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Is anyone familiar with Michigan Civil Law? I am being sued by discover card. Despite trying to settle on numerous occasions, they have bulldozed past and filed suit against me. After a few weeks of research (from the many amazing and informative posts here) I filed an answer to the complaint and a motion to dismiss. I just received in the mail a notice of a court date? I'm very confused as I thought the next step was the lawyers (opposing) were required to answer my motion to dismiss? I'm nervous that they will ask for a summary judgement and I won't be able to fight this any further? Does anyone have suggestions or information for me? Thank you very much

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Probably your pre-trial date, I'm only a few weeks ahead of you in the same process, Once I filed the response the pre-trial date was set by the court.

During the month prior to the pre-trial I asked the plaintiff for discovery which they declined and then I submitted a motion for discovery to the court, cost me 20.00 but when the pre trial came up it was the first thing on the docket and the judge approved discovery and set a trial date 4 months out.

I had a 3 inch thick binder full and was expecting the worst but I never had to use a thing (yet)

The way I look at it is I have 4 months to learn and it has taken the edge off although I am spending several hours a day reading and researching.

I don't take a single thing for granted and expect this to be my new hobby for the forseeable future.

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i hope both of you Michigans can tag team on your respective cases and prevail. im not from michigan so i cant be much specific help.

nala, i would first determine what the court date is for? is it pretrial? is it a hearing on the motion?

and as dave stated, discovery may be a good option for you. at the very least use discovery to determine what documents they have on hand right now, and what documents they expect to present at trial.

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Thank you Antique Dave and Jackson 212. I'm a little confused, as this is my first credit card I've been through this on. Thus far I have answered the complaint on account, filed a motion to dismiss, sworn denial, verification, and certificate of service. I have not heard back on the motion to dismiss from the opposing attorney.

Did you recieve an answer to your motion before you asked for discovery? Did you have to file a motion to compel? Motion to deem admissions admitted?

Is Discovery different than my motion to dismiss?

"motion for discovery to the court"

Would you be willing to share any other advice?

Nervous here in Michigan,

Thank you in advance.

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The only motion I submitted was the motion for discovery, I just wanted to get through the initial pre trial in order to get more time to learn what to do, I really felt rushed to absorb everything, 21 days to answer and about 28 more before pretrial just didn't feel like enough time

I requested discovery first from the plaintiff and they denied, it was in my initial pleadings but I don't think it meant anything, not really until they turned me down so I had an opening to submit my motion to the court.

That motion was heard first at pretrial and the judge set a trial date and approved discovery. I had no idea what I was in for at the pre trial

For myself I think its important to include any and all of the counter claims that you can, especially on these small amounts, you can lose the war and still win, if you have 1000 or 1500 worth of counter claims and you're being sued for 1000 it doesn't seem worthwhile for them.

Anyways discovery goes both ways, they can ask you for information and you can ask them, gives each side a chance to see what the other has before the trial.

I don't get their thinking, I meet the means test for chapter 7, I have a primary IRS lein and no income that can be garnished, can't imagine what they think they will get.

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I feel very much the same way as far as being rushed. 21 days to respond and about 1 month to what I am assuming is the pre-trial.

I have concerns that the opposing Lawyers will ask for a summery judgement. (Despite me filing for a motion to dismiss and not getting a response as of yet) do you have any advice for asking that not be granted?

Are you in Michigan or the surrounding areas?

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There is a lot of room for differences in how each court does things within the rules but overall they do have rules that must be followed. I was told early on to become familiar with the rules, I printed them out and put them in a 3 ring binder and went through and eventually learned and started searching google scholar legal cases by using each rule number.

It takes about a week to incorporate new habits, skills, knowledge etc each person has their own learnng style, and there are a lot of new things in this process. And it is a process that you have to understand if you are going to go any further.

Each time I read through the rules something else clicked, same thing with reading different cases. At first it was overwhelming and alien but it makes more and more sense as you go. That is what you want, to be familiar with the rules and understand how they play off from each other.

So they file a 12b motion, look up cases that reference that type of motion for summary judgment and look at what the requirements for them to succeed and then figure out what you have to do to stop them. Your response depends on your case so there are going to be differences between cases. When they file MSJ they are saying there are no facts in dispute, so your job is to identify areas that are not resolved. When you do that they don't get the MSJ you pass go and move towards trial, another pretrial, a settlement conference, but you get to live to learn and fight another day.

