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Comment on my Motion To Strike


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hi everyone. I am filing my Motion to Strike and Motion To Dismiss on Tuesday. I really would appreciate comments from people to make sure it is right. I cut and pasted a lot of it from the boards here and put in the pertinent Michigan Rules of Evidence. I think though I am missing Michigan Complied Law as reference and not sure if I can file without it. Txs in adavance to everyone for your help.

STATE OF MICHIGAN

IN THE XXTH DISTRICT COURT

CITY OF XXXXX MI 48XXX

SHERMAN ACQUISITION LIMITED PARTNERSHIP,

Plaintiff

vs. Case No. XX-XXXXX-XXX

XXXXXXXX,

Defendant.

__________________________________/

XXXXXXXX, P.C.

Attorney for Plaintiff

XXXX BLVD

XXXX, MI 48XXX

(000) 000-0000

NAME

ADDRESS

, MI

(000)XXX-XXXX

__________________________________/

MOTION TO STRIKE AFFIDAVIT AND MOTION TO DISMISS:

Now comes Defendant, appearing pro se, and respectfully moves the court to strike the affidavit of XXXXX. Contingent upon granting Defendant’s Motion to Strike Affidavit, Defendant respectfully moves pursuant to Michigan Court Rule 2.116©(10) as well as the Federal Rules Of Civil Procedure, U.S. Code, Rule 901. Requirement of Authentication or Identification:

(a) General provision. - The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Plaintiff can prove no set of facts or evidence supporting a claim entitling Plaintiff to relief and that the case be dismissed with prejudice.

Memorandum

Defendant respectfully submits this motion to strike Plaintiff’s affidavit for the Court’s consideration. The following facts are significant to this motion.

Facts

1. As alleged in Plaintiff’s Complaint and the attached affidavit of Plaintiff’s representative, Defendant owes Plaintiff a sum certain due an alleged debt.

2. Plaintiff failed to attach a copy of the written instrument as an exhibit to the Complaint and failed to recite relevant information as required by MCR 2.113(F).

MCR 2.113(F); Burrill v Michigan, 90 Mich. App. 408, 412; 282 N.W.2d 337

3. Although Plaintiff claims to “have access to the records of this account, and that the amount of the claim is just and true to the best of my personal knowledge, and that all just and lawful offsets, payments, and credits have been allowed.” Plaintiff has not attached those records and has attached an affidavit by XXXXX in lieu of a written instrument or any records pertaining to the account.”

4. On information and belief, Plaintiff is a purchaser of distressed debts and therefore not a “Holder” under M.C.L. 600.2145

5. On information and belief, the affiant, XXXXX, was never employed by the original creditor.

6. On information and belief, the affiant, XXXXX, was never in a fiduciary or any other position to examine the original creditor’s open books for the account of the alleged debt.

7. On information and belief, the affiant, XXXXX, does not have personal knowledge of the original creditor’s creation, maintenance, issuance, and tracking of the billing or statements.

Analysis

Although Plaintiff claims to have access to “records” pertaining to Defendant’s alleged debt, Plaintiff refused to comply with Michigan Court Rule 2.113 (F) (1) which states:

(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 pleading;

(B) in the possession of the adverse party and the pleading so states;

© inaccessible to the pleader and [*11] the pleading so states, giving the reason; or

(d) of a nature that attaching the instrument would be unnecessary or impractical and the pleading so states, giving the reason. [Emphasis added.]

The attached affidavit does not suffice for a written instrument and Plaintiff’s affidavit constitutes hearsay as defined in Michigan Rules of Evidence Rule 801 and is not admissible under Michigan Rules of Evidence 802.

A 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 purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

Conclusion

Michigan’s Court Rules namely M.C.R. 2.113 (F) (1) requires a copy of a written instrument be attached to the Complaint when it is the basis of the Plaintiff’s claim. When not attached, a valid reason for its omission must be given. Burrill v Michigan, 90 Mich. App. 408, 412; 282 N.W.2d 337. Plaintiff’s claim that it has access to Defendant’s records when it does not may constitute a “misrepresentation” and as such, evidence of further violations of the Fair Debt Collection Practices Act.

Plaintiff’s Complaint alleges that Defendant is in default under the terms and conditions of an alleged written instrument, but fails to disclose the terms and conditions under which Plaintiff acquired said instrument.

Plaintiff alleges that this written instrument forms the basis for Plaintiff’s right to sue and demand judgment against Defendant.

The written instrument is the best evidence of any transactions that allegedly occurred between Defendant and Plaintiff or Defendant and another creditor. Without the written instrument, Plaintiff cannot prove what terms and conditions Defendant allegedly defaulted on. Additionally, Defendant is harmed because Defendant does not have an opportunity to raise affirmative defenses that may rise from any defects in the written instrument.

Motion To Strike and Dismiss submitted and filed this _____ day of January, 2006.

Certificate of Service

This is to certify that a true and correct copy of the above and foregoing Motion To Strike and Motion to Dismiss was mailed by first class U.S. Mail, with full and sufficient postage paid, to Attorney for the Plaintiff, Sherman Acquisition LIMITED PARTNERSHIP this ________ day of January, 2006.

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