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

[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!

[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.

[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]

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.

[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?