This is all wrong .....

[Savoir]

On or about June 3rd, Plaintiff (JDB) caused a summons to be issued against me for an alleged debt they bought.

I answered the summons and asserted affirmative defenses in a timely manner. Filed a motion to strike plaintiff's affidavit of debt at the same time.

Plaintiff filed a MSD (MSJ for most of you), I went to court for the hearing and beat the MSD via the insufficient affidavit (untimely and lack of knowledge). I thought it was pretty much over because the Judge said to the palintiff that the faulty affidavit pretty much kicked the legs out of the 'account stated' cause of action. Stupid me... I should have motioned the court for dismissal at that juncture but was more than a little intimidated (being my first time in court) and didn't do so. When the Judge said I could leave ... I bolted. I thought that I could just show up at court on the day of the trial ... plaintiff wouldn't show due to no case ... and the Judge would issue a dismissal with prejudice. Wrong !!!

Plaintiff has now requested the court to postpone the trial and asked for 90 days for Discovery "in order to obtain the necessary documentation for Trial."

Come on ... if you don't have the evidence to sue someone ... why should I agree to give them 90 days to get more evidence?

Is there any thing I can do here to end this abuse or to circumvent this extension of time?

[WhoCares1000]

You could file your own motion opposing the extension but I doubt you would succeed. These motions are routinely granted. Besides, sometimes the best thing you could do is give the other side enough rope to hand themselves with.

Look at it this way, now is the time to figure out how to do your own discovery. You could always ask for an extension yourself too if the get the paperwork to have time to review it and come up with a settlement.

[Guest usctrojanalum]

I mean what are they going to find in 90 days that they are not going to have now? nothing. You could oppose the extension but if this is a first request like whocares said it will probably be futile.

[Savoir]

How about a motion to dismiss?

They sued me ..... they should have enough evidence to prove their case ... they didn't. Judgment denied!

Would a MTD be untimely at this point?

I just don't want to trip up during discovery.

[Savoir]

Received a form from the court today titled “Amended Civil Pre-Trial Order” which looks like it was filled out by the Judge in my case.

Basically it says that Pleadings, Motions, amendments to pleadings, counter-claims and cross-claims shall be filed by a certain date. (hand written)

Discovery shall be completed by ______NONE­­­­­­­­­­­____(hand written) . Depositions are/not (not circled as are other choices on this form) permitted without stipulation or by leave of the court.

Witness lists shall be filed and exhibits exchanged within (3) three weeks after Pretrial.

ALTERNATIVE DISPUTE RESOLUTION

This case is / NOT referred to Conflict Resolution Services. (not is circled)

This case is / NOT referred to Facilitative Mediation

This case is / NOT referred to case evaluation.

This case is /NOT scheduled for a settlement conference

This case IS / not scheduled for a 2 hour non-jury trial. Trial briefs shall be submitted to the court three days prior to the trial date. (IS is circled)

If I’m reading this right, it says that Discovery is not going to be permitted; is that a fair assumption? Is it possible that I WILL be deposed?

It also mentions a Pretrial … as far as I’m aware there has been no pre-trial scheduled. What’s up with that? All the court clerk sent to me was an Order To Appear for the 2 hour tial date.

For all the reading I’ve done on this site I don’t think that I have ever come across mention of a Trial brief. What is that?

At the bottom it says that any objection to this Pre-Trial Order, or request for pre-trial conference, shall be filed within fourteen days of the date of this order.

Do I have any grounds for an objection ??

Thanks for all the help even getting me this far in this battle .... it's really appreciated more than I can say.

Edited September 25, 2010 by Savoir
added a question ....

[Savoir]

Did I do something inappropriate? ..... or are you all just too busy?

I know your time is valuable and you all share it very generousily and I appreciate it but, I'm in up to my neck in 'I don't know what to do' !!!

Edited September 27, 2010 by Savoir

[BV80]

Savoir, I'd help you if I could, but this is a new one to me. All I can say is, either they're just trying to postpone their own loss and freak you out, or they have something up their sleeves, although I don't know what it could be.

Keep doing your research, but you may just have to wait this one out.

[Mimi-to-8]

Replies to posts drop off significantly during the weekends. Give this a few days for the pros to see it and reply. Bump your post to the top Monday to help.

[Savoir]

I sure could use some help here .... I've never seen anything like it either.

Will do as you suggest Mimi-to-8 and I'm hoping for what BV80 is suggesting. I read in a post here that a plaintiff called up someone on the phone at trial and offered him up as a credible witness to the OC's book keeping. I hope that this JDB isn't trying to pull the same stunt... buying time to buy someone off to pull such a stunt.

The Judge only give them 45 days ..... so that's a plus.

See you Monday !!

