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  1. Thanks - it is a tough hurdle in Michigan to defend an account stated. But the Supreme Court seems to assume or it was fact that Plaintiff attached and "AFFIDAVIT OF ACCOUNT STATED". IF I understand you, a missing affidavit would just remove their prima facia case but they could proceed to prove account stated by proving mutual assent, and any payment made, regardless of the lack of substantiation as to the balance due, proves that and the plaintiff's damages without proving the amount? That seems to eliminate the need for affidavits altogether. What am I missing here?
  2. Hi BMC - an thank you! Yes Discover is Plaintiff, represented by a local law firm (that is a debt collection mill - thus sloppy work like not including an Affidavit). Exhibits A and B are the last two statements. They are using MCR 2.116©(10) which tests whether there is factual support for a claim. "The court must consider the pleadings, affidavits, depositions, admissions, or other documentary evidence available to it. I filed a response denying but not an Affidavit. Failure to attach an Afffidavit to the original complaint means they don't have a prima facia case of account stated. They claim I have no genuine issues of material fact (I do), and asked for MSJ. yet if forced to prove an open account, they haven't provided agreement (other than general policy) and first four years of statements. How can damage can damages be calculated when I have no idea what the alleged balance transfers were, terms, and changes, etc.?
  3. Thanks and so many good points. Ok so I uploaded the redacted Affidavit. Here are the problems I saw. 1. It was filed four months following the Complaint (October, 2014) 2. It was stated in the MSJ that it was in the Complaint and in the MSJ (January 2015) and was not. The MSJ had a list of Exhibits right above the signature swearing the truthfulness and it was NOT included as an Exhibit. (Mich law requires a written instrument to be attached MCR 2.113(F)(1). 3. At the first hearing (Friday Jan 31st) the Judge gave us a week to amend filings because they had no affidavit or succession from Discover Financial Services through 4 entities to Plaintiff, Discover Bank. 4, Plaintiff created the attached Affidavit on Feb 2, 2015 (the following Monday when courts were closed in both states due to storms) but failed to serve me until the hearing Friday February 6th. 5. The Affidavit appears to be a form. Font type and size for Affiant is different than the form. 6. Paragraph 3 The Afffiant claims "is made on my personal knowledge (SUBJECT MISSING of what - art history, snowboarding) and in support of the Plaintiff's suit." 7. Paragraph 4 seems to say she knows people who have personal knowledge and computers who has personal knowledge. Again, she did not attach the records she claims to have personally reviewed. Required? 8. The class identified "Terms level 20H" means nothing. There is no interest rate, on the application with redacted balance transfers. 9. Missing the first 4 years and material terms make the last statement attached useless in calculating damages. 10. So account stated is gone, the missing Affidavit should strike the MSJ. He could dismiss without prejudice, but there is case law that suggests that lack of diligence and/or false pleadings (I swore we included an October Affidavit and we didn't) could allow a judge discretion to dismiss with prejudice. Thanks for your help! RedactedAffidavit.pdf
  4. Thanks folks. Let me clarify. The Complaint was filed in October 2014. There was no Affidavit attached. The MSJ was filed in January. Although it states "as in a form letter style", that an affidavit was filed with the Complaint and the MSJ, it was not. They had a list of Exhibits on the MSJ and it wasn't even listed. The Judge saw this, gave us both a week on Friday July 31st. They created a new Affidavit dated Monday February 2nd (when the Courts were closed). 1) So it was a "dog ate the original one" on both pleadings, so we just made a new one. 2) That the affiant was able to gain personal knowledge of my account within one day, when courts were closed (and most businesses). So I think the question here is can they say that MCL 600.2145 states 10 days before but it silent on filing an affidavit 4 months later than the Complaint (which seems absurd). So (if it is untimely) they lose their account stated prima face case, and have to proceed on a MSJ on an open account. But they failed to poduce the first 4 years of statements and an underlying agreement. But the judge asked if they would just refile? Meaning if he dismisses their case without predjudice, they just do it right this time. They said they would. That sounds like double jeapordy to me? Can I file a motion to dissmiss because of their fatal error? Thanks again
  5. Hello All - Anyway ever have a Bank fail to submit an Affidavit in the Complaint and Motion for Summary Judgement and then just magically produce a new one dated that week and served that day to Defendent in Court? I did. I have been watching this forum for help as I have decided to fight BIG BANK Discover over a credit card debt. I think I have zeroed in on something but need some case law. 1) They filed the Complaint in October, 2014 using an account stated theory with 1 statement attached for a 10 year account. 2) I filed an answer but not an affidavit. I didn't know that I needed to. But I did find some case law disputing that, but the REAL gangbuster is they neither did they. 3) Then they moved for Sumary Disposition, and I responded with genuine issues of material fact, but in the Motion, they explicitly said twice that they had properly filed and Affidavit to the Complaint and that it was also attached to this Motion. Yet, their exhibit summary did not contain it listed and it wasn't there. 4) The Judge offered them two weeks, and the lawyer shot back one. This was on a Friday when on that next Monday both Michigan and Ohio were shut down, including Courts due to a blizzard. The next Friday was the new hearing. I amended my Response with more time and served them on Wednedsay. On Thursday I went to the court to see if they filed anything yet, and they had filed an Affadavit DATED that previous Monday February 2nd, 2015 not October 2014 when they filed the Complaint. It was the standard Robo Affidavit where Discover Bank has its factory in Franklin Ohio by an Abigail Paton of Discover Financial Products (4 entities removed from Discover Financial Services with which the alleged contract was made). I googled and saw Ms. Patton has signed Affidavits as far away as SanDiego. 5) I prepared a Motion to strike that night. Plaintiffs waited to serve me until the actual hearing, and I served them back my pre-paid Motion. Their lawyer got out his law book and started fliiping through it. I asked the Judge to Move to Strike, and he said he would Strike but then asked the Plaintiff if they would just re-file again and he said yes, so the judge changed his mind and said he would give me more time. I said I didn't need it but he seemed like he wanted my motion in writing. I pointed out that the affidavit they neglected to submit with the Complaint affected their account stated theory, and they have failed to produce 4 years of statements, an orginal agreement with terms on it, so there is no way to determine the amount. The six years I did get had 2 purchases totoalling $700 yet I paid $15,000 (or 1700% interest) as far as what they could prove. He "gave me" 2 more weeks but their lawyer was too busy so it ended up being six weeks. QUESTION: Can the Bank claim they filed an affidavit with a Complaint dated in October 2014 and then again in a January 2015 Motion to dismiss and then when compelled to produce the Affidavit because I showed up (unlike 90% who don't bother) and produce an Affidavit dated the next business day (Monday - blizzard Day) 2015 and use it like it just fell behind a file cabinet and they found it? That would certainly make it cheaper for Banks to eliminate the paperwork until someone demands it. You can't swear in legal proceedings that you did something - have someone with knowledge review your records (even though sehe failed to attach them as required) before filing the Complaint, and wait unti the second hearing for a Summay Disposition to creat a new Affidavit. I know there is a problem there, but can't find the Michigan law or case law to cite for the next hearing. Please help - you scholare are fabulous!
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