Summary Disposition

[Savoir]

What did I do wrong?

Case brief can be found here:

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1069839&postcount=7

The whole thread can be viewed here

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?p=1069839#post1069839

I filed my answers to an ‘account stated’ complaint along with a motion to strike a supporting affidavit as hearsay. I also submitted a sworn denial statement.

Trial date was set.

Today I looked at the court case online and see that the plaintiff has telephoned in a request for a hearing for summary disposition.

He/She has not filed the papers yet so I haven’t even seen them. As soon as they are filed though, I will get a copy.

Looking at the Michigan Court Rules 2.116 © I can only find two possible grounds for this motion.

• (9) The opposing party (that’d be me) has failed to state a valid defense to the claim asserted against him or her.
  
• (10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.
  

Subrule (F) sort of scares me too …… it states

“Motion or Affidavit Filed in Bad Faith. A party or an attorney found by the court to have filed a motion or an affidavit in violation of the provisions of MCR 2.114 may, in addition to the imposition of other penalties prescribed by that rule, be found guilty of contempt.”

So … what do I expect at a Summary Disposition hearing?

I read in the MCR’s that the judge can try the case right then and there if there is supporting evidence for either side.

[chuckygee]

You have done nothing wrong. This is their standard operating procedure. They file for a Summary Disposition or a Summary Judgement and hope to avoid a trial. For their motion to succeed, they must prove there are no "no genuine issue as to any material facts", to defeat the SD of SJ, you must prove, "no genuine issue as to any material facts".

You affidavit is a good start. When you get the motion, just start to challenge it line by line.

[skippy1960]

Nothing wrong at this point, but check the timelines for filing and delivery and then how long you have to respond. SJ/SD is generally alot of paper that you will recieve.

Easy rule of thumb is whatever the title of their document your is title similarly. Example Plaintiffs Motion for SD/SJ, your Defendants Opposition to Motion fot SD/SJ.

Chuck mis-typed but you need to create a "triable/material issue of fact", that the court needs to hear and cannot be overcome on pleadings.

Read the motion line by line several times over, then determine how best to respond to that particular paragraph or point.

I won't sugar coat it these are difficult for pro se, but they generally leave some openings. Don't get hung up the law citations, use common sense and get as much done with it first, then you can resarch some of the law citations.

[Savoir]

As you may be able to tell, this is my first go round at this and the Michigan Rules of Civil Procedure are very hard to interpret (for me at least).

So ... this is just basically a lather/rinse/repeat of the original complaint .... just a little more specific?? Is that a fair assumption?

Timelines .... I can follow .... I hate being late for anything.

Playing by somebody else's rules can be problematic especially if you aren't familiar with the rules.

I will post back once I get the documents .... if I have any problems with them.

Again .... sincere thanks !

[skippy1960]

Something you may want to look at is arbitration, you stated you defaulted on the account in 2007, meaning last payment. Correct?

If that is the case your contract/agreement was frozen at time of default.

Arbitration clauses have terminology that waives the rights of both parties to litigation in court and forces it to a private forum. Why this is good today is the Credit Card company pays all the cost associated with the arbitration, except a small filing fee. Depending on the agreement and arbitration forum rules you could cost them alot of money to collect the debt.

Think about it, they are out of their home (court) and in a venue not comfortable, if you take them all the way hearing and all, lawyers fees at 300 to 500 dollars an hour add up quickly.

You should do some research while waiting for the papers and see if it maybe right for you. I have seen post from Michigan that prior to SJ hearing, defendant elects arbitration and case stayed until completion of arbitration.

You want to see a DC lawyer squeal like a girl, take away SJ and tell he has to pay $3000 dollars in a private forum where his civil procedure BS won't help him....

[Savoir]

Something you may want to look at is arbitration, you stated you defaulted on the account in 2007, meaning last payment. Correct?

Yes .. that's true ...

I've read up (somewhat) on arbitration and as of yet I'm just not sure that the results from a judgement would be any worse than a loss in arbitration.

What are the benefits to arbitration versus trial for me rather than just costing the plaintiff money?

[nobk4me]

Yes .. that's true ...

I've read up (somewhat) on arbitration and as of yet I'm just not sure that the results from a judgement would be any worse than a loss in arbitration.

What are the benefits to arbitration versus trial for me rather than just costing the plaintiff money?