[RebelLady]

This is all I can find about A Trial Brief so far...

A Trial Brief covers all issues to be decided and apparently your Trial Brief has to be submitted at least three days prior to court date.

I think I would call the clerk of the court and ask for clarification especially about Discovery and Depositions. You might also ask if there's some kind of Trial Brief form you can use or should you just type your's up.

RL

[Savoir]

Where did you find that information? I looked but didn't come up with a thing !!

[RebelLady]

I Googled the Michigan Judicial System and did a search for "Trial Brief". The first one that came up was the only one that actually put the two words together so I clicked on it. It was a form for a Domestic Relations matter but down at the very bottom of the first page it says that Trial Briefs are to be submitted (in this type of case at least) 7 days prior to trial. It explains briefly what the Trial Brief is and what it should contain in this type of case and is the only reference that even came close to giving an explanation.

RL

[skippy1960]

Received a form from the court today titled “Amended Civil Pre-Trial Order” which looks like it was filled out by the Judge in my case.

Basically it says that Pleadings, Motions, amendments to pleadings, counter-claims and cross-claims shall be filed by a certain date. (hand written)

Discovery shall be completed by ______NONE***********____(hand written) . Depositions are/not (not circled as are other choices on this form) permitted without stipulation or by leave of the court.

Witness lists shall be filed and exhibits exchanged within (3) three weeks after Pretrial.

ALTERNATIVE DISPUTE RESOLUTION

This case is / NOT referred to Conflict Resolution Services. (not is circled)

This case is / NOT referred to Facilitative Mediation

This case is / NOT referred to case evaluation.

This case is /NOT scheduled for a settlement conference

This case IS / not scheduled for a 2 hour non-jury trial. Trial briefs shall be submitted to the court three days prior to the trial date. (IS is circled)

If I’m reading this right, it says that Discovery is not going to be permitted; is that a fair assumption? Is it possible that I WILL be deposed?

It also mentions a Pretrial … as far as I’m aware there has been no pre-trial scheduled. What’s up with that? All the court clerk sent to me was an Order To Appear for the 2 hour tial date.

For all the reading I’ve done on this site I don’t think that I have ever come across mention of a Trial brief. What is that?

At the bottom it says that any objection to this Pre-Trial Order, or request for pre-trial conference, shall be filed within fourteen days of the date of this order.

Do I have any grounds for an objection ??

Thanks for all the help even getting me this far in this battle .... it's really appreciated more than I can say.

The hearing you had was motion hearing and you won. Meaning they didn't get MSJ or MSD, meaning their is a question of "material fact in the case" the avidavit. So now the court has given the other side leave or time to fix this portion of their case and present it at trial.

The note you received lets both sides know the expectations of the court for the trail date.

1. Date certain for any final pleadings, motions, counter claims etc.

2. Discovery -NONE- means no more what is in the record from MSD is what the trial should be based upon. They shouldn't be able to send you another set of interog's and expect and answer and vice versa.

3. No Depositions unless you get court approval prior to trial date.

4. ADR- You guys are done with all the other possible stuff and going to trail on date certain and need to have a trail brief filed 3 days prior.

As I read all of this it seems to be a tool to focus what the court expects to be dealing with and is good for you as you won't waste time in doing something that is not neccessary.

I am not sure what a Trial Brief should look like in your area, so hopefully someone else from your state will jump in.

I would oppose the 90 day request for discovery by plaintiff, this is so they can fix the affiant issue they have. Which means they will send you INTERROGS to get you to admit to the debt is some way. Judge said discovery is closed, oppose motion to reopen discovery and agree with court. You probably have a limited time to do this so check quick.

Also I would be on the look out for an amended pleading with a new affiant for trial, as they know the one they have isn't going to work by that date certain in the Pre-Trial Notice.

Hope some of this helps, not sure how accurate it is not from MI, so some is just common sense and logical thinking.....

[maggie22]

Trial briefs are common in most michigan civil cases. I don't believe there is a form, however, it should follow a basic format suggesting your proposed findings of fact and conclusions of law that you'd want the Judge to follow in making a decision. Kinda akin to a response to motion for summary...Should be similiar...For collections cases I can guess it would likely be set up such as: there is No proof that, Plaintiff failed to establish that, Plaintiff is required to prove......etc. You can start with Facts, outlining the procedures to this point etc...and somewhere in it toward the end throw in Conclusions of law citing MI case law...

Here's a rough sample thrown together last minute on an old case:

TRIAL BRIEF

STATEMENT OF FACTS

This action arises out of a claim for unpaid wages. Plaintiff worked for Defendant as an Independent contractor and was paid a commission rate of 22% of the work he Performed.

During the period of August, 1999 through November 13, 1999, Plaintiff Worked on a contract with XXX USA.

