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  1. Hello All, I have also attached a word document of my Opposition For Summary Disposition, in addition to posting it directly in the message board, to assist in providing feedback. Copy of Response To Summary Disposition For CI.docx
  2. DEFENDANT’S BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION STANDARD OF REVIEW Summary disposition under MCR 2.116(C)(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 NW2d 269 (1996). A court may look only to the parties’ pleadings in deciding a motion under MCR 2.116(C)(9), MCR 2.116(G)(5). A motion under MCR 2.116(C)(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 NW2d 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 NW2d 107 (1990). Pro se pleadings are to be construed liberally and expansively, affording them all opportunity in obtaining substance of justice, over technicality of form. Maty v Grasselli Chemical Co., 303 US 197 (1938). MCR 2.116(C)(10) provides for summary disposition when there is no genuine issue regarding any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim, as supported by documentation containing “content or substance [that] would be admissible as evidence to establish or deny the grounds stated in the motion.” MCR 2.116(G)(6); see also Adair v Michigan, 470 Mich 105, 120; 680 NW2d 386 (2004); Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999). A trial court may grant a motion for summary disposition if the pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co., 451 Mich 358, 362, 547 NW2d 314 (1996), citing MCR 2.116(G)(5). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen. Motors Corp., 469 Mich 177, 183, 665 NW2d 468 (2003). “If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party.” MCR 2.116(I)(2). Sharper Image Corp. v Dep’t of Treasury, 216 Mich App 698, 701, 550 N.W.2d 596 (1996);Washburn v Michailoff, 240 Mich App 669, 672; 613 NW2d 405 (2000). INTRODUCTION Plaintiff Cavalry SPV I, LLC is a third-party debt collection company that purchases large electronic portfolios of stale defaulted consumer debts, for which it pays pennies on the dollar, in order to collect on them by instituting formal legal action. Plaintiff purportedly is the assignee of a Citibank, N.A. account allegedly opened and defaulted upon by the Defendant. Plaintiff has filed its Motion for Summary Disposition on its claim of an account stated and that the Defendant has failed to plead a valid defense. Because Plaintiff has failed to meet its burden of evidentiary support for its claims and Defendant has raised an affirmative valid defense; summary disposition is not appropriate and this Honorable Court should deny Plaintiff’s motion. ARGUMENT I. Defendant’s Amended Answer Pleaded A Valid Affirmative Defense Defendant filed an amended Answer to Plaintiff’s Complaint, denying Cavalry SPV I, LLC’s allegations based on lack of knowledge or information to form a belief as to truth of the allegations, MCR 2.111. Under a separate heading, Defendant pleaded an Affirmative Defense: Defendant asserts and evokes the private arbitration clause within the subject card agreement and compels the court to order this case to JAMS arbitration and stay the case until the completion of arbitration. The subject card agreement furthermore states that either party “may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy.” The general policy of this State is favorable to arbitration. The burden is on the party seeking to avoid the agreement, not the party seeking to enforce the agreement. Fromm v Meemic Ins Co, 264 Mich App 302, 305; 690 NW2d 528 (2004). Attached to a submitted Motion to Compel Private/Contractual Arbitration is Defendant’s Affidavit denying ownership of account and a written request for contractual arbitration. This affidavit was properly filed and “shall be deemed prima facie evidence of such” pursuant to MCL 600.2145. Summary disposition is inappropriate under this subrule [MCR 2.116(C)(9)] when a material allegation of the complaint is categorically denied. Village of Dimondale v Grable, 240 Mich App 553, 564‐565 (2000). In fact, our Supreme Court set aside summary disposition not because of disputed facts, but because the denial of material fact constitutes the pleading a valid defense. August v Poznanski, 383 Mich 151, 155; 172 NW2d 807 (1970). II. Plaintiff Fails To Establish Prima Facie Evidence Of An Account Stated; Defendant Establishes Prima Facie Evidence Against Plaintiff’s Claim Plaintiff’s Complaint alleges a claim for an Account Stated. Plaintiff did not provide a signed and notarized affidavit from Plaintiff, Cavalry SPV I, LLC or Plaintiff’s assignor, Citibank, N.A stating account ownership, sale, and/or balance within 10 days of the Summons and Complaint, as required under MCL 600.2145. Under this statute, in order to have prima facie evidence of an account stated, a copy of the account statement must be “annexed” to an affidavit made “within 10 days next preceding the issuing of the writ or filing of the complaint or answer.” In compliance with MCL 600.2145, the Defendant submitted his amended Answer dated, October 29, 2018, and an affidavit, dated October 30, 2018, attached to Defendant's Motion To Compel Private/Contractual Arbitration denying Plaintiff’s allegations of indebtedness and claim of an account stated. Because the Defendant submitted a timely and complaint