cookie74

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About cookie74

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    Michigan
  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 ju
  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
  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 acc
  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
  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 it
  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 f
  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 mysel
  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
  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