I am being sued by Discover in SE Michigan! Help!

[Violet]

2 possible mistakes I found by plaintiff's attorney

Hey!

I am preparing my answer, which I hope to file tomorrow. I have found two possible mistakes by the plaintiff's attorney, Buckles & Buckles. (Buckles the Clown? Wasn't that a Mary Tyler Moore show episode? )

1. Browsing on another forum, I found that there are two laws in Michigan that say that an affidavit must be signed within 10 days of the summons or complaint. The attorney's affidavit (which says she's familiar with the case and is the legal placement account manager with Discover, blah blah blah) was dated more than a month before the summons & complaint.

MSA 27A.2145 says "[a]ny affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer."

So I think I'll say "Defendant alleges that Plaintiff’s Affidavit is invalid and should be stricken because it was prepared more than ten days prior to the filing of the complaint, and therefore failed to satisfy the requirements of MCL 600.2145; MSA 27A.2145." Sound good?

2. There is a copy of a Discover Cardmember Agreement attached that is dated copyright 2009. I stopped paying the card in 2008 and haven't used it or had any contact with Discover since then. Can I say "Defendant alleges that the attached Cardmember Agreement is invalid and should be stricken because it is dated copyright 2009, and defendant did not sign any agreement or contract with Plaintiff in 2009, or use an account with Plaintiff in 2009?"

Also, do I need to file motions to strike the affidavit and the attachment? What do you advise?

[Violet]

You're reading too much into "you must answer". If you read the rest of that sentence it's "within the time stated in the summons, or a default judgment can be entered against you." That doesn't mean you have to respond. It means you could be found liable for the debt and any fees should you not respond within the time alloted.

Okay.

I'm interested to see that you filed pro se. I wonder if I should. It would be very hard to come up with the $1500-2000 I'd need to get a lawyer in Michigan. Michigan doesn't even waive the $299 filing fee for the indigent. I've put off filing BK because I have no health insurance, but I'm so sick of dealing with this. I can't wait to put it all behind me.

[justbroke]

Michigan law, though, does make it sound like I am SUPPOSED to file an answer whether I want to or not:

If you are served with a Summons and Complaint, you are being sued in a civil action. You are the defendant in this action, and you must answer (respond to) the complaint within the time stated in the summons, or a default judgment can be entered against you. This means the judge may grant a judgment for the plaintiff based on the claims/allegations in the complaint without hearing from you. Michigan Court Rule 2.110(B) says, in part, that a party must file and serve a responsive pleading to a complaint.

You're reading too much into "you must answer". If you read the rest of that sentence it's "within the time stated in the summons, or a default judgment can be entered against you." That doesn't mean you have to respond. It means you could be found liable for the debt and any fees should you not respond within the time alloted.

[Violet]

This is interesting. I got very different advice on another website.

Regarding filing a response to the Complaint...I'd be careful. They're going to win anyway, and they probably have asked for attorney fees as well. There's no point in doing anything that is going to increase the attorney fee amount. If you're judgment proof for now, it doesn't really matter if they get a judgment against you now or a few months from now.
The other side just wins automatically and usually gets everything they're asking for put into the judgment. In your case, since you are doing a bankruptcy eventually, the amount you owe will just be discharged, so wasting money and time filing a response is pretty pointless, although, yes, if the plaintiff's attorney doesn't show up for trial (unlikely, IMHO, at best), you could win. But barring that, you're going to get tagged for the full amount unless you can prove that you did not make the charges. You're not even supposed to file an answer unless you have a "good-faith" defense, meaning that you have some actual reason to believe that the claims of their complaint are not accurate.

I am dealing with the original creditor, Discover, so it's unlikely that they've lost any of the paperwork.

Michigan law, though, does make it sound like I am SUPPOSED to file an answer whether I want to or not:

If you are served with a Summons and Complaint, you are being sued in a civil action. You are the defendant in this action, and you must answer (respond to) the complaint within the time stated in the summons, or a default judgment can be entered against you. This means the judge may grant a judgment for the plaintiff based on the claims/allegations in the complaint without hearing from you. Michigan Court Rule 2.110(B) says, in part, that a party must file and serve a responsive pleading to a complaint.

http://courts.michigan.gov/scao/self...al/answers.htm

Thank you for your response. I have a few weeks to make up my mind.

[MSbklawyer]

Hello, would someone be so kind as to answer my questions? This thread is going a bit wayward.

Is there any point to filing an answer without affirmative defenses? I understand I can answer "DENIES having information and knowledge sufficient to form a belief as to the truth of the allegations" to each paragraph in the complaint. As I'm being sued by Discover, the original debtor, and only defaulted a year ago, I can't think of any legit affirmative defenses or counterclaims. Do I need to add some?

When you're answering a complaint, which must be done very soon after the complaint is filed, you haven't yet had a chance to conduct any discovery to determine whether you actually have any defenses or not. Just because you think that you owe the debt doesn't mean that you don't have some defense to the suit -- usury for instance. So the general practice, at least here, is the 'kitchen sink' approach. You throw in every affirmative defense known to man(and some new ones you just made up this morning)until you've had some time to conduct discovery. Then, before trial, you withdraw those defenses for which you do not have any basis.

Basically I have no defense . . .

How do you know that? How do you know that they haven't lost all of your paperwork and therefore can't prove your debt? That's a defense. How do you know that they haven't assigned your debt to someone else? That's a defense. Just because you agree that you made the charges doesn't mean that you have no defense to the suit. That's the fundamental difference between a denial and a defense. They are related concepts, but different. A denial says : "I never made those charges, therefore I don't owe them." A defense says: "Even if I made those charges as you say, I still win this suit because . . . you didn't serve the summons on me in the manner required by the rules of civil procedure . . . or your rates were usurious . . . or I am a minor . . . or you sold the debt to a collection agency.

