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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 91942
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I am involved in a junk debt credit suit for $500.00. Here

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I am involved in a junk debt credit suit for $500.00. Here are the details;

1. Filed an answer to complaint
2. Answered first set of questions (deny all)
3. Sent in Request for docs and admissions. (no response from plaintiff)
4. Received a default judgment before plaintiffs 30 day time period to respond was up.
 5. Went to court to hear my motion to set aside default on the grounds that I never received a notice to appear, but I failed to file an affidavit of meritorious defense.
 6. Court gave me two weeks to file affidavit.


So here is the wrinkle. I cannot find my initial answer. I have spent the last several days in deep study on how to defend this case and have sited just about every defense along with some case law examples in my affidavit. Also claimed that I intend to strike plaintiffs affidavit because it was filed 3 months before the action was brought. It is hearsay, original contract wasn't attached etc...
My deadline to file is in 3 days, I called the court and asked if I could get a copy and they said it will take up to a week. The problem is as I understand it, I cannot add defenses after I answered. I know I can file a motion to leave to amend my initial answer but when can I do that? Before during or after default motion is heard? Or is it ok if I say within my affidavit that I plan on filing an amended answer with all of the info in my affidavit included....I don't recall what I said in my answer, if I used "failure to state claim, Lack of standing, statute of limitations etc...all of which are in my affidavit. I suspect my initial answer was something along the lines of a complete denial but I don't recall if I even entered any affirmative defenses. I know much more now about this that I did when I filed the answer.
The plaintiffs affidavit was just a document " I to my personal knowledge blah blah blah" No bills, statements or default date, I don't even know if it is my debt let alone within the SOL. , just the affidavit saying we are the assignee and he owes this much.


 


Also, it's very difficult from reading the complaint if I am being sued for account stated or contract. I know the answers are different for each, "account stated" is never said, but neither is "contract". Just "account".

Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

Have you physically gone to the court to look at the court record? Current court cases are kept on site and the clerk should be able to pull out your case file, which would have your answer in it, for you to review. That is your first step.

Second, if you do not recall what you put in your answer, then you need to compile your affidavit to the best of your memory arguing all of the points as your meritorious defenses, even if not claimed in your answer and you would state in there that upon the default being vacated you plan on seeking leave to amend your answer to include all of the meritorious defenses not previously stated and you reserve your right to claim additonal meritorious defenses as they arise during discovery. The court needs to just know you have a good set of defenses, not that they were or were not mentioned in your general denial answer at this point which upon vacating the default you can file a motion for leave to amend your answer.



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Customer: replied 1 year ago.

Have you physically gone to the court to look at the court record? Current court cases are kept on site and the clerk should be able to pull out your case file, which would have your answer in it, for you to review. That is your first step.


 


No I just called and asked, they said it costs $1 and it can take up to a week to get it. I did mention that the case was currently in litigation but did not know that they have the doc right there on file.


This is the affidavit I am filing, I am wondering if it is too much or some of it is irrelevant....I have looked up a lot of the case law cited but understand some much better than others....I have tried to include as many defenses as possible. I don't want to piss the judge off but I do want to dissuade the plaintiff to persue for a measly $500.00


I, Robert xxx being duly sworn do hereby depose and say:


 



  1. I am over the age of 18 and am a resident of the state of Michigan and state that all of the following statements are true to the best of my knowledge and belief. And that based on the facts set out in this affidavit, I have several meritorious defenses including:


 



  1. That Defendant has no records or knowledge pertaining to the alleged account, and does not believe that the alleged debt is valid. Plaintiff has provided no evidence that the alleged account even exists, or that plaintiff has any legal right to bring this action. An in house affidavit is hearsay and does not by itself substantiate plaintiffs’ claims. The defendant puts the plaintiff to its strictest proof thereof.


 



  1. That plaintiff failed to attach a copy of the written instrument as an exhibit to the Complaint and failed to recite relevant information as required by MCR 2.113(F). MCR 2.113(F); Burrill v Michigan, 90 Mich. App. 408, 412; 282 N.W.2d 337. Although Plaintiff claims to “have access to the records of this account, and that the amount of the claim is just and true to the best of my personal knowledge”. Plaintiff has not attached any of those records and has attached an affidavit by Amber Pickar in lieu of a written instrument or any records pertaining to the account. Plaintiff lacks standing and has failed to state a claim on which relief can be granted.


