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Motion for Summary Disposition to Dismiss Platintiff's Summo


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A CA is trying to sue me on an alleged credit card debt. I have DV'd them several times and all they have come up with is an arbitration award that the previous CA submitted to arbitration with the National Arbitration Forum on the behalf of the Bank. I don't beleive that the award is reliable Debt Validation because the current CA has no first hand knowledge of any facts concerning the alleged award.

Could someone please look over my Motion and let me know if my words are correct or if I am way out of line with my statements? Any input would be greatly appreciated.

Thanks, Donnie

STATE OF MICHIGAN

IN THE 16TH CIRCUIT COURT FOR THE COUNTY OF MACOMB

CHASE MANHATTAN BANK USA, N.A.

SUCCESSOR IN INTEREST TO BANK

ONE DELAWARE, N.A.

Plaintiff,

VS CaseNo. 04 - 4774 - CZ

DONALD K.............

Defendant

_________________________________/

SHERMETA & ADAMS, P.C.

BY: KYLE J. VONALLMEN (P52776)

Attorneys for Plaintiff

P. O. Box 5016

Rochester Hills, Michigan 48308

248 652-8200

Donald K..............

Defendant, in Pro Per

.................. Street

....................., Michigan ...............

586 ...-....

_________________________________/

There is no other pending or resolved civil action arising out

of the transaction or occurrence alleged in the complaint.

DEFENDANT’S MOTION FOR SUMMARY DISPOSITION TO DISMISS

PLAINTIFF’S SUMMONS AND COMPLAINT

PURSUANT TO MCR 2.116©(5) and MCR 2.116©(10)

Now comes your Defendant Donald K.......... in Pro Persona for Defendants MOTION FOR SUMMARY DISPOSTION TO DISMISS PLAINTIFF’S SUMMONS AND COMPLAINT pursuant to Michigan Court rules 2.116©(5) and MCR 2.116©(10) and states to this Honorable Court as follows:

1. Pursuant to MCR 2.116©(5), the alleged Plaintiff’s attorney lacks the legal capacity to sue in this matter for the following reasons:

A. The alleged Plaintiff’s law firm, Shermetta and Adams P.C. unlawfully filed this Summons and Complaint on November 16th, 2004 alleging that the alleged Plaintiff CHASE MANHATTAN BANK USA, N.A. SUCCESSOR IN INTEREST TO BANK ONE DELAWARE, N.A. is the Plaintiff and is suing the Defendant for $5,498.22.

B. A supervisor by the name of Deedra G.... of CHASE MANHATTAN BANK USA, N.A.SUCCESSOR IN INTEREST TO BANK ONE DELAWARE, N.A. informed the Defendant on March 28th, 2005 that they are not the Plaintiff in this case, they are not suing the Defendant and that they have not retained the law firm Shermetta and Adams P.C. to sue the Defendant in this case.

C. If the alleged Plaintiff’s attorney, Shermetta and Adams P.C. can not produce a contract signed by CHASE MANHATTAN BANK USA, N.A.SUCCESSOR IN INTEREST TO BANK ONE DELAWARE, N.A. and themselves that specifically authorizes them to sue the Defendant in this case on the banks behalf, this case should be dismissed on grounds of misrepresentation and lack of legal capacity to sue in this matter.

2. Pursuant to MCR 2.116©(10), there is no genuine issue as to any material fact that supports the alleged Plaintiff’s attorney’s Summons and Complaint based on the following facts:

A. Originally on or before September 27th, 2004 the Defendant received two generic letters from the alleged Plaintiff’s attorney informing the Defendant that two alleged accounts were forwarded to their office which each stated an amount of money that the Defendant believed that he did not owe. The letters stated that if the Defendant disputed the debts, the law firm would obtain verification from their client and provide the name address and mail it out to the Defendant. (See Exhibit A pages 1 and 2)

