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Dave Kennett
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27686
Experience:  25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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I live in Michigan and got served a few weeks back. Im being

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I live in Michigan and got served a few weeks back. I'm being sued by an assignee of a credit card i had down south. My last payment was about 2 years ago. So far my plan of action is to fight it and make it "not worth their while".(I only owe $1500) My complaint and summons came with an affidavit stating 2 things and the complaint itself with 4:
1. The defendant herein is indebted upon open account or pursuant to contract, and defendant accepted same. (Original Account Number: xxxxxxxxx)
2. Performance has been completed and defendant agreed to pay the account.
3. There is presently due and owing, over and above all legal counter claims, the sum of $1555.41.
4. Plaintiff request judgement for $1555.41, plus intrest, cost and attorney fees.

So, that's my story. My answer is due tomorrow and I cannot decide what to put for my affirmative defense. I know alittle about the law but not enough. All I'm really trying to do is waste their time so it's not worth it for them. For a measly $1550 I figured it wouldnt be too hard. I've prepared a Request for production for later but I need help with answer in my complaint with intelligent, affirmative defense.
Submitted: 1 year ago.
Category: Legal
Expert:  Dave Kennett replied 1 year ago.
Dear JACUSTOMER - I'm not certain how I can provide an affirmative defense unless I know what possible defens you may have to the suit. You don't always have an affirmative defense to a suit however the most common are statute of limitations which wouldn't apply if it has only been two years, or something like improper venue if you were sued in a court other than where you reside or "accord and satisfaction" if you have already paid the bill. You can't simply make up an affirmative defense if there is none however you can file an answer and deny "for want of knowledge" the allegations in the complaint. The plaintiff will then have to submit some proof that you owe the money but generally they will provide an affidavit signed by someone in accounting that says you owe the debt. They will proceed with the case until they get a judgment whether you file an answer or not as these oar big firms who do this for a living and they could care less that you file an answer. They have all their forms on computer and it is no big deal to file for a judgment once you file and answer or request for discovery. I'm not saying you shouldn't file but don't be fooled that they will drop the case because it is a waste of their time. So if you have no affirmative defenses then all you can do is file your answer and state that you "deny the allegations in plaintiff's complaint for want of knowledge". It will at least force them to prove the amount. If you have any other facts that might lead to an affirmative defense please let me know but I have no way of creating a defense without there being one. I will be off line for about a half hour or so but I will respond upon my return if you have anything else to add.
Customer: replied 1 year ago.

Thank you for your quick response. The only thing I left out is that when the case comes to court, I'm planning on coming clean with them and explaining that I'm on unemployment(for 2.5 more weeks), I live with my parents for free and have no job or assets. I just dont understand how they can come after me when I have nothing to start with. From a business perspective(and this is their business as u pointed out), it makes no sense for them to put any time into this.


I was going to respond to the complaint


1. with: Disagree-Repudiation-Plaintiff is not named in any alleged agreement that is purported to have been entered into between Defendant and Plaintiff.(either that or-Plaintiff's complaint violates the Statute of Frauds)


2. with: Disagree-Failure of Consideration


3. with: I do not know if the statements are true.


4. with: Disagree-Failure to State a Claim


 


What do u think? Good idea or bad?


How about Doctrines of Scienti et volenti non fit injuria?


What about getting the affidavit thrown out as hearsay?


Should I be writing my own affidavit?


 

Expert:  Dave Kennett replied 1 year ago.
What you have to understand is that they will get a judgment against anyone who has an account in default and they don't care if you have any money or assets. They will simply have the judgment and if you ever get a job or a bank account they can then use the judgment to garnish wages or attach assets. Telling them you are on unemployment etc. is simply a waste of time because they don't care and it has no legal effect on the case and is not a defense as to whether you owe the money. Basically you have to deny the allegations and you can say all the things you want to say but the botXXXXX XXXXXne is that the court will accept an affidavit as a verified complaint and will probably issue a summary judgment without even having a hearing. That is the way these collection cases operate and unless you can present a legal defense to the claim they are going to get the judgment. It really won't mean anything unless or until you get a job or have some money or other assets as it is not a crime to owe money. I would not submit an affidavit since there is nothing you can say under oath that is going to matter and you have to be careful not to make any false statements since that would be a crime of perjury. Filing an answer to delay the case is fine but don't try to "out lawyer" the other lawyer since they are very experienced in all of this and it will be you who is wasting your time. I would just file your answer and deny for want of knowledge and see what happens.
Customer: replied 1 year ago.

Okay, thank you for your time sir. Just one last thing for me to be satisfied. So I'll simply put deny to all including for #3? And for my reasoning write, deny for want of knowledge to all four. Keep in mind that while this is the only suit I currently have against me, I expect others to follow as I owe a bank and 3 other credit cards money but have yet to hear from them. YET being key here(see, not completely dumb. lol). So now I'm considering chapter 7. Probably a good idea i know but how will this affect my current case? Bankruptcy takes roughly 3 months, so won't they be expecting moneys before I can go through with the bankruptcy? If my case closes before the bankruptcy will I still owe to them or is it considered a debt to wipe with the rest of them?


 


Thanks in advance for all of your help and knowledge. Look for my good service review.

Expert:  Dave Kennett replied 1 year ago.
If you plan on filing bankruptcy then I wouldn't worry about what you say in your answer. On the date the bankruptcy is filed all collection activity must stop including any lawsuits. So it doesn't matter if the suit takes 3 months or whatever. Even if there is a judgment it will be discharged.Thanks for using our service.
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27686
Experience: 25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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