 



  1. That Plaintiff has failed to present any documentation of the alleged debt, there is no way to determine if is valid and falls within or is beyond the statute of limitations. MCL §600.5807(8). The relevant date for determining when the six-year statute of limitations begins to run is the date of the last activity on the account, whether it be a purchase or a payment made. For a debt arising out of the sale of goods which is governed by the Uniform Commercial Code (UCC), a collection action must be commenced within 4 years after the cause of action has accrued. MCL §440.2725(1). Plaintiff has provided no default date, no date of last activity, and no method or means of interest and penalty calculation. The defendant puts the plaintiff to its strictest proof thereof.


 


 



  1. That on 7/15/2013, defendant had filed with the court and sent to plaintiff and a request for the production of documents and admissions from plaintiff and that plaintiff has failed to comply or answer said requests. (See exhibits A, and B). Defendant has the right to file a motion to compel discovery and or a motion to dismiss based on plaintiffs failure to provide the requested documentation within the allotted time period.


 



  1. That defendant will argue to strike Amber Pickars’ affidavit on the grounds that on it is hearsay. Plaintiffs’ claims need to be supported by actual evidence or other competent witness[s] who were privy to the information at the time the alleged account was opened. People v Hill, 257 Mich. App. 126, 140; 667 N.W.2d 78 (2003). It is impossible for Ms. Pickar to have personal knowledge of the alleged debt in question, which creates an issue of material fact. Further the defendant has the right to subpoena the affiants’ resume and employment history as well as the affiant herself to testify to the validity of her affidavit.


 



  1. That defendant will argue to strike Amber Pickars’ affidavit on the grounds that it was prepared 3 ½ months in advance of litigation and is therefore not admissible. People v Huyser 221 Mich App 293, 298; 561 NW2d 481 (1997). In general, a record "prepared for the purpose of litigation" lacks the trustworthiness that is the hallmark of a document properly admitted pursuant to MRE 803(6). 29A Am.Jur.2d, Evidence, § 1313, pp. 720-721. People v. Cortez, 131 Mich.App. 316, 330, 346 N.W.2d 540 (1984) ("documents prepared for use in litigation are excluded by this qualification [i.e., trustworthiness]"); Attorney General v. John A. Biewer Co., Inc., 140 Mich.App. 1, 17, 363 N.W.2d 712 (1985) ("documents prepared for use in litigation are not admissible as records of regularly conducted activities"). As explained in Biewer, "where the record is prepared for the purpose of litigation, the record does not have the inherent trustworthiness that a record kept in the regular course of business does. Plaintiff lacks standing and has not stated a claim on which relief can be granted.




  1. That Amber Pickars’ affidavit fails to prove the alleged debt was legally purchased from original creditor. No records of any contract of sale or assignment chain have been provided. Defendant has the right to file a motion to compel discovery and request the contract or bill of sale that references the above mentioned debt specifically along with any and all documentation showing the full assignment chain and will put the plaintiff to the strictest proof thereof that they have legal standing to bring this action. Accordingly, because plaintiff’s complaint failed to present the court with evidentiary quality, material in support of its assertion that it was the current holder of the note, a genuine issue of material fact remains regarding whether plaintiff has standing in this action. Palisides Collection LLC v Taylor, Hudson & Key v Gregory. Consolidated Nos 08-684-CZ, 08-1012-CK-3 Saginaw Circuit Court (2008), Weston v Card, 96 Mich 373, 377-378; 56 NW 26 (I893). Wright-Patt Credit Union v. Byington (Ohio 9/13).


 



  1. That plaintiff has shown a history of falsifying affidavits and as such any affidavit from plaintiff should be seen as highly suspect and therefore should be stricken.


 


Midland Funding v. Brent (No. 3:08-cv-1434), Franklin v.