B. On September 29th, 2004, under public law pursuant to The Fair Debt Collection Practices Act [15 USC 1692g(B) Validation of debts] and [15 USC 1692c,c Communication in connection with debt collection], the Defendant faxed and mailed out a letter to Shermetta & Adams disputing the alleged debts and gave notification for them to CEASE AND DESIST in any and all attempts to collect the alleged debts and also gave notice that telephone calls will not be accepted at Defendant‘s home. (See Exhibit A pages 3 and 4)

C. Pursuant to the Federal Consumer Protection Laws of the Fair Debt Collection Practices ACT (FDCPA) under [Validation of Debts 15 USC 1692g(B)] it specifically states that if a consumer disputes the debt, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains reliable verification and the name and address of the original creditor and mails it out to the consumer. (See FDCPA Laws - Brief and Support)

D. The alleged Plaintiff’s attorney did not comply with the Defendant’s lawful request for Debt Validation.

E. The Defendant sent the alleged Plaintiff’s attorney (4) four more letters dated November 27th,2004, December 15th, 2004, December 25th, 2004 and March 28th, 2005 requesting validation of the alleged debts and gave notice to cease and desist in any and all collection attempts including phone calls to Defendant’s house pursuant to the Fair Debt Collection Practices Act. (See Exhibit B letters sent to Shermetta)

F. The alleged Plaintiff’s law firm continued to call the Defendant’s home several hundred times on the average of (5) times a day through the end of December 2004, ignoring FDCPA laws and did not stop calling until the Defendant issued a complaint to the Michigan Attorney General in late December.

G. To this date the alleged Plaintiff’s attorney has still not provided the Defendant or this Court with verification or any documents from the alleged Plaintiff CHASE MANHATTAN BANK USA, N.A. SUCCESSOR IN INTEREST TO BANK ONE DELAWARE, N.A. that evidences that the Defendant ever had a signed contract or agreements with the bank or had any alleged debts or any bank statements of accounting or receipts of any kind that would comply as being lawful reliable Debt Validation.

Furthermore, the law firm Shermetta and Adams P.C. has still not even provided the address of the alleged Plaintiff to the Defendant.

H. The alleged Plaintiff’s attorneys has had several month’s to provide the Defendant with reliable, factual, verifiable, material debt validation and they have repeatedly refused and have failed with the reason being that they do not have documents that can validate the alleged debt.

I. Pursuant to Federal Law of the Fair Debt Collection Practices act [15 USC 1692g(B) Validation of Debts] and MCR 2.116©(5) with no material facts presented, the alleged Plaintiff’s attorney Shermetta and Adams cannot legally file this law suit against the Defendant and there are several cases of precedent to back this up including Spears vs. Brennan. (See Exhibit C)

3. The alleged arbitration award that was submitted in this case by alleged Plaintiff’s attorney is nothing more than hearsay, based on the following facts:

A. The alleged Plaintiff’s attorney Shermetta and Adams did not submit the alleged matter to the alleged arbitration proceedings and therefore has no first hand knowledge if there was in fact any arbitration proceedings and can not testify that the alleged award is true and correct or what allegedly took place.

B. The Defendant did not submit to the alleged arbitration proceedings and therefore cannot testify that there was arbitration proceedings held or what allegedly took place. Arbitration must have the consent of both parties. (Federal Arbitration Act).

C. The alleged Plaintiff CHASE MANHATTAN BANK USA, N.A. SUCCESSOR IN INTEREST TO BANK ONE DELAWARE, N.A. did not submit the alleged matter to the alleged arbitration proceedings and therefore cannot testify that their was arbitration proceedings held or what allegedly took place which makes the alleged arbitration award nothing more than hearsay.

D. The reason that the alleged Plaintiff CHASE MANHATTAN BANK USA, N.A. SUCCESSOR IN INTEREST TO BANK ONE DELAWARE, N.A did not submit the alleged matter to arbitration and is not suing the Defendant is because they do not have a signed binding contract or agreements that obligates the Defendant with them.