affidavit, Defendant’s denial establishes prima facie evidence of a lack of assent to an account stated. “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). III. Plaintiff Has Failed To Show Defendant’s Assent To Its Account Stated Claim An “account stated” refers to a “contract based on assent to an agreed balance”; which, like all contracts, must be created through mutual assent. Fisher Sand & Gravel Co v Neal A Sweebe, Inc, 494 Mich 543, 557, 561-562; 837 NW2d 244 (2013). “Parties assent to a sum as the correct balance due from one to the other; and whether this operation has been performed or not, in any instance, must depend upon the facts.” White v Campbell, 25 Mich 463, 468 (1872). An express contract arises where the parties expressly agree to the sum due. Fisher Sand & Gravel Co, 494 Mich at 558. A party’s acceptance may also be inferred where the party makes payments on the amount due or receives an accounting and fails to object within a reasonable time. Corey v Jaroch, 229 Mich 313, 315; 200 NW 957 (1924); Keywell & Rosenfeld v Bithell, 254 Mich App 300, 331; 657 NW2d 759 (2002). When silence forms the basis for inferring assent to a sum owed, the circumstances involved must support an inference of assent. Thomasma v Carpenter, 175 Mich 428, 436-437; 141 NW 559 (1913). In this case, the circumstances do not support the inference of assent. Defendant denied he ever received any communication about this alleged debt from Plaintiff or Plaintiff’s alleged assignor to be able to verify the alleged account or dispute the amount Plaintiff claims is due and owing (Def.’s Aff. paras. 6). Plaintiff has not submitted facts or evidence of the manner or method nor provided the actual “repeated demands” for payment of the alleged account stated debt. Merely sending bills or attaching a few bills to the complaint or motion for summary disposition does not create an account stated. Absence of evidence establishing continued course of dealing, or other circumstances suggesting balance struck required for account stated, precludes establishing liability upon accounts stated merely on proof of billing and accounts receivable ledger. R. G. Moeller Co. v Van Kampen Constr. Co.., 57 Mich App 308, 225 NW2d 742, (1975). There must be some acknowledgement by the party billed that he admits owing the debt and that he further admits the amount claimed is accurate. The Plaintiff does not show that Defendant ever acknowledged he owes the Plaintiff anything and there has been no acknowledgment by the Defendant that he owes the amount claimed (Def.’s Aff. para.8). The purported account statements (Pl.’s Ex. A) do not show a continued course of dealing as no use or purchases are evidenced. The Federal Truth in Lending Act (TILA) provides that: “In any action of a credit card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show the use was authorized….15 U.S.C. 1643(b). If the use was not authorized, the card holder cannot be liable for more than $50, and only then if the issuer proves that it satisfied many conditions. 15 U.S.C. 1643(a). accord 12 C.F.R. 226.12. The amount due on the alleged June 3, 2015 statement is $1,323.76, and does not indicate this is a charge-off balance or that the account was charged off, with a final balance struck. As stated above all the cases were brought forth by original creditors. A debt buyers has a harder time complying with TILA since they did not witness or have first hand knowledge if the charges were authorized and if the Defendant is liable for anything more than $50 under 15 U.S.C. 1643(a). Further, looking at recent case law, in Unifund CCR Partners v. Nishawn Riley, unpublished opinion per curiam of the Court of Appeals, issued February 18, 2010, (Docket No.287599), Unifund provided evidence that payments were made on the account, thereby establishing that a debt was owed to Citibank. However, the Court held that this was insufficient to transform an open account to an account stated without evidence that Riley was the one who made payments. In the present case, the Defendant did deny the account, denied the amount owed, denied receiving billing statements, and denied making payments on the account in the Defendant’s answer, affidavit, as well as this brief. CONCLUSION As the Michigan Supreme Court has said, the party alleging that a fact is true should suffer the consequences of failing to prove its truth. A plaintiff has the burden of proof (risk of non persuasion) for all elements necessary to establish the case. Kar v Hogan, 399 Mich 529, 539; 251 NW2d77 (1976). Plaintiff has failed to demonstrate an absence of triable issues on material elements of its claim and seek relief before this Court. Accordingly, with material facts at issue, Summary Disposition is not appropriate in this case. WHEREFORE, Defendant Pro Se XXXXXX respectfully requests that this Honorable Court deny Plaintiff’s Motion for Summary Disposition, and if it appears to the Court that the Defendant, rather than the Plaintiff, is entitled to judgment, render judgment in favor of the Defendant under MCR 2.116(I)(2). Respectfully submitted, Dated ________________ _________________________ _________________________ CERTIFICATE OF SERVICE I certify that on this date I served a copy of this answer on the plaintiffs or their attorneys By first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3). Date__________________ Signed ___________________________________