Once a person admits they own the debt or are responsible they lose, so deny deny deny make them prove everything, challenge everything, attack everything, even basic assumptions. you cannot assume anything about the opposition, their evidence, or the case because the second that you do you give up ground. Question everything, deny everything. well everything important.

Yes that is my address on the statement, I don't recall ever seeing anything like that before, if I might ask, where did this document come from? was it legally obtained? by what process? by what authorized person? how did the plaintiff receive it? What was the process of mailing, how do you know it was mailed to me? or that it was received? I understand the process of mailing an envelope, how do you know the original statement was in the envelope? I understand that the original statement was mailed 2 years ago, when was this document printed? Electronic documents can be altered without detection, how do I know that this document was not altered in some way such as the way that mortgage documents were altered in the latest debacle? (BTW) my understanding is that documents and such from official sources like a senate hearing may be admissible to support your position.

Because of the differences in State rules and local practice your mileage may vary YMMV

what works for me may not work for you at all. I also believe in trying to figure out how to counter move the counter moves. If you were playing chess how many moves ahead do you plan? I try to see the end of the game from the first move.

I went in to the pre trial with 3 notarized affidavits addressing 3 different areas that I thought I might have to deal with, I had several motions written out and signed and ready to submit with sheets of printed out case law and notes by category that I could turn to for review while I talked if need be.

I had my copy of the rules, I thought about but did not bring my laptop and the data card so I could hit the internet if need be. I didn't know what to expect so I prepared for as many scenarios as I could. but thats me, you will do things your way and the way that makes you feel comfortable.

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I have not heard back on the motion to dismiss from the opposing attorney.

Forgive me if these are stupid questions, but we can't assume anything since it's your first time through all this.

1. Did you properly format the motion? I.E. Was it a separate document or titled as a motion within the answer? Was there a separate legal brief in support? The plaintiff may not even be required to reply to a motion if it wasn't formatted properly.

2. Did you file the motion with the court and pay the motion fee? If you are indigent you can file an affidavit declaring as such and motion to waive/stay filing fees for the action. There is an actual court form for this. (the name escapes me but if you need it I could look it up). If you didn't pay the motion filing fee the court generally won't do anything with the motion. Generally if you file in person the clerk will demand the motion fee?

3. Did You Serve the Motion to the Plaintiff? If you didn't mail or otherwise serve them a copy of the motion they'll "pretend" they know nothing about it. Even though they likely have easy access to the court filings.

4. Did you schedule a motion hearing? You probably need to call the judge's secretary and schedule a motion hearing. Otherwise the court takes your motion fee, files the motion and basically just sits on it. At least that was what I found to be the case.

In addition if you read the rules regarding motion practice they outline the timeline for when the Plaintiff has to file a response to your motion. These deadlines are generally so many days before the hearing:

MCR 2.119©(2) Unless a different period is set by these rules or by the court for good cause, any response to a motion (including a brief or affidavits) required or permitted by these rules must be served as follows:

(a) at least 5 days before the hearing, if served by mail, or

(B) at least 3 days before the hearing, if served by delivery under MCR 2.107©(1) or (2).

(3) If the court sets a different time for serving a motion or response its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.

(4) Unless the court sets a different time, a motion must be filed at least 7 days before the hearing, and any response to a motion required or permitted by these rules must be filed at least 3 days before the hearing.

As you can see even if you properly filed and paid for the motion but haven't scheduled a motion hearing yet they technically don't need to worry about responding to your motion.

Since per the court rules you have to mail them a notice of the motion hearing no less than 9 days before the hearing (7 if you personally serve it) they still have time to write up a response to your motion. Assuming you wait until the last day and mail the notice of hearing that gives them 9 days notice and they have 4 days to get a response written up at that point. (They need to mail their response at least 5 days before the scheduled hearing and file it at least three days before the hearing).

Sorry if you knew all this, but that would certainly explain why they haven't responded to your motion. Also the court is unlikely to do much regarding the motion on their own initiative if you didn't set a motion hearing. The court MAY address it further at the court date you have scheduled (which sounds like a pre-trial conference).