This contract with XXX USA generated revenues to XXX USA of $16,864.00 for the Period of November 1, 1999 through November 13, 1999. For this work Defendant received $6,576.96. The Defendant had agreed per the Contract to pay Defendant 22% of the gross sales for work he performed which totals $3,710.08 (See Proposed Exhibit A attached).

Defendant has refused to pay Plaintiff for the work that he performed in violation of the terms of the Contract. Defendant has admitted that Plaintiff performed work during the period of November 1, 1999 through November 13, 1999 and that he has never paid Plaintiff for the work performed. (See Proposed Exhibit B attached)

ISSUES

At issue is the total amount of unpaid monies owed to Plaintiff. Defendant has asserted that the correct amount of money potentially due to Plaintiff totals: $1,556.28, though he has paid Plaintiff Zero. Also at issue is Defendants counterclaim for workers compensation Reimbursement on a policy allegedly taken out on Plaintiff, alleged vehicle damage and lost revenue.

CASE THEORY

Plaintiff performed work for the period of November 1, 1999 through November 13, 1999. Defendant has refused to pay Plaintiff for any of the work performed. Defendant has attempted to avoid his obligation under the terms of the agreement by submission of fraudulent repair invoices, a claim for an unpaid workers compensation policy which was never agreed to, and a claim of lost revenues which is moot given the nature of this At-Will employment arrangement.

MEMORANDUM OF LAW

Defendant has acknowledged the existence of a valid enforceable express contact whereby the Plaintiff was to receive compensation for work he performed at a rate of 22% of the sales volume. Defendant has admitted that the work was performed and that he has not paid. It is undisputed that Defendant has breached his obligation under the terms of the agreement.

Defendant has claimed that Plaintiff never paid him reimbursement for a Workers Compensation policy. In general, the Michigan Workers Disability Act requires employers to maintain coverage for work related injuries for their employees if certain conditions exist.

Defendant's Mediation summary clearly asserts that "Plaintiff was never an Employee" (See

Proposed Exhibit C attached).

Defendant has submitted 2 invoices for alleged repairs. The evidence and the testimony will show that these invoices are fraudulent. Obviously this matter bears on credibility.

Respectfully Submitted,

[admin]

You could file your objection, but I don't think you'll get anywhere. This is pretty common. The Good news: I doubt if they will be able to come up with a thing in 90 days.

[BV80]

Will do as you suggest Mimi-to-8 and I'm hoping for what BV80 is suggesting. I read in a post here that a plaintiff called up someone on the phone at trial and offered him up as a credible witness to the OC's book keeping. I hope that this JDB isn't trying to pull the same stunt... buying time to buy someone off to pull such a stunt.

I suppose it wouldn't be impossible for a JDB to obtain a testimony or affidavit from an OC, but I believe it would be highly improbable. They would also have to prove the witness was employed by the OC during the time your account existed, and that the witness's job description included handling personal accounts.

Edited September 27, 2010 by BV80

[FL4answer58]

I suppose it wouldn't be impossible for a JDB to obtain a testimony or affidavit from an OC, but I believe it would be highly improbable. They would also have to prove the witness was employed by the OC during the time your account existed, and that the witness's job description included handling personal accounts.

They still file 'Affidavit of Debt' and 'Affidavit of Claim' signed by JDB officers all the time. That doesn't mean you can't motion to strike them.

[BV80]

They still file 'Affidavit of Debt' and 'Affidavit of Claim' signed by JDB officers all the time. That doesn't mean you can't motion to strike them.

I understand that. Savoir was talking about the possibility of a JDB obtaining an affidavit or testimony from an employee of the OC. That's what I said would be unusual.

[nobk4me]

I understand that. Savoir was talking about the possibility of a JDB obtaining an affidavit or testimony from an employee of the OC. That's what I said would be unusual.

It happened in my JDB case, where they filed an affidavit supposedly from the OC.

http://debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1077304&postcount=17

[Savoir]

I read a post where the JDB had someone testify via telephone in a trial...

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1071555&postcount=1

...and now you're telling me that it might be possible for the JDB to get an affidavit from the OC ???

Here's a question about that.

If the JDB has NOT proven that they actually own the debt why would the OC's affidavit or testimony even be pertinent?

I'm fighting this from two different angles ......

1. JDB's affiant has no personal knowledge ..... and .... as luck would have it .... was dated untimely. MSJ denied on this point alone.

2. Plaintiff's Bill of Sale does not (IMO) prove that they own the debt.

a) OC's Bill of Sale to 1st JDB refers to an attached "Credit Card Account Purchase Agreement" which supposedly defines the terms and conditions of the sale. This attachment is not on record.

b)Bill of Sale from the 1st JDB to the 2nd JDB is not even signed by the 2nd JDB at all.

c) Both Bills of Sale refer to an Exhibit # which, is the usual redacted spreadsheet document used to indicate that they purchased an alleged account ..... problem is that the document itself is NOT labeled as an Exhibit.

