[Lil]

How does one respond to a motion for a default judgment in a Michigan civil case? The letter from the lawyer says pursuant to MCR 2.602(B)(3), the judgment is submitted for signing if no written objections are filed within seven days.

But I find in MCR 2.119 (D)(b): A proposed order is deemed rejected unless it is stipulated to or notice and hearing are waived within 7 days after it is served. I'm not going to sign it or waive my right to a hearing, so that sounds like I don't have to do anything.

Help, please! My deadline is tomorrow.

Many thanks.

[grandhaiku]

Were you serve papers to go to court on this judgement? If so and you did not go to court, the judgement is automatic and it stands. If this is a service to go to court to defend the judgement, then you better go to court. If you do not show up to defend, the judgement is automatic.

[Lil]

Yes, I went to court for the pretrial hearing. I have a court date for the hearing. I *do* plan to go and defend myself.

This letter and motion arrived between the pretrial hearing and the actual hearing. My question is how to respond to it.

Thank you.

[ScottGem]

First a default judgement occurs if you DO NOT fight it. Since you have indicated your intention to defend against the suit, as long as you show up for the hearing a default judgement can't happen.

So the next question is what are you being sued for and what is your defense?

[autoelec]

First a default judgement occurs if you DO NOT fight it. Since you have indicated your intention to defend against the suit, as long as you show up for the hearing a default judgement can't happen.

So the next question is what are you being sued for and what is your defense?

Credit card debt

[ScottGem]

credit card debt

Huh, are you Lil? Do you want more help? If so, you need to provide details.

[Lil]

Thanks for asking! I can really use the help. Autoelec is not me, but s/he is correct: the suit is over credit card debt. After trying credit counseling and getting nothing but offers of debt consolidation offers (not one iota of the credit counseling I asked for), I called credit card companies and negotiated for my own debt reduction plan. Because of my medical problem, I was on Discover's hardship program, on an automatic payment plan. Then, for two months in a row, they took double deductions from my checking account. Discover promised to refund it and did not. (I recorded the call, but the quality is so poor that I can hardly understand it myself; besides, I think it's illegal to record the call without the other party knowing.) This set off a horrendous chain of bounce fees, penalties and interest that amounted to several hundred dollars, and marked the beginning of the end for me. I have health problems that have prevented me from working full-time for nearly ten years. I can work very few hours and it needs to be irregular hours, so I have my own business (a service; I don’t buy or sell anything). It puts me way under the poverty level each year but helps me pay my home-office utilities. Last year I had a net operating loss because of health-care and home-office expenses. I work as many hours as I can, which last year was less than quarter-time. The business would be profitable if I could work full time. I was paying for food, medical bills and utilities by credit card--no fancy cars, vacations or expensive restaurants. I've lived frugally, but that event caused my credit card fees and interest to go through the roof and I finally realized that I have no hope of being able to catch up as I'd been trying so hard to do for so long. I had no intent to defraud. I had the unforeseen circumstance of a health problem. So now I'm being sued by Discover for about $13,000. I'm sure other credit card companies will follow with more lawsuits.

I have a CIVIL PRE-TRIAL ORDER AND NOTICE TO APPEAR, which reads, in part:

Bench trial on JUNE 6, 2007.

PRE-TRIAL ORDER
1. AMENDMENTS MUST BE FILED WITHIN 21 DAYS OF THE DATE OF THIS ORDER.
2. Names and addresses of all witness shall be exchanged within 42 days from the date of this order. Each party may call 2 expert witness.
3. _X_ Discovery shall be completed within 77 days of the date of this Order).
___ Discovery is limited to:
4. Motions shall be filed and heard not less than 14 days before trial.
5. [crossed out—relates to jury trial]
6. All written exhibits shall be exchanged not less than 21 days before trial. Written objections to the admissibility of the exhibits shall be made in writing within 7 days thereafter.
7. Trial briefs may be filed within the discretion of the parties.
8. Estimated trial time: 1 hour.
9. It is further ordered that:
10. Failure to object in writing to this order within 14 days of the date thereof shall be considered an approval by the parties.

Date: FEBRUARY 27, 2007

So here are my questions (following the numbered items above):
1. No amendments (I don’t know what that means, but it’s too late anyway—March 20 deadline).
2. Witnesses—do I need any? What kind of witnesses are they likely to bring? Looks like the due date was April 10, so I missed it.
3. Discovery due by May 15: I plan to request (1) the original signed contract or credit card application (there is none because the card was sent to me unsolicited in the 1980s when credit card companies did that, but it probably had a statement that using the card constituted acceptance of the terms). (2) a complete accounting of the debt, including all purchases, payments, interest, fees, penalties and how they were calculated. (3) proof that WWR is legally authorized to collect for Discover—that they own or were assigned the debt. (4) proof that WWR is licensed in Michigan to collect.
4. Motions due by May 23. Should I make a motion to dismiss? If so, how? If not, what kind of motions should I make?
5. Nothing to do.
6. Do I need any written exhibits? Due May 16. I guess I need to provide documentation of the late fees, penalties and interest I had to pay because of Discover’s failure to honor its promise. Do I need a copy of my answer to the original summons? Do I need a copy of my letters asking for debt validation?
7. What is a trial brief?

Thank you so much.
Lil

[ScottGem]

Do you have a copy of the agreement you negotiated with Discover? I would bring that along with proof of the double deductions and how that affected things. The only other documentation would be a letter from your doctor detailing your health issues and how it affects your ability to work.

It is my opinion, that if you can prove that you had a payment plan in place and it blew up because of Discover's error, that the suit may be dismissed and the settlement put back in place.

You do need to provide copies of these documents 21 days before 6/6.

[Lil]

Honestly, I can't even afford to pay the hardship plan amount any more. I was hoping I could win the whole thing based on their failure to validate the debt.

[Lil]

OK, I responded to the request for a default judgment against me, indicating my intent to defend myself at the trial. Now I got a notice of a hearing for entry of default judgment. Of course I'll show up, but what do I need to be prepared for? I didn't think there would be another hearing before the trial.

[ScottGem]

Show up with any documentation you have.

[Lil]

credit card debt

I indicated my intention to defend against the suit by responding in writing to the request for a default judgment and by showing up in court. I was shocked when the judge handed down a default judgment anyway. He expected me to defend against the suit at the judgment hearing, although I said I thought that's what the trial was for. But he agreed with the lawyer for the plaintiff that my case had no merit. That lawyer didn't have paperwork with him (judge kept asking him for this and that and he kept responding that he didn't have it). He did not have to prove anything. I have proof that the creditor took double deductions for two months in a row, but wasn't given the time to produce them in court.

So apparently in Michigan, just showing up for the hearing does not prevent a default judgment. Unfortunately for me, that is contrary to what people on this forum have said.

Now I feel hopeless. I'm not sure whether it's worth it to file to have the judgment set aside. It seems like that would gain me only the amount of the double deducations. I still am destitute because of my health and cannot pay any of the bill.

Lil

[ScottGem]

I can't tell exactly what happened or maybe MI has different terms for things. But where I come from a default judgement happens when you don't show up or fight the judgement. That you had a judgement enteredf eagainst you without the plaintiff producing evidence of the debt smells fishy to me. I would file a motion to vacate the judgement on those grounds.