Also, is there any point in sending a letter to the firm informing them that I am judgment proof and they won't get a dime from me if they sue?

None whatsoever. Complete waste of a stamp.

Thanks!

[justbroke]

What would you say when the Trustee asks... so why did you retitle the vehicle?

Actually I would intend to state the truth, namely: " With all due respect, but I (!) did not retitle the vehicle "

I like it!

[Violet]

3. ( Office name) has not proven that Capital One Bank (USA), N.A. is the real party in interest. Defense demands proof of ownership, specifically that the alleged account is still the legal property of Capital One Bank (USA), N.A. with all of the original creditor’s rights and privileges intact.

I will definitely include the above in my answer, since it has been a year since I defaulted. Isn't there a chance Discover is no longer the owner of this account, though they are listed as the plaintiff?

[OHBOY]

'VIOLET':

Quote:..."This thread is going a bit wayward..."


SORRY... I'll get outta here rightaway...

__________________________________________________ ______________
'justbroke':

Quote:..." What would you say when the Trustee asks... so why did you retitle the vehicle?"

Actually I would intend to state the truth, namely: " With all due respect, but I (!) did not retitle the vehicle "

[Violet]

Hello, would someone be so kind as to answer my questions? This thread is going a bit wayward.

Is there any point to filing an answer without affirmative defenses? I understand I can answer "DENIES having information and knowledge sufficient to form a belief as to the truth of the allegations" to each paragraph in the complaint. As I'm being sued by Discover, the original debtor, and only defaulted a year ago, I can't think of any legit affirmative defenses or counterclaims. Do I need to add some?

Basically I have no defense, I'm just trying a "hail mary" on the off chance they don't file a motion for judgment.

Also, is there any point in sending a letter to the firm informing them that I am judgment proof and they won't get a dime from me if they sue?

Thanks!

ps. Here is a sample I found on another forum. Should I send in something like this?

[justbroke]

Considering that EITHER spouse owns the vehicle full and clear and can sell it at any time without the others consent or knowledge ( my wife HAS indeed done such a thing previously...when she traded in another 'or' titled vehicle years back...)in what way would it cause a problem in a BK if an original 'or' title had been converted by one of the spouses to sole ownership ?

Because, if you did this solely to hide the asset from the Bankruptcy, the Trustee can exert their most powerful weapon... avoidance. They can avoid the transfer and bring it back into the BK estate.

Please understand, I am not stating so to argue, instead I am here to LEARN. Please tell me how it could cause a problem in any possible bk, or for that matter, how would it cause a problem in case somebody sues and gets a judgement without me being in bk.

I think it was the way it was worded. You said to transfer it to the other titled person so that the creditor(s) couldn't get to it. That's a fraudulent transfer in the BK context.

Now, having wrote all that.... would it be questioned? Probably. What would you say when the Trustee asks... so why did you retitle the vehicle?

[OHBOY]

Careful with switching the title...that can cause big problems in a BK.

Considering that EITHER spouse owns the vehicle full and clear and can sell it at any time without the others consent or knowledge ( my wife HAS indeed done such a thing previously...when she traded in another 'or' titled vehicle years back...)in what way would it cause a problem in a BK if an original 'or' title had been converted by one of the spouses to sole ownership ?

Please understand, I am not stating so to argue, instead I am here to LEARN. Please tell me how it could cause a problem in any possible bk, or for that matter, how would it cause a problem in case somebody sues and gets a judgement without me being in bk.

[SunshineGal]

Careful with switching the title...that can cause big problems in a BK.

[OHBOY]

Thank you 'martha' !

[Martha31]

THANKS 'Junker' !!!!

While I am certainly not attempting to 'hijack' this thread...(it does go along with what the OP is talking about...)... my own situation is very similar to the OPs, exept his state exemption for his vehicle is better.
Here in FL it's only $ 1000 (for BK or non BK).
Vehicle left in my name is a 1997 Chevy Blazer is valued right about $3000...though of course in reality I very much doubt I would ever get it on a private sale (trade in about $ 2000).

So, here is my additional question: in your opinion is it ok for my wife to switch the title, which is presently in BOTH our names (titled with an 'OR' in between) into HER name only...meaning she would just go down to the DMV and get it done...does not even need my signature because of the 'or'..

In MY book it would not be 'Fraudulant Conveyance', but I am wondering if a court could see it otherwise.

Anyhow, if my wife decided to do that on her own, I do believe I would be totally 'collection proof'.

Could you kindly give me your valued thoughts ? THANK YOU !!!

I was fortunate to have an "or" in one of my titles. Wife transferred into her name. I have no control over what she does so how could it be fraudulent.
IMHO it is not fraudulent and you need have her do it ASAP!

[OHBOY]

THANKS 'Junker' !!!!

While I am certainly not attempting to 'hijack' this thread...(it does go along with what the OP is talking about...)... my own situation is very similar to the OPs, exept his state exemption for his vehicle is better.
Here in FL it's only $ 1000 (for BK or non BK).
Vehicle left in my name is a 1997 Chevy Blazer is valued right about $3000...though of course in reality I very much doubt I would ever get it on a private sale (trade in about $ 2000).

So, here is my additional question: in your opinion is it ok for my wife to switch the title, which is presently in BOTH our names (titled with an 'OR' in between) into HER name only...meaning she would just go down to the DMV and get it done...does not even need my signature because of the 'or'..

In MY book it would not be 'Fraudulant Conveyance', but I am wondering if a court could see it otherwise.

Anyhow, if my wife decided to do that on her own, I do believe I would be totally 'collection proof'.

Could you kindly give me your valued thoughts ? THANK YOU !!!