools/money-and-debt/there-judgment-against-me-i-would-make-installment-payment-plan#

Good luck. 

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@momof3kids from the link I gave you in the post above:

Common Questions about Installment Payment Plans

If your wages are garnished after you get an installment plan, show your employer the court order for the installment plan. It says your wages can’t be garnished while you are making payments. This should stop the garnishment.

If you’re still being garnished after that, you object to garnishment with the court. Read the article Objecting to Garnishments to learn when and how to object to a garnishment.

If you and your creditor make a deal, you should get it in writing. It should be signed by your creditor. An out-of-court plan may not stop your creditor from garnishing your wages. You may want to ask your creditor not to garnish you as part of the agreement.

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17 minutes ago, Brotherskeeper said:

@momof3kids from the link I gave you in the post above:

Common Questions about Installment Payment Plans

If your wages are garnished after you get an installment plan, show your employer the court order for the installment plan. It says your wages can’t be garnished while you are making payments. This should stop the garnishment.

If you’re still being garnished after that, you object to garnishment with the court. Read the article Objecting to Garnishments to learn when and how to object to a garnishment.

If you and your creditor make a deal, you should get it in writing. It should be signed by your creditor. An out-of-court plan may not stop your creditor from garnishing your wages. You may want to ask your creditor not to garnish you as part of the agreement.

 

2 hours ago, Brotherskeeper said:

@momof3kids I am not a lawyer. This is where a consultation with an attorney makes sense. If you own property, or will own property in the future, and any tax refunds may be affected by a recording of this judgment. Have you considered bankruptcy with your financial situation? If so, a judgment may not be something to worry about if it can be discharged in bankruptcy. Again, an attorney would be able to advise you.

You can't enter into a repayment plan if you may default on it in the near future. You shouldn't pay a lump sum for this debt if it will cause real hardship later on. In any case, you must get in writing what you agree to do and that they will file a satisfaction of judgment once you've paid the agreed upon amount. 

Here's some information that may be of some use for you if you decide you'd rather work through the court to set up a payment plan:

https://michiganlegalhelp.org/self-help-tools/money-and-debt/there-judgment-against-me-i-would-make-installment-payment-plan#

Good luck. 

I just checked the court records and my case still says "pending" the court has not yet ordered the DJ. If I hurry and pay them today so the paid in full settlement pre-dates the judgment can I keep it from hitting my credit report or do something to reverse the order?

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5 minutes ago, momof3kids said:

 

I just checked the court records and my case still says "pending" the court has not yet ordered the DJ. If I hurry and pay them today so the paid in full settlement pre-dates the judgment can I keep it from hitting my credit report or do something to reverse the order?

I am not comfortable advising you to take any action here. If you settle without a written and signed agreement, you won't have any assurances they will do what they promise. Is your credit report and a possble adverse report more important than getting this right? This is a lot of money. 

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Yes for sure, I told them I must have it in writing, I would no way never pay without one. I was just thinking that if there is a way to get  the agreement and payment in before the court approves the judgment it could be worth the settlement because I will probably pay that much in interest over the next 7 years of bad credit from it anyway. BUT if that judgment will be on my credit report, there is no point in trying to come up with this money, it would be pointless and I would just do a payment plan with them instead.

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So if I understand this correctly, even if I later have written proof that the amount was satisfied before the court entered the judgment, I don't have any standing or way to keep the judgment from appearing in my public record or later request it's removal? It just seems wrong to be penalized in that way if you manage to handle it before the court issues the order. The form you linked to (thank you!) sounds like what Midland said they would do once the debt was satisfied and makes sense if the order has already been issued but what if it's satisfied before the default judgment order is ever entered by the judge?

The reason I'm doing this song and dance is that my case manager at Midland said the according to her records, the request for judgment was sent over to the court on 9/10. Then, later today when I spoke to her manager,  he said that is not actually true, he said he didn't think it had been sent in to the court yet, just to the lawyer to write it up to send out to court.  

I don't know which one I should believe. The court records say it's still "pending" with no DJ showing.  I think the manager could be lying to me to get me to pay by using the fact that they may or may not have sent it to the court yet as a carrot.

...paying the settlement in full sucks and it's ONLY worth it if

1. they haven't sent it to the court yet

or

2. if they have sent it to the court, it can be reversed or removed from my public record since it was settled before the judgment was entered.

If I could confirm that they have not sent it in to the court yet, I would consider paying the settled amount now to avoid anything in my public record, plus unexpected garnishments or liens in the future. If there is nothing I can do to avoid the default judgment because it's already on it's way to the court, and there is no benefit to trying to pre-empt the order, then there is no reason to pay up front that I can see, and a payment plan would be a lot easier to manage.

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I don't know the time frame for the steps from a judge (or clerk) signing a default judgment up to the judgment being recorded by the county as a lien. Wage garnishment and/or bank account seizure is another series of steps. You would have to provide the court with the employment information wouldn't you? Midland attorneys are very overworked and often quite sloppy. Internal communication can be very poor. If you can reach the court clerk by phone you can ask how long it takes for a default to go through her system. I don't see that you have much leverage against Midland here. They obviously want as much money from you and as soon as they can get it--especially where it saves them time and court fees. They know you don't want a judgment on your record. 

 

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