btinman82

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About btinman82

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  1. I only have a couple of days to answer the Plaintiff's "Notice of Submission of proposed order on Plaintiff's Motion for Summary Disposition". How do I answer? Is it even worth answering as it appears I have lost or does the Plaintiff still have to produce documents? I don't even know what "partially granted" and "partially denied" mean. Help. Still would like to know if the Judge acted improperly by questioning me for the Plaintiff when the documents in front of him couldn't answer his question?
  2. 1. Documentation showing what? 2. Showing one was paid off would make their case unsubstantiated? 3. Wouldn't this work against me? Thanks
  3. DEFENDANT’S BRIEF IN OPPOSITION TO SUMMARY DISPOSITION JUDGEMENT PURSUANT TO MCR 2.116©(9)(10) Now Comes Btinman82, Defendant Pro Se and responds to the Plaintiff’s Motion for Summary Judgment pursuant to MCR 2.116©(9) and (10) states as follows: I. INTRODUCTION AND FACTS 1. On April 22,2013, the Plaintiff “MIDLAND FUNDING LLC” filed a complaint in Macomb County District Court alleging one claim of a breach of contract and account stated along with an affidavit from an employee of MIDLAND FUNDING LLC which was dated February 25, 2013 though the summons was issued on May 9, 2013, which does not comply with MCL 600.2145 “Account Stated” where the affidavit and account need to be attached to complaint, the affidavit needs to be dated within 10 days of the summons in order for it to be deemed Prima Facie evidence to create an account stated claim, the Plaintiff failed to comply with this law. 2. The Defendant filed an “answer” with the court on June 18, 2013 denying the claims of the Plaintiff and stating seven defenses including 1) A Lack of Standing 2) Failure to State a Claim, along with a counter-affidavit denying the account and the amount allegedly owed to the Plaintiff. 3. The Plaintiff never plead in their complaint a clear assignment from GE MONEY BANK to MIDLAND FUNDING LLC, this error is fatal in their attempt to obtain a summary judgment under MCR 2.116©(10). 4. The Plaintiff has not established that they have purchased this account, the Plaintiff has only provided a bill of sale from GE MONEY BANK (Exhibit A) that does not state or show the Defendant’s alleged account or provided additional documents that form the bill of sale or assignment of accounts, Furthermore the affidavit of Angela Schaefer is used in trying to comply with MRE 803(6) to serve as a foundation to use the bill of sale in MIDLAND FUNDING LLC’s motion for summary judgment. 5. The Plaintiff provided an affidavit to support the assignment of the account from an employee named Angela Schaefer who is an authorized representative of MIDLAND FUNDING LLC in an attempt to authenticate a document that was created by another company, this error is fatal to their claims. 6. The plaintiff provides “exhibit B” as proof of validation. This does not meet the requirements listed under the FDCPA. This letter does not contain the name of the original creditor or a total amount owed as required by the FDCPA. 7. In response to the Plaintiff’s continued insistence that defendant Bono asserted only one affirmative defense, this is false. Eight affirmative defense’s were submitted with a disclaimer to add more at a later date with the defendants filed answer to complaint. 8. In response to the Plaintiff’s assertion that the documents subpoenaed from Discount Tire (Plaintiff exhibits “C” and “D”) constitute proof of debt, these do not meet the legal requirements under the FDCPA and are irrelevant at this time. 9. The Plaintiff cannot clearly show that they have standing to enforce their claims in which they failed to state a claim which relief can be granted., therefore the Defendant has provided a valid defense to the Plaintiff’s claims that will invalidate their cause of action under MCR 2.116©(9). 10. As a result, there is a genuine issue of material fact that shows that the Plaintiff is not entitled to relief for $902.68 plus interest, costs and attorneys fees under MCR 2.116©(9) and MCR 2.116©(10). II. LEGAL STANDARD Summary disposition under MCR 2.116©(9) is proper if a defendant fails to plead a proper defense to a claim. Nicitia v. Detroit (After Remand), 216 Mich App. 746, 750, 550 N.W. 2d 269 (1996). A motion under MCR 2.116©(9) tests the sufficiency of a defendant’s pleadings by accepting all well-plead allegations as true. Lepp v. Cheboygan Area Schools, 190 Mich App. 726, 730, 476 N.W. 2d 506 (1991). If the defenses are so clearly untenable as a matter of law that no factual development could possibly deny plaintiff’s right to recovery, then summary disposition under this rule is proper. Id, quoting Domako v. Rowe, 184 Mich App. 137, 142, 457 N.W. 2d 107 (1990). A motion under MCR 2.116©(10) test the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. Quinto v. Cross & Peters Co., 451 Mich. 358, 547 N.W. 2d 314 (1996).   III. LEGAL ARGUMENT   A. A valid argument has been presented by the defense as to validity of Plaintiff’s claim pursuant to MCR 2.116©(9)(10). Therefore, Plaintiff is not entitled to summary disposition and plaintiff’s claim should be dismissed with prejudice.   ITEM #1. Defendant Exhibit A. Plaintiff did not comply with MCL 600.2145 and MSA 27A.2145. Any affidavit in this section mentioned shall be deemed sufficient if the same made within 10 days next proceeding the issuing of the writ or filing of the complaint or answer, Smith v. Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28 (1999). As stated in the Statement of Facts, the original affidavit by Angela Schaefer attached to the complaint was dated 1 month prior to the filing of the complaint or the issuance of the writ of summons. Though the Defendant was not required to create a counter-affidavit, the Defendant attached an affidavit to his amended answer denying the account, the amount owed and the claims made by the Plaintiff. In Capital One Bank v. Ringelberg, Mich App Ct (Unpublished 2005), We review the trial court’s decision to grant summary disposition under MCR 2.116©(10) de novo. Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The affidavit presented in this case at bar was made more than ten days before the complaint was filed, and therefore was improperly considered by the trial court as prima facie evidence of indebtedness. The plain language of MCL 600.2145 prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit. Plaintiff has not proven that they are the legal owner of alleged account number #6019-1800-3864-0104. As stated in the Statement of Facts by the Defendant and in the Defendant’s brief, the Plaintiff has failed to state a claim where relief can be granted. To stay within the context of a breach of contract claim, under Pawlak v. Redox Corp, 453 N.W. 2d 304, 307 (Mich App 1990), a plaintiff must first establish the elements of a contract, through Thomas v. Leja, 468 N.W. 2d 58, 60 (Mich App 1991), quoting Detroit Trust Co v. Struggles, 289 Mich 585; 286 N.W. 844 (1939), a valid contract requires (1) parties competent to a contract (2) a proper subject matter (3) Legal Consideration (4) mutuality of agreement (5) mutuality of obligation, a Plaintiff must then establish a breach of contract and damages resulting from such breach, Alan Custom Homes v. Krol, 667 N.W. 2d 379, 383 (Mich App. 2003). ITEM #2. Defendant Exhibit B. Defendant responds to Plaintiff’s assertion to only one Affirmative Defense by entering copy of answer to complaint which clearly shows seven Affirmative Defense’s and letter submitted with answer to complaint. ITEM #3. Plaintiff’s own evidence, Exhibit A, does not show that the alleged account #6019-1800-3864-0104 is part of either of the two transactions. Furthermore, they do not show any link or transactions between the Plaintiff, Midland funding LLC, and G.E. MONEY BANK, the original creditor, thus they have no legal standing to make a complaint or claim. Evidence does not even list G.E. MONEY BANK as a seller. There is little case law in this state regarding what elements are necessary to create an assignment. In Westin v. Dowty, 163 Mich App. 238, 242, 414 NW2d 165(1987), this court opinioned “there must be a perfected transaction between the parties which is intended to vest in the assignee a present right in the thing assigned.” (Also see ITEM #1) ITEM #4 & 5. In the last couple years, the Court of Appeals has ruled a couple of unpublished cases that shows the errors that are made when pleading the assignment. A) Unifund CCR Partners v. Riley Mich App (2010) Brown Bark II LP v. Bay Area Floor Covering & Design Inc, (Unpublished) Mich Court of App (2011). Both cases state that without the sales agreement and the account purchase agreement showing that the Defendant's account was one of the accounts clearly shown in the sale, the Plaintiff lacked standing to sue. As to the Affidavit of Debt from Angela Schaefer, (see Defendant exhibit A) the affiant has provided no proof that they are knowledgeable or have experience to effectively “review” the creditors method of keeping records. The affiant of Affidavit of account does not claim to have personal knowledge of how business records were kept at the original creditor. Therefore, the court cannot rely on affiant’s (Angela Schaefer) account statements which she proffered to establish Defendants default based on Hearsay rules. Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432 (6th Cir. 2006); Delawder v. Platinum Financial, 443 F. Supp. 2d 942 (S.D.Ohio March 1,2005); Griffith v. Javitch, Block & Rathbone, LLP, 1:04cv238 (S.D.Ohio, July 8, 2004); Gionis v. Javitch, Block & Rathbone, 405 F. Supp. 2d 856 (S.D.Ohio. 2005); Blevins v. Hudson & Keyse, Inc., 395 F. Supp. 2d 655 (S.D.Ohio 2004), later opinion, 395 F.Supp.2d 662 (S.D.Ohio 2004); Stolicker v. Muller, Muller, Richmond, Harms, Meyers & Sgroi, P.C., 1:04cv733 (W.D.Mich., Sept. 8, 2005). ITEM #6. The plaintiff provides “exhibit B” as proof of validation. This does not meet the requirements listed under the FDCPA 15 USC § 1692g . This letter does not contain the name of the original creditor or a total amount owed as required by the FDCPA. ITEM #7. See item #2, Defendant Exhibit B. ITEM #8. Plaintiff’s Exhibit C and Exhibit D show that plaintiff has no actual records to attest to the alleged debt of the Defendant and thus no standing to claim a summary Disposition Judgment. Plaintiff has not adhered to 15 USC § 1692g - Validation of debts. In Unifund CCR Partners v. Riley, Mich; Court of Appeals (2010), In this case, the submitted evidence shows that the defendant originally had an open account based on the credit card issued by Citibank. Plaintiff also provided evidence that payments were made on the account, thereby establishing that a debt was owed. However, this is insufficient to transform an open account to an account stated without evidence that the Defendant was the one who made payments. There is no evidence that Defendant made the asserted payments. IV. CONCLUSION The Defendant has clearly shown in his Opposition to Summary Disposition Judgment that the Plaintiff is not entitled to judgment as a matter of law by showing that Defendant did plead a valid defense and that Plaintiff did not properly file his complaint, had a lack of stipulated facts, a lack of proper foundation to admit evidence and the lack of personal knowledge of the affiants . For the reasons set forth above, Defendant respectfully requests that this Honorable Court deny Plaintiff’s Motion for Summary Judgment of principal, costs and attorney fees in the amount of One thousand seventy five dollars and 68/100 ($1075.68) and Dismiss Plaintiff’s Complaint with prejudice. Respectfully Submitted, ___________________________