4. This honorable Court issued a Discovery and Case Evaluation Order that required the alleged Plaintiff’s attorney to furnish their Witness List and Exhibit list to the Defendant by March 17th, 2005 and they failed to do so, clearly showing that they have no Witnesses or Exhibits. (See Exhibit D, Judges Order)

5. By law, a consumer can not be expected to pay an alleged debt if nobody can validate that it exists.

6. This honorable Court can refuse to confirm the alleged arbitration award pursuant to MCR 3.602 (J)(1)(a)

7. The alleged Plaintiff’s attorney has not complied with the lawful requirements of 15 USC 1692g(B) (Validation of Debts) for this honorable Court to award a judgment of any amount to the alleged Plaintiff because there is no material fact or evidence of validating the alleged claim. .

8. This honorable Court can refuse to confirm the alleged Plaintiff’s alleged arbitration award and dismiss this case pursuant to [15 USC 1692e (2)(A),(8),(10) - False or misleading representations]. The alleged Plaintiff is not suing the Defendant.

WHEREFORE, Defendant respectfully requests that this Honorable Court dismiss the alleged Plaintiff’s Summons and Complaint and for stay of proceedings with prejudice.

Donald K.........

STATE OF MICHIGAN

IN THE 16TH CIRCUIT COURT FOR THE COUNTY OF MACOMB

CHASE MANHATTAN BANK USA, N.A.

SUCCESSOR IN INTEREST TO BANK

ONE DELAWARE, N.A.

Plaintiff,

VS Case No. 04 - 4774 - CZ

DONALD KOPTYRA

Defendant

_________________________________/

SHERMETA & ADAMS, P.C.

BY: KYLE J. VONALLMEN (P52776)

Attorneys for Plaintiff

P. O. Box 5016

Rochester Hills, Michigan 48308

248 652-8200

Donald K...............

Defendant, in Pro Per

..............Street

.................... Michigan ..........

586 ...-....

_________________________________/

BRIEF IN SUPPORT OF

DEFENDANT’S MOTION FOR SUMMARY DISPOSITION TO DISMISS

PLAINTIFF’S SUMMONS AND COMPLAINT

PURSUANT TO MCR 2.116©(5) and MCR 2.116©(10)

STATEMENTS AND FACTS:

The alleged Plaintiffs attorney has not satisfied the requirements of Debt Validation pursuant to the laws and requirements of the FAIR DEBT COLLECTION PRACTICES ACT to the Defendant to even have the legal capacity to file this suit.

§ 809. Validation of debts [15 USC 1692g]

(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

(B) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

§ 807. False or misleading representations [15 USC 1962e]

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(2) The false representation of --

(A) the character, amount, or legal status of any debt; or

(8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

The Defendant and all consumers have rights and are entitled to see factual valid evidence of how and what it is that the alleged attorney is claiming is allegedly owed. Their word simply isn't good enough or any typed written words that have been pulled out of thin air. (Plaintiff in a civil case has the burden of proof by a preponderance of evidence). The Defendant’s meritorious defense in this case is that it is alleged Plaintiff’s attorneys Shermetta and Adams’s burden to prove that the debt is not only the Defendant’s (which is in serious question) but also that the total amount allegedly owed is correct.

Since the alleged Plaintiff‘s attorney does not have any first hand knowledge or any evidence to support their case,

NOBODY knows for sure if the alleged debt is owed by the Defendant.

NOBODY knows if there were in fact any arbitration proceedings and NOBODY knows any facts or evidence of what may or may not have been submitted to determine an exact true accounting that determined the amount on the alleged arbitration award.

The Defendant doesn’t know because he did not submit to the alleged arbitration and the numbers look wrong to him,

The alleged Plaintiff’s attorney doesn't know because they didn’t submit the alleged matter to arbitration and they don’t have any witnesses, records or factual paperwork and if they did they would be showing it by now.

