Legal

Ask a Lawyer and Get Answers to Your Legal Questions

Ask a Lawyer,
Get an Answer ASAP!

Legal
This answer was rated:

I am involved in a junk debt credit suit for $500.00. Here

I am involved in a...

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".

Show More
Show Less
Ask Your Own Legal Question
Answered in 15 minutes by:
10/2/2013
Law Educator, Esq.
Category: Legal
Satisfied Customers: 119,627
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Verified
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.



I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Please consider that I am answering the question or question that is posed in your posting based upon my reading of your post and sometimes misunderstandings can occur. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

Kindly remember the ONLY WAY experts receive any credit at all for spending time with customers is if you click on OK, GOOD or EXCELLENT SERVICE even though you have made a deposit or are a subscription customer. YOU MUST COMPLETE THE RATING FOR THE EXPERT TO RECEIVE ANY CREDIT, if not the site keeps your money on deposit.

Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

This is NOT the practice of law nor is it legal advice to you, it is merely educational information for you to use to seek out a licensed attorney in your state to get actual legal advice from them. Please use sites such as http://www.martindale.com or http://www.lexmundi.com or http://www.hg.org to find a local attorney to get actual legal advice in all matters.
Ask Your Own Legal Question
Customer reply replied 4 years 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______________________________

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.
Ask Your Own Legal Question
Customer reply replied 4 years 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?


 


 

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.
Ask Your Own Legal Question
Customer reply replied 4 years 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 reply replied 4 years 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.

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.
Category: Legal
Satisfied Customers: 119,627
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Verified
Law Educator, Esq. and 87 other Legal Specialists are ready to help you
Ask your own question now
Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 119,627
119,627 Satisfied Customers
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law

Law Educator, Esq. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it.

LeeMichigan

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,775 satisfied customers

JD, BBA Over 25 years legal and business experience.

Ely

Ely

Counselor at Law

24,218 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

INFOLAWYER

INFOLAWYER

Attorney

20,218 satisfied customers

Licensed attorney helping individuals and businesses

JPEsq

JPEsq

Attorney

2,132 satisfied customers

Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor

Law Educator, Esq.

Law Educator, Esq.

Attorney

119,627 satisfied customers

JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law

Ellen

Ellen

Lawyer, Consultant

8,238 satisfied customers

25 years of experience helping people like you.

Guillermo J. Senmartin, Esq.

Guillermo J. Senmartin, Esq.

Attorney

287 satisfied customers

7+ years of experience handling various legal matters.

< Previous | Next >

Related Legal Questions
What is the statute of limitations in California for filing
What is the statute of limitations in California for filing suit against a physician for breech of contract? Additionally, if the person is also suing the doctor for malpractice, would the person also… read more
Ray
Ray
Lawyer
Doctoral Degree
30,268 satisfied customers
I have an affirmative defense question. CA. Not sure
Hi, I have an affirmative defense question JA: What state are you in? It matters because laws vary by location. Customer: CA JA: Has anything been filed or reported? Customer: no JA: Anything else you… read more
Dwayne B.
Dwayne B.
Juris Doctor
28,500 satisfied customers
What is the statute of limitations in Texas for A felon in
What is the statute of limitations in Texas for A felon in possession of a firearm … read more
N Cal Atty
N Cal Atty
Doctoral Degree
59 satisfied customers
What is the statute of limitations in Florida for medical
What is the statute of limitations in Florida for medical malpractice? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
5,972 satisfied customers
What is the statute of limitations for legal malpractice
what is the statute of limitations for legal malpractice lawsuit? … read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
I live in Oregon and the statute of limitations on financial
I live in Oregon and the statute of limitations on financial contracts is 6 years,rather than 7 years. There are 2 Business credit card accounts which appeared on my personal credit this year. The acc… read more
LegalGems
LegalGems
Juris Doctorate
10,224 satisfied customers
Is there a statute of limitations in MA for physical abuse
Is there a statute of limitations in MA for physical abuse in the 60's and 70's by a parent? … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,094 satisfied customers
What are the statute of limitations for Intentional
what are the statute of limitations for Intentional Infliction of Emotional Distress cases?… read more
Roy Hadavi
Roy Hadavi
Attorney
Juris Doctorate
896 satisfied customers
What is the statute of limitations for bodily injury and
what is the statute of limitations for bodily injury and property damage in colorado … read more
Olivia Kent
Olivia Kent
Managing Partner
Doctoral Degree
1,467 satisfied customers
What is the statute of limitations on collecting on a
Hi! What is the statute of limitations on collecting on a criminal monetary judgment? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
5,972 satisfied customers
In California is there a statute of limitations on bring a
In California is there a statute of limitations on bring a court action against a ex-husband that the court ordered over 25-years ago to pay his wife $125,000.00 in a divorce. Is there anything lawful… read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
What is the statute of limitations on contesting a will in
What is the statute of limitations on contesting a will in the following particular circumstances? A man dies at 84 after having changed his will twice in the previous 20 years. One original will was … read more
Olivia Kent
Olivia Kent
Managing Partner
Doctoral Degree
1,467 satisfied customers
Is there a statute of limitations on filing against the
Is there a statute of limitations on filing against the attorney my brother had, who has been disbarred for stealing from at least 8- of his clients, but there are 3 or 4 more involved in the thief of… read more
Ray
Ray
Lawyer
Doctoral Degree
30,268 satisfied customers
Is there a statute of limitation on when a homeowner or
Is there a statute of limitation on when a homeowner or insurance company can file a workmanship claim against a contractor in the state of Florida for damages resulting for work performed? … read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,094 satisfied customers
Is there a statute of limitation on a possible social
is there a statute of limitation on a possible social security disability fraud case? thank you. … read more
Ray
Ray
Lawyer
Doctoral Degree
30,268 satisfied customers
What is the statute of limitations on billing a patient for
What is the statute of limitations on billing a patient for medical services rendered? (I'm in California) … read more
INFOLAWYER
INFOLAWYER
Attorney
Doctoral Degree
20,218 satisfied customers
In Colorado what is the statute of limitations for
In Colorado what is the statute of limitations for defamation/libel -- there appear be three general timelines 3years, 2years, and 1year. … read more
RobertJDFL
RobertJDFL
Attorney
Juris Doctorate
5 satisfied customers
Is there a statute of limitations in North Carolina for a
is there a statute of limitations in North Carolina for a second DUI that happened 1/31/2013? was also ticketed for driving while revoked. … read more
Expert James
Expert James
Doctoral Degree
11,542 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x