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Sued in Michigan, but not properly served (I think?)


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Hi, I did search around on the forum but I’m feeling very overwhelmed by all the unfamiliar terminology so I apologize if I missed something.  I believe I was not properly served, but I am not sure how to proceed from here.  Details below. Any advice much appreciated.

1. Who is the named plaintiff in the suit? LVNV Funding

2. What is the name of the law firm handling the suit? Stenger & Stenger

3. How much are you being sued for? 2,415

4. Who is the original creditor? Credit One Bank

5. How do you know you are being sued?/ How were you served/ Was the service Legal: I think my service was not legal? On December 18, 2021 received a note taped to my door while I was not home notifying me of attempt of service.  I texted the number on the notice with times that were convenient for me.  I did not hear anything back until I received notice via regular mail (not certfied, no return receipt) on 3/23/2022.  According to the link on this forum:

MICHIGAN

(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).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? Washtenaw County Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) I do not remember

11. When did you open the account (looking to establish what card agreement may be applicable)? 2014 according to their complaint

12. What is the SOL on the debt? According to chart in link, 6 for Michigan

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 "I texted the number on the notice with times that were convenient for me."  

Unless it stated it was a cellphone and to expressly text, the number was a most likely a business voice land line. Did you call and try to leave a voicemail?  

Michigan is like Virginia in that lawyers are not allowed in small claims court so Albeit, the Credit card agreement has a small claims exclusion it is not enforceable. 

Step 1) is to get copy of credit card agreement it has an arbitration clause.  Use agreement in force when you defaulted.  If you don't remember check your credit report should state the month you last paid. 

Step 2) read this post and prepare a MTC arbitration and file with your answer within 21 days of in person service or 28 days of mail service (Service is made when the defendant acknowledges receipt of the mail.)

 

 

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15 hours ago, Bulldoger said:

Step 1) is to get copy of credit card agreement it has an arbitration clause.  Use agreement in force when you defaulted.  If you don't remember check your credit report should state the month you last paid. 

I just pulled all 3 credit reports and read every page; the credit one account does not appear anywhere, including closed/charged off accounts.  Only LVNV funding appears with credit one bank as original creditor, but no other details.  I will dig through papers and see if I can find the card agreement, but I am not hopeful.  Thanks again for your help!  

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5 hours ago, BV80 said:

I believe @Clydesmomis originally from MI.  Perhaps she has knowledge of whether or not service of the summons and complaint was proper in your case.

That is the one area of MI court rules I am not familiar with as I was never served there or had to serve anyone.  I do have one opinion.  The fact the OP responded to the text messages from the process server indicates they knew they were trying to serve them.  While they could attempt to have service vacated if the process server produces those texts I think it would be fatal to getting service tossed.  Even if service was not proper all they will do is re-serve the papers.  It will not eliminate the lawsuit.  

The OP knows about the suit now.  My belief is that energy is better spent on fighting this not the serving of the papers.

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On 3/24/2022 at 12:24 PM, Lyndra said:

I did not hear anything back until I received notice via regular mail (not certfied, no return receipt) on 3/23/2022. 

Did you receive a copy of the actual summons and the formal complaint (with LVNV as the plaintiff) by regular mail? If yes, what is the date the summons was issued? 

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Rule 2.105 Process; Manner of Service 

(K) 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.

(2) There is no territorial limitation on the range of process issued by a Michigan court.

(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, Brotherskeeper said:

Did you receive a copy of the actual summons and the formal complaint (with LVNV as the plaintiff) by regular mail? If yes, what is the date the summons was issued? 

I received a poor-quality photocopy of a summons with issue date 12/3/2021 and expiration date 3/4/2022 and a second summons in the same package with issue date hard to read because of quality but looks like issue date 3/4/2022 and expiration date 6/6/2022. Photocopied on the back of the first summons is the complaint.  All of this arrived in the same package postmarked 3/21/2022.

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Rule 2.102 Summons; Expiration of Summons; Dismissal of Action for Failure to Serve

(A) Issuance. On the filing of a complaint, the court clerk shall issue a summons to be served as provided in MCR 2.103 and 2.105. A separate summons may issue against a particular defendant or group of defendants. A duplicate summons may be issued from time to time and is as valid as the original summons.

(D) Expiration. A summons expires 91 days after the date the summons is issued. However, within those 91 days, on a showing of due diligence by the plaintiff in attempting to serve the original summons, the judge to whom the action is assigned may order a second summons to issue for a definite period not exceeding 1 year from the date the summons is issued. If such an extension is granted, the new summons expires at the end of the extended period. The judge may impose just conditions on the issuance of the second summons. Duplicate summonses issued under subrule (A) do not extend the life of the original summons. The running of the 91-day period is tolled while a motion challenging the sufficiency of the summons or of the service of the summons is pending.

36 minutes ago, Lyndra said:

Photocopied on the back of the first summons is the complaint. 

Can you post the complaint with your personal info redacted? We need to see if it's an "account stated" cause of action. 

Were any account statements or affidavits attached to, or included with, or referenced in the complaint as exhibits? 

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They are suing you on an account stated cause of action. (see Complaint paragraphs 7 and 8.) Plaintiff should have submitted an affidavit and an account statement with this complaint under this cause of action.  I haven't been able to assist on this forum in a while, so I don't know if there are more recent threads from Michigan. This very long thread below contains a lot of information if you can stay with it. @Bulldoger helpfully gave you the link to the pinned thread on arbitration that explains this way to fight this court case. It's really important to read up to understand what you will need to do before you take any action. It's critical that you properly respond to the court with your answer by the deadline to do so. 

 

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Thanks very much @Brotherskeeperand @Bulldogerand everyone; I have been reading through the thread about arbitration and I called the courthouse for instructions in filing my response. Looks like it's a pretty tiny office and less formal, so whatever I have to say on a piece of paper will be fine. I will look through all of these links, thank you again for your help! 

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4 minutes ago, Lyndra said:

Looks like it's a pretty tiny office and less formal, so whatever I have to say on a piece of paper will be fine.

I urge you to take your time to understand this process and not make early assumptions that could harm your position. No matter how informal a court clerk's demeanor may be, you as a pro se defendent are required to follow the Michigan Court Rules of Civil Procedure. Certain small allowances may be made because you are self-represented and not a lawyer. Thinking strategically, wouldn't you rather have Stenger think that you will be a formidable pro se opponent and will be more trouble to tangle with going forward than your debt is worth? 

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8 minutes ago, Brotherskeeper said:

I urge you to take your time to understand this process and not make early assumptions that could harm your position. No matter how informal a court clerk's demeanor may be, you as a pro se defendent are required to follow the Michigan Court Rules of Civil Procedure. Certain small allowances may be made because you are self-represented and not a lawyer. Thinking strategically, wouldn't you rather have Stenger think that you will be a formidable pro se opponent and will be more trouble to tangle with going forward than your debt is worth? 

Oh for sure, I just meant I was grateful that it doesn't look like they will bog me down with a lot of extra red tape, not that I was going to rush the process. I'm still at the beginning of my window to respond so I plan to take my time. Thanks again

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  • 4 weeks later...

Hi folks, just wanted to give an update, things took a turn I wasn't expecting but I am on the way to resolution. I ended up getting approved for a personal loan that let me consolidate several debts including enough to offer a settlement in this case and hire an attorney. I did file my initial response to the complaint pro se before all that worked out so thank you @Brotherskeeperfor the suggested language in the other Stenger thread; I borrowed a lot of language from that. I very much appreciate everyone who took the time to respond, this forum is an incredible resource and I will be back to sort out some other financial things before they get to this stage again. Thanks again all

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