cookie74

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About cookie74

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  1. Sorry I was off the grid for a few days. I put my daughter and Mom on a plane to my sisters yesterday and spend the day tracking the flight and waiting for my daughter to text me that they made the connection (in Atlanta no less) and that they landed safely. WEEE a week with no kid! Back to my brief, I think I have it ready to go, will get the affidavit notarized today and get my discovery together and pop that in the mail also. Thank you everyone for all your insight and help could not have done it without you! I will keep you updated as to what happens with the motion, fingers crossed the judge tosses that and maybe the entire case but that may be a stretch.
  2. WOW! Sorry it took me so long to respond very busy weekend. Thank you for the tweaks! Here's what I did, took the first 3 paragraphs and put them with the part about them not showing the amount of the damages, the next 7 I put with the my part 4 about their business records, hearsay and the affidavit and I took the last three and used that for the conclusion. I was trying to keep mine from saying 'cause I say so, sometimes I know what I want to say but putting into a decently constructed sentence is hard, I knew I should have paid more attention in English class!
  3. I do have that one printed out and another Manlapaz v. Unifund which discussed the affidavit used by unifund.
  4. I took 7 and put it on top front of 3. I thought I was reading some of the same sounding things twice but I thought it was from the fact I have read it so many times and all of the other case law researching and googling I was doing. Tried to add some personal things to it as coltfan suggested, I guess I was trying to make it sound lawerly and full of legal spew but I'm sure the judge is not going to read it front to back so I tried to sum up all the fact in the summary.
  5. 8. Plaintiff fails entirely to show the amount of damages. The amount that Plaintiff claims as damages is not supported by competent evidence. Attached to Plaintiff’s motion is an affidavit of XXXX who states she is the authorized agent and custodian of record for Plaintiff, JRV Holdings LLC, the bad debt buyer. (Defendant’s Exhibit 3, Plaintiff’s Exhibit 4) Affidavits must be made on personal knowledge and state with particularity facts admissible as evidence establishing the grounds stated in the motion. MCR 2.119((1). If the affidavit refers to any papers, sworn or certified copies of those papers must be attached. MCR 2.116((2). Plaintiff’s affidavit signer does not attach, or even identify the data on which her testimony is based and, as an employee of the assignee rather than the original creditor, lacks the requisite personal knowledge to support the Plaintiff’s claim. Defendant does not know if the amount that the Plaintiff asked for in the judgment is true and accurate. Does anyone really know if the balance on their credit card bill was calculated correctly? They sat they are charging a certain percentage but it that what is being calculated? Courts have frequently held that an employee of the assignee of a debt does not have the personal knowledge necessary to testify about events or documents pertaining to the original creditor. See: Martinez v Midland Credit Management, 250 SW2d 481 (Tex Ct of Ap. 2008), Ex 2; Asset Acceptance v Lodge, 325 SW3D 525, (MO App 2010), Ex 3; Cach v Askew, 2011 Mo App LEXIS 429 (Mo App 2011) Ex. 4. 9. Plaintiff filed this motion before Defendant’s sent Plaintiff request for discovery per MCR 2.302 and MCR 2.309. Without discovery information Defendant is unable to defend himself against the charges in the initial complaint. CONCLUSION In summary, Plaintiff has failed to prove any evidence other than hearsay documents that they are the correct and rightful owners of the alleged debt. There is no identifiable or authenticated information showing the Defendant’s name or account number on any document they claim came from the original creditor. The Plaintiff’s affiant could not have personal knowledge of the record keeping of the original creditor as she works for the Plaintiff and would have no possible way of knowing that the records they received were from the original creditor. Therefore this Defendant requests the Plaintiff’s Motion for Summary Disposition be denied. Ok fire away.....