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Thank you so very much everyone. I did clearly mark the paper as Motion to dismiss and when I had inquired about this with the court clerk and asked if it needed to be on a special form, they said it did not.

Single Dad, or anyone, I read this and am confused "Was there a separate legal brief in support" what does this mean?

I did sent it to them with a signature required and a certificate of service

I received a reply today, It's 3 sentences as follows

1- Plaintiff denies paragraphs 1-14 of defendants motion to dismiss as untrue

2- Defendenats motion appears to be copied off the internet

(which is not true, though I did get 99% from a book. Though every single thing is applicable to my situation

and the most concerning is the part which says:

Defendants motion fails to comport with Michigan's court rules as they apply to motions and pleadings and can be denied on this basis alone?

Have I failed somewhere? As far as I understand Michigan court rules allow you to submit a motion to dismiss at any time?

Any help anyone can offer if greatly appreciated and thank you all in advance for your reponses

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I'm still learning, I would expect always that the palintiff would deny everything, I would be surprised if they did not and also be very suspicious.

once you admit you lose, it goes both ways, It cost me 20.00 to file a motion, the charge is for all motions filed at the same time. Afterwards the court set the date and sent the notice but I also had to send a copy of everything to the plaintiff which I do by certified mail CMRR

The slam on your motion has to do with accusing you of not doing your own work or having someone do it for you, some members have been accused of ghost writing, and that is having another person or lawyer do your legal work without taking credit for it which is not legal.

We talk about law here but we don't practice it, talking about sex doesn't make you a prostitute any more than talking about law makes you a lawyer but if they want to raise cobb with you the accussation is another way to get under your skin.

You can't expect the court to watch out for you, you have to be proactive, they won't give you legal advice, if you ask them what you did wrong they probably won't tell you anything, If you ask them when the hearing date is for your motion to dismiss then they can give you the date or tell you one is not scheduled or something else. Its how you ask the question, and can be really frustrating.

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Thank you so very much everyone. I did clearly mark the paper as Motion to dismiss and when I had inquired about this with the court clerk and asked if it needed to be on a special form, they said it did not.

Single Dad, or anyone, I read this and am confused "Was there a separate legal brief in support" what does this mean?

I did sent it to them with a signature required and a certificate of service

I received a reply today, It's 3 sentences as follows

1- Plaintiff denies paragraphs 1-14 of defendants motion to dismiss as untrue

2- Defendenats motion appears to be copied off the internet

(which is not true, though I did get 99% from a book. Though every single thing is applicable to my situation

and the most concerning is the part which says:

Defendants motion fails to comport with Michigan's court rules as they apply to motions and pleadings and can be denied on this basis alone?

Have I failed somewhere? As far as I understand Michigan court rules allow you to submit a motion to dismiss at any time?

Any help anyone can offer if greatly appreciated and thank you all in advance for your reponses

You should probably read the rules of civil procedure regarding motion practice. You can find them HERE.

Scoll down to MCR 2.119 ("Rule 2.119: Motion Practice") or simply use the PDF search function to find the rule.

You'll notice :

MCR2.119(A)(1)

An application to the court for an order in a pending action must be by motion. Unless made during a hearing or trial, a motion must

(a) be in writing,

(B) state with particularity the grounds and authority on which it is based,

© state the relief or order sought, and

(d) be signed by the party or attorney as provided in MCR 2.114.

and also:

MCR2.119(A)(2): A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based. Except as permitted by the court, the combined length of any motion and brief, or of a response and brief, may not exceed 20 pages double spaced, exclusive of attachments and exhibits. Quotations and footnotes may be single-spaced. At least one-inch margins must be used, and printing shall not be smaller than 12-point type. A copy of a motion or response (including brief) filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked judge's copy on the cover sheet; that notation may be handwritten.

One of the biggest issues with writing their own motions is people cut and paste from the web or copy from a book. While this is fantastic for a general idea of what your motion can say and how it should be formatted, it's just a general idea. You need to tailor it to your specific case. Your specific rules of civil procedure are going to spell out EXACTLY what your motion needs to look like and how it needs to be formatted. I supsect the plaintiff will argue your motion either failed to cite court rules or, more likely, failed to include a brief to support.