So ...... if the plaintiff hasn't really proven that THEY own the debt ..... why would the OC's affiant's testimony matter at all?

Here's another point ..... up until now, Discovery has NOT been initiated by either party to this case ( confusing language in the civil procedure rules prevented me from initiating) and it looks to me like the judge has prohibited further discovery .... would any new evidence be allowed at this juncture? In other words .... even if the JDB could buy an affidavit from the alleged OC ...... could it be admitted?

Again, I can't begin to describe how helpful this forum, and its members have been to me ..... if it weren't for your kindness and concern I'd be one of the many clueless debtors that accept a default judgment.

[BV80]

2. Plaintiff's Bill of Sale does not (IMO) prove that they own the debt.

a) OC's Bill of Sale to 1st JDB refers to an attached "Credit Card Account Purchase Agreement" which supposedly defines the terms and conditions of the sale. This attachment is not on record.

Of course it doesn't prove they own the debt. It only proves they purchased a portfolio from the OC. It does not prove your account was part of that portfolio.

A JDB who sued my hubby tried to provide that "proof" with a sheet of paper with my hubby's name, account number, and the OC's name with the portfolio number. Something I could have reproduced in about 10 seconds on my computer.

So ...... if the plaintiff hasn't really proven that THEY own the debt ..... why would the OC's affiant's testimony matter at all?

The only way I could think that it would matter would be that the JDB could make the case that they wouldn't be able to get the affidavit from the OC if they (the JDB) had not purchased the debt.

As I said before, it's not impossible, just improbable. JDBs don't want to have to work for the money. Granted, the larger the debt, the more incentive they have to work hard, but even then, they don't want to. They want the easy default or summary judgments. Having to obtain an affidavit from an OC is work, especially if more than a few defendants are challenging the JDB.

[BV80]

nobk4me

It happened in my JDB case, where they filed an affidavit supposedly from the OC.

I can imagine that must have been scary and confusing. Would it have been possible to subpoena the affiant? If it was a forgery, that might have sent the JDB running.

[skippy1960]

Take a step back and look at it from the other sides view. They showed up with all the information that they win MSD day in and day out 95% of the time. 5% of the time or less someone like you shows up with just enough information and gumption to force the case to trial, based on a "material fact being in question" and needing a trier of fact to determine.

From a strategy standpoint you need to assume they are not coming back to court for trial with the shotty work from the motion hearing, they will fix the techincalities of their case, "no Exhibit listing", affidavit date, missing signatures etc.

So I would oppose the request to open up discovery, because you have exposed the weakness in the evidence they have, so they need new evidence and you are the source they are looking to get it from.

Therefore if I am them I would serve you with some interrogitories and get you to answer some questions, then when I am at trial you would be my star witness and I would use those answers to interrogs to find away via questions for you to admit to the debt. Then I win.

[Massive]

Take a step back and look at it from the other sides view. They showed up with all the information that they win MSD day in and day out 95% of the time. 5% of the time or less someone like you shows up with just enough information and gumption to force the case to trial, based on a "material fact being in question" and needing a trier of fact to determine.

From a strategy standpoint you need to assume they are not coming back to court for trial with the shotty work from the motion hearing, they will fix the techincalities of their case, "no Exhibit listing", affidavit date, missing signatures etc.

So I would oppose the request to open up discovery, because you have exposed the weakness in the evidence they have, so they need new evidence and you are the source they are looking to get it from.

Therefore if I am them I would serve you with some interrogitories and get you to answer some questions, then when I am at trial you would be my star witness and I would use those answers to interrogs to find away via questions for you to admit to the debt. Then I win.

If you don't have admissible evidence that you own the debt, then I have no memory of any alleged account. Until I have evidence that you own the debt, then you aren't going to get anything out of me. I'm not going to be your star witness if you don't even have authenticated evidence of ownership. Why are you even suing me without proper evidence of owning the alleged account? How many thousands of default judgments are out there that lack authenticated evidence that the junk debt buyer actually owns the debt? Way too many.

[Savoir]

Discovery shall be completed by ______NONE­­­­­­­­­­­____(hand written) . Depositions are/not (not circled as are other choices on this form) permitted without stipulation or by leave of the court.

Witness lists shall be filed and exhibits exchanged within (3) three weeks after Pretrial.

If I’m reading this right, it says that Discovery is not going to be permitted; is that a fair assumption? Is it possible that I WILL be deposed?

I think this says that the plaintiff's motion to initiate discovery has been denied but, depositions may or may not be allowed.