In many court cases involving debt collection throughout the country, the following guidelines were used by judges for admissible evidence.

The courts suggested that the debt collector or purchasers furnish a certified true copy of the assignment or contract assigning the claims, along with a certified true copy of any statement or record clearly demonstrating the calculation and the amount of the claim. If monthly statements were furnished to the defendant, certified true copies of those sent statements should be annexed.

Reliable and factual information concerning the claim is required.

Even if attorneys include such items, they are business records of the originating creditor, not the collector or purchasing plaintiff. These business records would have no probative value, because the purchasing plaintiff or collector has no"personal knowledge" of the creation, maintenance, issuance, and tracking of the statements. In the eyes of the court, such affidavits are hearsay and therefore not admissible. A collector or purchasing plaintiff is unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the collector or purchasing plaintiff's business records, as the collector or purchasing plaintiff has no personal knowledge of how those records were created or maintained.

Alleged Plaintiff’s attorney is still in violation of not validating the alleged debt to the Defendant pursuant to the rules of FDCPA 15 U.S.C. § 1692g(B) and this court can deny judgment requested. The appeals court overturned the default summary in Spears vs. Brennan Court of Appeals, Indiana No. 49A02-0003-CV-169 (Exhibit C) because the collection agency lawyer did not meet the rules of the FDCPA 15 U.S.C. § 1692g(B) Validation of Debts.

MCR 3.602 (J)(1) On application of a party, the court shall vacate the an arbitration award if:

(a) the award was procured by corruption, fraud, or other undue means;

Alleged Plaintiff’s attorney has not produced a valid, legal or equitable contract or agreement with Defendant and alleged Plaintiff’s signature affixed upon it and/or a contract or a written agreement that Defendant intelligently agreed on or ever received.

MCLA 600.5033 Sec. 5033 (2) “The Court may modify, correct, or refuse to confirm the award.”

Defendant did not submit to arbitration with alleged Plaintiff.

The alleged Plaintiff did not submit to arbitration with the Defendant.

ARBITRATION MAY ONLY BE IMPOSED WHERE BOTH PARTIES HAVE CONSENTED TO IT.

The United States Supreme Court has repeatedly stressed that "arbitration under the [Federal Arbitration Act] is a matter of consent, not coercion." Allied-Bruce Terminex Cos. v. Dobson, 513 U.S. 265, 270 (1995).

In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995), the Supreme Court emphasized that "arbitration is simply a way to resolve those disputes -- but only those disputes -- that the parties have agreed to submit to arbitration.

("Arbitration . . . is a matter of consent, not coercion . . ."); AT&T Tech., Inc. v. Communications Workers, 475 U.S. 643, 648-49 (1986)

("arbitration is a matter of contract and a party cannot be required to submit to arbitrate any dispute which he has not agreed so to submit.” First Options of Chicago, 514 U.S. at 943.

Michigan law also recognizes that arbitration cannot be compelled where parties have not voluntarily and expressly agreed to arbitrate their disputes.

The Supreme Court has expressly stated that these defenses are available to a party challenging an arbitration agreement. Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996) ( "generally applicable contract defenses, such as fraud, duress or unconscionability, may be applied to invalidate arbitration agreements without contravening [the Federal Arbitration Act]"); Gilmer, 500 U.S. at 33 ("courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract')

Michigan law MCLA 600.5001, paragraph (2) “save upon such grounds as exist at law or in equity for the rescission or revocation of any contract”

A PARTY WILL NOT BE FOUND TO HAVE AGREED TO ARBITRATION UNLESS THAT PARTY VOLUNTARY, KNOWINGLY AND INTELLIGENTLY AGREED TO AN UNAMBIGUOUS AND UNEQUIVOCAL CONTRACTUAL PROVISION WAIVING THEIR RIGHT TO A TRIAL BY JURY.