If you are in a hostile court, arb get you out of it. And causes delay, lots of it. For the debt collectors, time is money.

[Savoir]

If you are in a hostile court, arb get you out of it. And causes delay, lots of it. For the debt collectors, time is money.

I've never been to court so I don't know that I'd recognize a hostile one .... I think they're all pretty hostile on the face of it ... but that's another issue.

I've read that you have to mention arbitration in your affirmative defenses in order to be successful in firing the 'magic bullet' at the last minute if you find yourself sinking.

Any substance to that?

[chuckygee]

Sorry for the confusion, I was quoting the Ohio rule. (EDIT - I see where I just retyped the same thing for the opposition. Should have said "...you must prove, there are "genuine issue as to any material facts".

Just go line by line and find a way to refute or contest what they are saying in their filing. If you have nothing to refute their "evidence", by law the judge will rule in their favor. Your affidavit is evidence to refute any affidavit they may present. Also look for any holes in their initial pleading or evidence presented and explain why preferably citing Michigan law and/or jurisdictional precedence why the case should go to trial and their need to prove their claim.

Edited August 12, 2010 by chuckygee

[skippy1960]

What are the benefits to arbitration versus trial for me rather than just costing the plaintiff money?

Consider this. The folks suing you have a couple of hundred cases they are doing each month, 90% of the time no answer and they get default judgement. 10% attempt the battle, generally without legal representation because attorney cost more than what is owed.

So we spend hours learning civil procedure, searching case citations, writing motions and pleadings, because we think that the lawyer for the other side and court are going to act by the letter of the law. Simple fact is they don't!

When you review the cost factor, plaintiff is paying to file the suit, pay for service of summons. If you are doing a couple hunderd of these a month for the same OC, they enter information into a computer program and out comes motion for summary judgement, para-legal does a quick review. They are done and on there way to collecting. They have invested $500 bucks in cost. Legal fees added to your debt around $1200.

Arbitration on the other hand same basic principals of law, reviewed by a private forum going all the way to a hearing, could run them $10K dollars. And oh by the way the trier of fact is not Good Ole Judge XXXXXX, it is someone who has to protect the private formum they are working for, so the rulings have to be correct. Anyone raving about using NAF any longer I am sure their workload has slowed down. So the other 2 National forums are untra sensitive to make sure the consumer gets a fair shake.

[Savoir]

When you review the cost factor, plaintiff is paying to file the suit, pay for service of summons. If you are doing a couple hunderd of these a month for the same OC, they enter information into a computer program and out comes motion for summary judgement, para-legal does a quick review. They are done and on there way to collecting. They have invested $500 bucks in cost. Legal fees added to your debt around $1200.

This may not be the situation in this case. The JDB is an LLC set up by the law firm to act as the Plaintiff. I am as sure of this as I am of my name but, can't find any law against it. I agree that they'll add the costs (or more) but I think their overhead is a bit lower than what you suggest.

Arbitration on the other hand same basic principals of law, reviewed by a private forum going all the way to a hearing, could run them $10K dollars. And oh by the way the trier of fact is not Good Ole Judge XXXXXX, it is someone who has to protect the private formum they are working for, so the rulings have to be correct. Anyone raving about using NAF any longer I am sure their workload has slowed down. So the other 2 National forums are untra sensitive to make sure the consumer gets a fair shake.

I asked this question in a different thread but haven't been back to that thread yet to see if anyone posted a response.

Should one have had a reference to the possibility of Arbitration in your Affirmative Defenses in order to fire this "magic bullet" ?

Edit: just read through the entirety of this thread and realized that this was the thread I posted this question to ... No one has answered it yet.

Thanks for taking the time to respond.

Edited August 12, 2010 by Savoir

[chuckygee]

For the sake of the rules of the board, I would caution against referring to arbitration as a "magic bullet".

I think you are fine in Michigan compelling arbitration even if it was not listed as an affirmative defense. You will have a great reason to file for it late if the plaintiff has not yet filed the customer agreement.

[Savoir]

For the sake of the rules of the board, I would caution against referring to arbitration as a "magic bullet".

I really apologize for my gaff .... didn't realize it was against the rules or a protocol violation.

Again .... I apologize for my ignorance. I'm going to review the rules of the board again so I don't make a similar error in the future.