  6. 6. Plaintiff does not show a common law account stated. Even if the documents submitted by Plaintiff were admissible, Plaintiff would still not be entitled to summary disposition based on its theory of an account stated. To probe an account stated, a party must show that the other party agreed he owes the amount claimed. “An account stated means a balance struck between the parties on a settlement.” Watkins v Ford (syllabus) 69 Mich 357 quoted in Kaunitz v Wheeler, 344 Mich 181, 185; 73 NW2d 263 (1955). Kaunitz is similar to the present case. In that case, the plaintiff sent a statement of account to the defendant indicating a balance due of $29,427.10 and defendant replied with a letter in which it stated “we hereby acknowledge our indebtedness to you...” Nevertheless, the court held that the trial court erred in granting plaintiff summary judgment. Defendant’s acknowledgement of indebtedness was not sufficient to show that defendant admitted it owed plaintiff the amount claimed. “The conversion of an open account into an account stated, is an operation by which the 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. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account.” White v. Campbell, 25 Mich 463, 468. “An account stated means a balance struck between the parties on a settlement.” Watkins v. Ford (syllabus), 69 Mich 357. To the same effect, see Kusterer Brewing Co. v. Friar, 99 Mich 190; Thomasma v. Carpenter, 175 Mich 428 (45 LRA NS 543, Ann Cas 1915A, 690). Id. “There can be no liability on an account stated if there has been no mutual agreement and mere presentation of a claim and its retention without objection does not of itself create a liability.” Recreation Corp. of America v. Jack Drury & Associates, Inc. “An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.” Nicolaysen v. Flato “A prima facie case on an account stated is made when the plaintiff proves (1) a statement of the account between the parties is balanced and rendered to the debtor; (2) there is a meeting of the minds as to the correctness of the statement and (3) the debtor admits liability.” Ingalls v. Ingalls Iron Works Co., supra; Barber v. Martin, 240 Ala. 656, 200 So. 787 (1941) One of the elements of a prima facie case, rendering of the statement of account, requires a factual showing that there was proper mailing or evid3ence supporting a finding of mailing due course. “The presumption of the law is that a letter, properly addressed with sufficient postage, and unreturned to the sender whose address is shown on the envelope, was received by the addressee.” Currie v. Great Central Ins. Co., 374 So.2d 1330 (ala. 1979) citing Harrell v. Alabama Farm Bureau Mut. Cas. Ins. Co.,287 Ala. 259, 251 So.2d 220 (1971) Merely sending a bill does not create an account stated. There must be some acknowledgment by the party billed that he admits owing the debt and that he further admits that the amount claimed is accurate. Unlike Kaunitz, the present Plaintiff does not show that Defendant ever acknowledged he owes the Plaintiff anything and there has been no acknowledgment by defendant that he owes the plaintiff the amount claimed. 7. Plaintiff fails to show that it is the owner of the debt alleged. An essential element of the Plaintiff’s action is proof that it is the owner of the debt claimed. The Michigan Court of Appeals recently reaffirmed the necessity of proving the assignment, and announced requirements for doing so, in Brown Bark, II LP v Bay Area Floorcovering & Design, 2011 Mich App Lexis 1003, (May 31, 2011). The court held that the document submitted to prove the assignment of the debt was insufficient for several reasons, including the fact that the plaintiff did not produce the entire assignment agreement. While the allonge was presented as evidence at trial, it was not attached to the note; nor did its reason for failing to do so. Because the trial court did not have an opportunity to review the referenced agreement, and consequently conclude that half-page document constituted documentation of National City’s intent to transfer all of its rights related to the defaulted loan without any power of revocation. In the present case, Plaintiff has clearly not provided the entire agreement by which it allegedly acquired the debt, and there is no evidence that any amount involving the Defendant was included in whatever accounts were identified in the “Assignment and Bill of Sale” referred to in Defendant’s Exhibit 1 Plaintiff’s Exhibit 4.
  7. Plaintiff cites First of America Bank v. Woodward Mini Mall, et al, 1999 Mich App LEXIS 1514 (1999) to support the claim that the partial spreadsheet offered by Plaintiff is admissible evidence. In the case cited by Plaintiff, First of America Bank was the original creditor. That bank had not allegedly purchased an account from another entity. The spreadsheet that was submitted had been created from the bank’s own records based on credit card purchases made at the defendant’s business. The Defendant had an agreement with First America Bank, and the information in the spreadsheet was based upon that bank’s own records. In this case, Plaintiff is a debt buyer who has no connection to Citibank South Dakota NA, the original creditor. There is no agreement between Defendant and Plaintiff nor between Defendant and Unifund Portfolio A LLC or Unifund CCR Partners. Plaintiff also cited People v. Monet to support the admission of their partial spreadsheet. In that case, the prosecution submitted bank records of the victim. Those records came from the bank who created the records. The case