  3. Hello all, Feedback wanted, I am currently working on my brief. Thank you DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY DISPOSITION NOW COMES Defendant in Pro Per XXXXX in Pro Per, and responds to all of the allegations made in the Plaintiff’s Motion for Summary Disposition under MCR 2.116(C)(9) and/or (10) and states as follows: 1. Defendant admits Plaintiff brought its motion under MCR 2.116 (C)(9) and/or (10). Defendant denies Plaintiff has established Defendant’s ownership of unpaid credit card account and breach of conduct. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced business records and an affidavit attached to the complaint. 2. Defendant denies Plaintiff has established Defendant entered into a credit card agreement with plaintiff’s assignor. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the business records and an affidavit attached to the complaint. 3. Defendant denies Plaintiff has established Defendant accepted the terms and conditions of the credit card agreement by using the credit card and making payments. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the business records, and an affidavit attached to the complaint. Plaintiff does not show that defendant made or authorized the use of a credit card for charges claimed. Plaintiff has provided no evidence the defendant made a purchase on this alleged account. Plaintiff has provided no evidence the defendant made any payments on this alleged account. 4. Defendant denies Plaintiff has established Defendant accepted the terms and conditions of the account and was to maintain monthly payments or pay balance in full. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the business records, proof of payments and/or purchases, and an affidavit attached to the complaint. 5. Defendant denies Plaintiff has established Defendant defaulted on the terms and conditions of the account by failing to pay as promised. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the business records, and an affidavit attached to the complaint. Defendant denies Plaintiff has established prima facie evidence of an account stated. Defendant asserts it he has established prima facie evidence of the absence of assent to an account stated between him and Plaintiff. Defendant admits Plaintiff attached as Exhibit C only a portion of the Chain of Title. Plaintiff has failed to produce competent admissible evidence of a valid assignment of title from Plaintiff’s assignor Cavalry SPV I, LLC. Defendant denies an incomplete chain of assignment of hearsay documents is competent evidence to verify Plaintiff's ownership of the Defendant's alleged account, or to demonstrate Plaintiff's standing to adjudicate its claims. Defendant denies as untrue Plaintiff's allegations that attached as Exhibit C are copies of detailed account statements that were sent to the Defendant. Plaintiff has failed to produce competent admissible evidence of a valid assignment of title from Plaintiff’s assignor Cavalry SPV I, LLC, or a qualified witness to attest to the authenticity, trustworthiness, integrity and accuracy of the purported statements. 6. Defendant denies there is currently due and owing to Cavalry SPV I, LLC the sum of $X,XXX.XX plus interest, costs, and attorney fees. Plaintiff does not show that defendant made or authorized the use of a credit card for charges claimed. Plaintiff has not proven the amount of the alleged account is valid or accurate. Plaintiff has provided no evidence the defendant made a purchase on this alleged account. 7. Defendant admits Plaintiff brought its motion under MCR 2.116 (C)(9) and/or (10). Defendant denies there is currently due and owing to Cavalry SPV I, LLC the sum of $1,323.76 plus interest, costs, and attorney fees. Plaintiff does not show that defendant made or authorized the use of a credit card for charges claimed. Plaintiff has not proven the amount of the alleged account is valid or accurate. Plaintiff has provided no evidence the defendant made a purchase on this alleged account. 8. Defendant denies the Answer submitted fails to refute an obligation to the Plaintiff. Defendant denied all nine complaints in the Answer submitted in response to the original Complaint. 9. Defendant denies that he failed to raise a valid defense, affirmitive or otherwise to Plaintiff's Complaint allegations. Defendent properly asserted the existence of an agreement to arbitrate as a valid affirmative defense in a timely manner. MCR 2.111(F)(3)(a)(b). WHEREFORE, Defendant in Pro Per XXXXXX respectfully requests this Honorable Court deny Plaintiff's Motion for Summary Disposition. If it appears to this Honorable Court that the Defendant, rather than the Plaintiff, is entitled to judgment, render judgment in favor of the Defendant under MCR 2.116(I)(2). AFFIRMATIVE DEFENSES 1. Defendant asserts and evokes the private arbitration clause within the subject card agreement and compels the court to order this case to JAMS arbitration and stay the case until the completion of arbitration. The subject card agreement furthermore states that either party “may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy.” The general policy of this State is favorable to arbitration. The burden is on the party seeking to avoid the agreement, not the party seeking to enforce the agreement. Fromm v Meemic Ins Co, 264 Mich App 302, 305; 690 NW2d 528 (2004).
