Need some info. I was served with a Summons & Complaint for an old credit card. The bottomfeeder is MRC Receivables (Midland Credit Management, Inc.) for Household/Orchard Bank. They are suing me for $795.54. I checked my credit report and the debt is on there for $247.00 as a charge-off. My question is, can I use the discrepancy in the amount as a defense? Meaning, I admit it is my debt and I did in fact open the account, but why should I pay $795.54. I would be willing to pay $247.00. I am filing an answer basically neither admitting or denying claims and leaving Plaintiff to its proofs, stating that the amount actually owed is different than the amount they say I owe. Any suggestions? Thanks.
You could plead usury as an offset. However, the better option is to move to dismiss if Midland's complaint had no Agreement attached. You could also file a Motion for a More Definate Statement wherein you demand strict proof of anything owed to Midland. This preserves your right to later move to dismiss.
I can't get the page to open of the website that you provided. Thanks for the info. There was definitely no agreement attached to the complaint. Just an affidavit from someone stating that they have knowledge of such account and the terms therein. If I filed a Motion to Dismiss based on this, how would I word it? I work for a law firm so I have a basic idea but we do mostly Landlord/Tenant eviction matters.
Just a Motion to Dismiss for failure to state a claim. An affidivit will probably be sufficient to survive a 12b6 motion but, it won't hold up in Court unless they produce the affiant which swore it out. They won't, the affadivit is hearsay, they have no proof of Agreement, you should win.