cited by Plaintiff did not involve a document created by one entity from information of other entities who claim to have the information from yet another entity. It is not mentioned if the prosecution in People v. Monet properly authenticated the records with an affidavit from the bank. We do know that in this case, there is no affidavit from the original creditor or other alleged owners that attests to the authenticity and accuracy of any documents or information put forth by Plaintiff. Another citation referenced by Plaintiff is People v. Kirtdoll. That was a criminal case that involved the admission of a hospital record to support a conviction of a rape. As in the other case cited by Plaintiff, it did not involve the admission of a record created by a third party from unproven and unauthenticated information of another party who was not the creator of the document. None of the cases cited by Plaintiff involve the introduction of a document (Plaintiff’s Account Statement) created by one business that was based upon information and records allegedly purchased from a second business which allegedly purchased them from a third business who allegedly purchased them from the originator of the records. In this case, Plaintiff is attempting to authenticate records that have not been proven to have been created by or obtained from Citibank South Dakota. “The party wishing to introduce demonstrative evidence at trial bear the burden of showing the evidence has been properly authenticated and identified.” People v. Jambor, 271 Mich App 1, 4-5; 717 NW2d 889 (2006) “However it is necessary that a business record be authenticated before it is admitted into evidence.” People v. Kirtoll, supra. At 387 “To admit a document containing hearsay statements or conclusions based on hearsay evidence, the party must establish that such statements or documents are also admissible.” Merrow v Bofferding, 458 Mich 617, 629 Plaintiff cited MRE 803(6) in an attempt to justify the admission of an account statement which Plaintiff claims is a portion of an alleged spreadsheet created by the original creditor. Plaintiff has offered no evidence to prove the existence of this alleged spreadsheet. Defendant contends that Plaintiff has displayed a level of untrustworthiness. Not only has Plaintiff failed to show that the account statement is part of a spreadsheet, but Plaintiff has claimed that Citibank South Dakota NA is Plaintiff’s assignor. The first line of the second paragraph in Plaintiff’s Brief alludes to that claim. It has been shown that Citibank is not the Assignor of the account. In the Brief, Plaintiff also stated “attached to the Assignment from the original credit grantor to Plaintiff is that part of the spreadsheet which contains Defendant’s account from this credit grantor.” (Defendant’s Exhibit 2 Plaintiff’s Exhibit 4) Again, Plaintiff has not proven existence of such a spreadsheet. “Moreover, the rule provides that records kept in the course of a regularly conducted business activity are not to be excluded unless the source of information or method or circumstances of preparation indicate a lack of trustworthiness.” MRE 803(6); Price v Long Realty, Inc, 199 Mich App 461, 467; 502 NW2d 337 (1993) “…although statements contained in business records are not excluded from evidence, they are hearsay. Thus by definition, someone testifying on the basis of a review of business records does not have personal knowledge of the information in the records.” Manlapaz v. Unifund CCR Partners (2009) The Statements made by xxxxx (affiant) are based upon documents that were not obtained by Plaintiff from Cititbank South Dakota. Plaintiff has admitted the documents were allegedly obtained from Unifund CCR Partners. That entity allegedly obtained them from Unifund Portfolio A LLC. None of the documents offered by Plaintiff has been authenticated by Citibank South Dakota, Unifund Portfolio A LLC or Unifund CCR partners. 5. Plaintiff’s failure to produce the contract on which its claim is based is fatal to its claims. MCR 2.112(F) requires that, when a claim is based on a written instrument, the instrument must be attached to the pleading. (1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is (a) A matter of public record in the county in which the action is commenced and its location in the record is stated in the pleadings; ( In the possession of the adverse party and the pleading so states; © In accessible to the pleader at the pleading so states, giving the reason; or (d) Of a nature that attaching the instrument would be unnecessary or impractical and the pleadings so states, giving the reason. Plaintiff did not attach a copy of any contract to its complaint. Plaintiff’s failure to produce the contract on which its claim is based, as required by MCR 2.113(F), “warrants dismissal of the contract claim without prejudice.” English Gardens Condominium, LLC v Howell Twp, 273 Mich App 69, 81; 729 NW2d 242, 250 (2006). Accord: Woodward Nursing Home v Medical Arts, 2006 Mich App LEXIS 207 (Mich Ct of App 2006), Plaintiff’s failure to attach a copy of the real contract to its complaint is fatal to its claim. In addition to the requirements of the court rule, the contract is necessary to support plaintiff’s claims. Without the real contract, plaintiff cannot demonstrate that defendant agreed to pay any particular rate of interest, late charges, or other fees, and it appears that much of the amount plaintiff claims is comprised of late fees and interest. Defendant also can’t interrupt what his rights are regarding the assignment of debt to a third party.