  4. Hello all, Thank you for all the help. Update on the case, I have already submitted an Answer and Motion to Compel Arbitration with an affidavit. I sent a letter certified return receipt to attorney requesting arbitration and submitted it as an exhibit. Now our next court date is for both my MTC Arbitration AND plaintiff's Summary Disposition. So I now must submit a response to the plaintiff's summary disposition. I have researched many resources on here and have some templates started. I am just looking for some guidance on the specifics of my response. Attached is the Summary Disposition. Please let me know if I need to post anything else to receive help. The original complaint is already posted in this thread. Thanks for the help! I would have not been able to file the answer or the motion without the help I have found on this board! FYI: The CC contract was also attached as an Exhibit. I have also posted the arbitration section of that agreement in this thread.
  5. Thanks Brotherskeeper, I have until Nov. 26th to file an opposition of summary disposition. I will post their MSD here soon.
  6. I think both of us. I included a copy of the memo below. Please advise if possible. Thanks
  7. At the pretrial conference the judge spoke that I had the affirmative defense of requesting arbitration in my answer. He then stated "well it is now back to the plaintiff" and ordered a summary disposition with a second court date 31 days from the pretrail date . The judge also stated "arbitration is no sweat off my back, makes it easier for me." I received a summary disposition from the JDB about 2.5 weeks later. I have not filed a motion to compel arbitration, yet. I was under the impression I had to wait until the pretrial conference was completed. The summary disposition just restates everything from the original complaint. Now do I file a opposition response to the summary disposition and a motion to compel arbitration? There has been no ruling. The pretrial conference was a result of the mandatory questionnaire that the court mailed me after I submitted my answer. I then received a pretrial conference memorandum from the court. The memorandum states that I filed a general denial answer, with a statement of facts included, to request arbitration. It also states the plaintiff is granted 21 days to file a Motion for Summary Disposition and the defendant is granted 21 days to respond, including their request for arbitration. The matter has been set for continued pretrial conference and Motion for Summary Disposition.
  8. Thanks Brotherskeeper. I filed a answer with the arbitration defense and had a pre trial. At the pre trial the judge ordered a summary disposition. I received the JDB summary disposition. Do I have to respond the that in written form to the court? Thanks
  9. Hi CandyCLC, My answer and/or MTC is due on 8/8 also. Do you recommend filing both or just the MTC arbitration first? Thanks
  10. JDBs/attorneys are pushing back against this arb strategy. I have been reading your posts all day. Thanks for all the great input. You mention:" Michigan has some specific rules that alter the grounds of the motion to compel." And after reading CandyCLC threads I am not sure which is first...MLC or answer?
  11. Thank you. I read the thread you suggested. With what you have seen, do you think arbitration is the way to go? Also if I do go the arbitration route, do I file a separate motion to compel arbitration first or do I just include it in my answer? Could you please point me in the direction of the good templates for Michigan? This is my first time doing any of this. Oh, and I read all of CandyCLC LVNV Summons thread....it is very helpful. Thanks
  12. Yes, thanks for your help. I really appreciate it.
  13. 1.) Does the credit card contract plaintiff submitted as an exhibit have an arbitration section? Yes 2.) Does the copy of the "complete" monthly billing statement plaintiff provided indicate a balance due that is the same as the amount you're being sued for? Yes, the exact amount 3.) Is there an affidavit from Citibank and one from Cavalry? No affidavit that I can tell. Definitely no papers that say affidavit on them. Only paperwork I received was the: Summons & Complaint Form MC 01 (1 page) Complaint signed by the lawyer (2 pages) Monthly Statement (2 pages) CC Contract (19 pages) Bill of sale and assignment signed by Citibank (3 pages)
  14. Thank you for any help provided.