The well-established law of contract, in Michigan and throughout the United States, is that a party has not agreed to waive a constitutional right unless that party has voluntarily, knowingly and intelligently agreed to an unambiguous contractual provision waiving that right.

The General Law of Contracts Provides That No Party May Be Found to Have Waived a Fundamental Right Unless He Or She Voluntarily, Knowingly and Intelligently Agreed to an Unambiguous and Unequivocal Contractual Provision Waiving That Right and Finch v. Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) ("Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.")

Defendant Donald K............ states for the record: “If he was intelligently aware that First USA - Bank One Delaware or any other Bank was attempting to get him to agree to give away his constitutional right to go to court and sue them if he had a dispute he would refuse. Defendant does not do business with any company which asks him to intelligently give up his constitutional rights in order to do business with them. If Defendant would ever become aware of making such an unintelligent mistake he would dispute and revoke his agreement.

UNDER THE FEDERAL ARBITRATION ACT, A COURT MAY ONLY COMPEL ARBITRATION OR ENFORCE AN AWARD IF IT FINDS THAT THE CONSUMER AGREED TO THE ARBITRATION CLAUSE, AND IF IT FINDS THAT THERE ARE NOT VALID STATE CONTRACTUAL DEFENSES TO THE ARBITRATION AGREEMENT SUCH AS UNCONSIONALBILITY OR MATTERS OF EQUITY.

The Federal Arbitration Act provides that "an agreement in writing to submit to arbitration on an existing controversy arising out of a contract arising from interstate commerce shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2.

MCR 3.602 (J) (1) On application of a party, the court shall vacate an award if:

(a) the award was procured by corruption, fraud, or other undue means.

(B) there was evident partiality by an arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing a party’s rights;

April _______2005 __________________________

Donald K..............

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B. On September 29th, 2004, under public law pursuant to The Fair Debt Collection Practices Act [15 USC 1692g(B) Validation of debts] and [15 USC 1692c,c Communication in connection with debt collection], the Defendant faxed and mailed out a letter to Shermetta & Adams disputing the alleged debts and gave notification for them to CEASE AND DESIST in any and all attempts to collect the alleged debts and also gave notice that telephone calls will not be accepted at Defendant‘s home. (See Exhibit A pages 3 and 4)

Did you give them a FULL C&D or only a partial? If it was a full C&D how did you expect them to contact you? If it was a partial to only communicate via written coorispondance I would re word that to say that.

F. The alleged Plaintiff’s law firm continued to call the Defendant’s home several hundred times on the average of (5) times a day through the end of December 2004, ignoring FDCPA laws and did not stop calling until the Defendant issued a complaint to the Michigan Attorney General in late December.

Rather than ingnoring FDCPA, "In violation of the FDCPA 15 USC......."

I will try to get back to this in the morning and have another look, right now my eyes hurt. :shock:

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Following the FDCPA is not a condition precedent to filing a collection law suit. If the law firm did not follow the FDCPA, you go after them in a separate suit.

Have you had any discovery ( depositions, interrogatories, etc) with the plaintiffs? If not, your summary judgment motion will likely fail.

If they are suing you based on the arbitration, and that is what the complaint says, you need to attack the validity of the arbitration award. Saying you don't owe the money becasue the lawyers didn't follow the FDCPA, which is how I read your papers, is not persuasive, in my opinion.

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Thanks for your oppinon. This legal stuff is hard to understand about which way you should go to proove your pointe. You are correct about the FDCPA. It was just my way of showing that I can't begin to think about paying an alleged debt if I don't have proof that it is my debt or the correct amount. The real question will be if the judge will be satisfied that the arbitration award is sufficient debt validation. I say it isn't because the CA didn't submit it to arbitration and has no first hand knowledge about any facts of the proceedings to be able to say that the award is true and correct. Any feedback would be appreciated. I don't want to file this motion and get the judge mad at me and lose.

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