  8. After the cold bucket of reality water from Coltfan and re-reading and printing out all the posts, I think I have done what was suggested. I will try and highlight what I added to save everyone from reading the entire thing for the 100th time. DEFENDANT’S BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY DISPOSITION ARGUMENT 1. Plaintiff cannot carry its burden to show it is entitled to summary disposition. Plaintiff moves for summary disposition pursuant to MCR 2.116 ©(8)(9) and (10). “In presenting a motion for summary judgment, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions or other documentary evidence.” Smith v Globe Life Insurance Co. 460 Mich 446, 455; 597 NW2d 28 (1999). Only after the moving party has carried its burden does the burden shift to the opposing party to show that a genuine issue of disputed fact exists. Id. “The moving party must specifically identify the matters that it believes have no disputed factual issues.” St. Clair Medical, P C v Borgiel, 270 Mich App 260, 264; 715 NW2d 914 (2006). Cf. MCR 2.116 (G)(4). 2. Although Defendant admitted that he had an open account written agreement with Plaintiff’s assignor, Defendant denies that he has no facts to challenge Plaintiff’s Chain of Title as set forth in the Bill of Sale (Assignments). 3. This case involves Defendant and four other entities. Those are Citibank South Dakota NA, Unifund Portfolio A, LLC, Unifund CCR Partners and Plaintiff, JRV Holdings LLC. Three Bills of Sale have been submitted by Plaintiff (Defendant Exhibit 1 Plaintiff’s Exhibit 4). The first Bill of Sale is allegedly between Citibank and Unifund Portfolio A LLC. The second is between Unifund Portfolio A LLC and Plaintiff’s Assignor, Unifund CCR Partners. Finally, the third between Unifund CCR Partners and Plaintiff. None of the Bills of Sale provided by Plaintiff name Defendant or the alleged account number. Defendant has no way of knowing if the party the Plaintiff purchased the alleged debt from actually owned the debt themselves and the Plaintiff was possibly defrauded by Unifund CCR Partners. Plaintiff may have purchased alleged debt in good faith from Unifund CCR Partners but it may not have been theirs to sell or re-assign to another company in the first place. The Affidavit which Plaintiff asserts is affirmation that the alleged account was included in the sale referenced in the Bill of Sales between Plaintiff and Unifund CCR Partners is attested to and signed by a representative of Plaintiff. The affiant is not a representative of either Unifund CCR Partners or Citibank South Dakota NA. There is no testimony or evidence of any kind from Citibank South Dakota NA attesting that the alleged account was originally sold to Unifund Portfolio A LLC, the alleged first debt buyer. “To constitute a valid assignment there must be a perfected transaction between the parties which is intended to vest in the assignee a present right in the thing assigned.” Weston v. Dowty 414 NW 2d 165 – Mich: Court of Appeals 1987. “ ‘In determining whether an assignment has been made, the question is one of intent. A written agreement assigning a subject matter must manifest the assignor’s intent to transfer the subject matter clearly and unconditionally to the assignee.’” Burkhardt v. Bailey, 680 NW 2d 453 - Mich: Court of Appeals 2004 quoting Brown v. Indiana Nat’l Bank, 476 N.E. 2d 888, 894 (Ind. App., 1985) In an unpublished, yet identical case, Unifund CCR Partners v. Riley, the Michigan court of Appeals ruled that Unifund CCR Partners had failed to prove ownership of a defendant’s credit card account. That case involves two of the same entities that are related to this case. Those entities are Unifund CCR Partners and Citibank. “Defendant also argues that Plaintiff failed to show that it legally acquired Defendant’s account from Citibank. We Agree. Although plaintiff submitted a copy of a Bill of Sale executed by Citibank, it did not provide the portion of the assignment that indicated that this specific account was one of the accounts being assigned.” Unifund CCR Partners v. Riley, Mich: Court of Appeals 2010 (unpublished) 4. Plaintiff also claims that the affidavit Plaintiff’s representative is sufficient to support the admission of business records submitted by Plaintiff. Plaintiff has attempted to submit a “part of the spreadsheet which contains Defendant’s account from this credit grantor” which is allegedly from a spreadsheet provided by Citibank South Dakota. (Defendant Exhibit 2, Plaintiff’s Exhibit 4) Since there is no mention of Defendant’s name or the account number in question on any of the Bills of Sale and no evidence of an alleged spreadsheet has been provided, Plaintiff’s document is meaningless. Records from a third party cannot be placed in their own files and then considered JRV Holdings own business records.