  4. 1. No formal discovery. They filed their complaint with an affidavit of debt and nothing else. Before I could file a motion to dismiss, they filed their Motion for Summary Disposition. In this, they served a subpoena on "Discount Tire" who then responded with two different sales drafts with my name and address on them and showing that they were purchased with a G.E. Money Bank credit card. 2. One of the sales drafts lists the vehicle as a Trailblazer. The answer I was going to give was that I don't recall, therefore, that is why I'm asking for documentation and proper validation. They can't tell me which set of tires that I supposedly owe for as they are refering to two differant purchase's. They haven't provided fee's, interest or payment history to even prove the account is mine. 3. No But I'm 99% sure one or both of these were paid off. 4. Don't think so because I have been asking for it since they sent the first letter. I will see if I can put my Summary Disposition Arguement in here.
  5. Hello. Can anyone tell me what proper procedure for a summary disposition hearing is? I'm being sued by Midland Funding in Shelby Township. I answered their summary disposition with good arguments from this site. A case precedding mine was also a debt case with Midland Funding which the defendant had a lawyer who made the same arguments I made. The results were totally different. The Judge listened in the preceeding case and said he would review the info and make a judgement. In my case, he listened to my argument then, without commenting on my arguments, told me I was not a normal person because I didn't file a police report when I was served with the complaint. I had told the JDB that I didn't make the purchase and to please give me documentation to prove it which is what the lawyer told the Judge. This is where it gets wierd. I told the Judge that I didn't file a police report because it will not help me in this matter and I needed to deal with this lawsuit first. He then said "Well I can solve this with 2 questions." He then put me under oath and asked 1) Do you own or have owned a Trailblazer? I answered yes. 2) then asked if I had bought tires from Discount tire to which I answered "I may have but I don't believe that I bought...." The Judge stopped me and said "That is not what I asked" He then threatened me with 15 years for perjury and told me to answere yes or no so I answered no. Is this proper for Summary Disposition? Why is he allowed to put me under oath and interogate me for the Plaintiff? I thought Summary Disposition is just arguements? Please help. The Plaintiff's Motion for Summary Disposition was partially granted and partially denied but the Judge told the plaintiff to be ready at trial and told me if the Plaintiff provides documentation, he will charge me with perjury. I recieved a "Notice of Submission of proposed order on Plaintiff's Motion for Summary Disposition" today 10/3/13. It will be submitted for signing if no objections are filed with the clerk within 7 days. I also recieved a court notice that original trial has been moved to 3 weeks later for a evidentiary hearing/trial. What does all this mean and can I still fight it? I feel like the Judge wanted me to say yes to the tire purchase even though he obviously doesn't have the proof in front of him. If I did that, its case closed.
  6. Hello. Can anyone tell me what proper procedure for a summary disposition hearing is? I'm being sued by Midland Funding in Shelby Township. I answered their summary disposition with good arguments from this sight. A case precedding mine was also a debt case with Midland Funding which the defendant had a lawyer who made the same arguments I made. The results were totally differant. The judge listened in the preceeding case and said he would review the info and make a judgement. In my case, he listened to my argument then, without commenting on my arguments, told me I was not a normal person because I didn't file a police report when I was served with the complaint. I had told the JDB that I didn't make the purchase and to please give me documaentation to prove it. This is where it gets wierd. I told the Judge that I didn't file a police report because it will not help me in this matter and I needed to deal with this lawsuit first. He then said "Well I can solve this with 2 questions." He then put me under oath and asked 1) do you own or have owned a Trailblazer? I answered yes. 2) then asked if I had bought tires from Discount tire to which I answered "I may have but I don't believe that I bought...." The Judge stopped me and said "That is not what I asked" He then threatened me with 15 years for perjury and told me to answere yes or no. Is this proper for Summary Disposition? Why is he allowed to put me under oath and interogate me for the Plaintiff? I thought Summary Disposition is just arguements? Please help. I believe he granted a partial judgement but told the plaintiff to be ready at trial.