Midland Funding (No. 3:10-cv-00091), and Vassalle v. Midland Funding (No. 3:11-cv-00096)


(Vassalle Doc. 7).


 



  1. That pursuant to the Fair Debt Collection Practices Act, (§ 803.4) Since Plaintiff is NOT the original creditor. Plaintiff must establish a creditor/debtor relationship with defendant and establish a course of business dealings between the parties in order to claim remedy. Plaintiff must also provide viable validation of the alleged debt beyond their own records. Since Plaintiff is not and does not represent the original creditor, the records they keep are hearsay. This includes affidavits since said records or documents upon which the affiant relied on are not the original creditors or attached to the complaint or affidavit. Defendant asserts that plaintiff must provide the original creditors complete records of the alleged debt.




  1. That defendant will invoke the doctrine of Volenti Non Fit Injuria. Plaintiff cannot claim remedy for an injury which plaintiff inflicted upon yourself as the Plaintiff has done by willingly purchasing debt on an account that was defaulted and deemed non collectible by the original creditor.


 



  1. That plaintiff has not produced any evidence of any contract involving defendant and therefore cannot prove any right to receive, interest, late fees or attorney fees. The plaintiff is not entitled to unjust enrichment.


 



  1. That defendant reserves the right to amend initial answer. Upon order to set aside default judgment, defendant will file a motion to leave to file an amended answer and include all of all of the meritorious defenses not previously stated and you reserve your right to claim additional meritorious defenses as they arise during discovery.


 


 


 


 


 


 


I declare that to the best of my knowledge and belief, the information herein is true, correct and complete.


 


Executed this __________day of________, 2013 Defendant_________________________________


 


County of_______________ State of________________


 



Sworn to and subscribed before me in my presence this ____________Day of ______, 20_____


 



Notary Public______________________________

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

You need to go to the clerk's office and at least look at the file, that does not take them one week to pull up. It can take one week or more by mail, not in person.

Your research seems to have paid off. Each of the issues you raise and cases you site hit a material and meritorious defense to their claim. The last paragraph you need to fix, you need to change " you reserve your right to claim additional meritorious defenses as they arise during discovery." You copied and pasted without changing it to reflect the proper person.
Customer: replied 1 year ago.


Thank you very much...I did copy and paste that bit form your reply and have fixed it. Also there are a few things in there left unfinished as you can see, Still researching.

Is there anything in there that I should take out or that dosent apply? I am not sure about 11. of Volenti Non Fit Injuria, if I word it right "invoke" or if it applies...I see so much contradictory information out there. Its hard to tell for sure. Like I said, don't want to irritate the judge, just want to discourage the plaintiff.


 


The other one is siting cases of falsifying affidavits, not sure if I should go there or not.


 


Finally, once I file this I go back to court in 2 weeks. I presume the plaintiff will file an answer to strike my affidavit? as I''m thinking all they want is a default since they probably can't win in court.

Other than filing the motion to leave, is there anything else ZI should do? or anything in response to there answer to my affidavit?


 


 

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

This will not anger the judge as written. At this point you want to show the judge, as you have, that there are many different grounds upon which you are objecting to this action against you. I think the affidavit does not have extraneous information at this point.

After the judge vacates, then you can consider whether or not you need to move for leave to correct or amend your answer.
Customer: replied 1 year ago.

What does the plaintiff do at that point tho? Should I wait for them to see if they respond? or if they dismiss? or should I file to dismiss?

Customer: replied 1 year ago.

What does the plaintiff do at that point tho? Should I wait for them to see if they respond? or if they dismiss? or should I file to dismiss? If I am understanding you correctly It sounds like it really dosent matter so much what I said in my initial answer then.

Expert:  Law Educator, Esq. replied 1 year ago.
You need to just get your affidavit filed. The court will hold a hearing, the plaintiff will try to move to strike the affidavit and you will argue good cause for submitting it late and argue that the basic principle of fundamental due process entitles you to a hearing and argue striking valid defenses denies you that right to meaningful due process. It is ultimately up to the court to allow or deny a late filed document, but since the court gave you 2 weeks to file it then it seems they are going to allow it.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 91942
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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