  9. Tell me about it, I actually have most of the Mich civil rules printed out and in a huge 3 ring binder. I now have folders labeled with examples of brief, how to ask for discovery, case law on account stated etc... Trying to read the rules of the court is something short of reading greek which is why I think a lot of people either throw their hands up and give up or hire a lawyer and let them deal with it. I admit I'm sure I'm not doing everything correctly and that may come back and bite me but I make a ton of notes so I can reference them later and have several websites bookmarked so I can find them again easily.
  10. I'm not sure of the terms of that protection thing but that would be about the time he was not working much. They will probably try to come back with some garbage about not notifying them in 'a timely manner'!
  11. HMM rereading number 2 makes it sound like stating the the assignor is Citibank or that there was an account with Unifund.... or am I now reading to much into this?
  12. They called it Credit Protector and it must be based on the balance because each month the amount charged increased.
  13. A lot of it came from the wonderful people here and some I found from just a bunch of googling. They are very very helpful and if it was not for them I would still be on the first sentence crying in the corner or really drunk. I have killed a forest of trees with all the printing that I do. I have no law background but after all the lawsuits filed against me I was considering it . I'm just very tired of being sued by JDB, I have this case and another going to a pretrial conference at the end of the month, apparently I look like a enjoy spending hours researching case law trying to defend myself against the blood suckers!
  14. Found more case law to boost paragraph 7: "There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability." Recreation Corp. of America v. Jack Drury & Associates, Inc. "An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand." Nicolaysen v. Flato "A prima facie case on an account stated is made when the plaintiff proves (1) a statement of the account between the parties is balanced and rendered to the debtor; (2) there is a meeting of the minds as to the correctness of the statement and (3) the debtor admits liability." Ingalls v. Ingalls Iron Works Co., supra; Barber v. Martin, 240 Ala. 656, 200 So. 787 (1941)- This one is a little old! One of the elements of a prima facie case, a rendering of the statement of account, requires a factual showing that there was a proper mailing or evidence supporting a finding of mailing in due course. "The presumption of the law is that a letter, properly addressed with sufficient postage, and unreturned to the sender whose address is shown on the envelope, was received by the addressee." Currie v. Great Central Ins. Co., 374 So.2d 1330 (Ala. 1979), citing Harrell v. Alabama Farm Bureau Mut. Cas. Ins. Co., 287 Ala. 259, 251 So.2d 220 (1971).
  15. Here's the affidavit they submitted with the motion: the usual opening they are of legal age and can testify 1. that the affiant is the keeper of the records of plaintiff. the affiant makes this affidavit in affirmation of plaintiff's motion for summary disposition. 2. i have reviewed the books and records of plaintiff and am familiar w/ the account of xxxx. plaintiff books and records contain account records and information of the account referenced below provided to plaintiff by the original creditor referenced below or its assignee. the records are kept in the ordinary course of a regularly conducted business activity & are made either by a person having personal knowledge of the information contained therein or based on information conveyed by a person having personal knowledge of the information contained therein, and i know from my experience in reviewing such records & from common knowledge of how credit cards work that those records are made and maintained by individuals who have a business duty to make entries in the records accurately at or near the time of the event that they record. 3. the records consist of both hard copy information & electronic information that is generated, stored and maintained in accordance w/ generally accepted standards in the retail & financial industries by individuals that possess the knowledge & training necessary to ensure the accuracy & reliability of the records. 4. the business records furnished to plaintiff show that defendant opened a credit card account w/ citibank bearing account number xxxx 5. the defendant defaulted in their payments to the OC 6. for good and valuable consideration, plaintiff purchased the account from the OC or its assignee & plaintiff is the current creditor of the account 7. all credits & payments have been properly applied, etc..... 8. there is now due and payable from the defendant the sum of $xxxxx exclusive of accrued interest, costs and statutory attorney fees as permitted by law or contract. 9. to the best of affiant's knowledge and based upon info provided by the OC & a search of the data bank of the dept of defense manpower data center said defendant is not in the active military service of the US. I was going to respond with: I, xxxx defendant in the instant action hereby swears under oath & depose & says: 1. I am over 18 years of age & competent to make this affidavit. If called to testify I can & will testify to the facts in this case. 2. I deny an account between myself and plaintiff, JRV holdings & therefore there is no account stated between the parties. 3. I deny the alleged balance the plaintiff, JRV holdings, states is owing as they have not put forward proof as to how said balance was calculated. 4. I deny there is any contract or agreement alleged or otherwise between myself and plaintiff, JRV holdings, they have offered no proof of said agreement. 5. Any remarks or statements made by plaintiff, JRV holdings, against the defendant have been disputed with the plaintiff.