What is a legal brief in support? Your brief is where you support what your are asking in your motion with specific court rules and case law. Think of them as two separate documents..although they are usually submitted together as a single document titled "Defendant's Motion to Dismiss and Brief in Support" etc.

Think of your motion as a summary of what you are asking the court to do. The brief is then your arguments on paper that support what you are asking the court. For instance, in this case your motion to dismiss. In your brief in support you'd outline the specific court rule(s) that says you can ask for a motion to dismiss and you'd also explain on what grounds the case should be dismissed. If the plaintiff has failed to follow proper procedure etc. you also point out what specific rules they've violated etc. if it applies to why you are asking for a dismissal. You'd then support those arguments with specific cases from MI courts, or even federal cases, etc that show cases have been dismissed for this in the past.

The short simplified explanation is your motion is where you ask the court for what you want and the accompanying brief proves to the court (and the plaintiff) that you know you are entitled to it. You can't expect the court to know, be aware, or even CARE. You need to spell out the specific court rules etc. then all the court has to do is look up the court rule/caselaw if they have any doubts.

You can see a motion and brief in support by checking out this motion to compel discovery that was filed in an actual case recently involving the mayor of Detroit. It's obviously nothing that will specifically apply to your case, but you'll get an idea for how you to need to properly structure a motion and what sort of things you need to do to support your motion:

http://info.detnews.com/2008/0730worthy.pdf

Also keep in mind when the Plaintiff files a response to a motion of yours (or even their own motion) they can actually say anything they want. It doesn't make it true, or accurate. The courts are VERY busy so the court won't even spend much time looking at a motion until a hearing is set. They are also too busy to bother looking up a bunch of caselaw and verifying if everything is true. YOU need to look up EVERY court rule they mention, EVERY case they cite in any of their pleadings. In my case I caught the Plaintiff citing court rules that don't exist, citing improper parts of court rules that MIGHT apply, and trying to cite cases that had little to do with anything they were actually arguing once I read through things. The Plaintiff can and WILL lie. They can and WILL make mistakes. This is where the fact that you don't have 28 other cases going on at the same time helps you!

Edited by SingleDadJames
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Does anyone know the proper format for asking for Discovery in Michigan?:-(

I believe you can do this via a written Motion for Discovery...but there is an even easier way.

I wasted a TON of time reading the rules of civil procedure (it's one area where MI's rules of civil procedure are actually pretty difficult to decipher). I asked on the forums, in other places and couldn't find a straight forward answer. Honestly I wasn't sure how, when, or if I could ask for Discovery. I wanted to avoid the motion fees, hassle, and the potential of filing too much paperwork too fast and pi$$ing off the judge. All that worrying, wondering, and researching was a waste of time.

I went to my first pretrial and soon discovered asking for Discovery can be as simple as that...asking.

In my case the plaintiff did it for me. I denied the debt, demanded proof of ownership from the JDB in my answer. The judge pretty much brought up the issue of proof of ownership for me at my first pre-trial. Since I was claiming I had no knowledge the plaintiff's attorney asked for 30 days Discovery to request info from me :roll:I also saw the plaintiff's attorney ask for "30 Days Discovery" or "60 Days Discovery" in a few cases I observed.

You recently inquired about what to expect at a first pre-trial. In my case I was worried about how prepared I needed to be. I can honestly say there was nothing to worry about. The judge basically went over the basics, that I denied the debt, and requested proof of ownership/assignment, statements etc.

Every court's pre trial conference set up is different but generally the first one usually involves the judge determining what the issues are and what needs to be done to either try to resolve out of court and/or simultaneously get the case ready for a trial. Often times the first pre-trial will involve the judge setting a schedule for events such as Discovery etc complete with deadlines of when things need to be completed.

My 1st pre-trial wasn't that strict or structured. The judge asked what the issues were. I explained I had no knowledge of the debt, they've provided no proof of anything they were claiming nor did they provide proof they even owned the specific alleged debt to begin with. The judge sort of told the plaintiff they needed to get me a bill of sale etc b/c I had a point and the plaintiff also requested Discovery to obtain documentation etc. I don't think any of my pre-trial hearings were more than about 10 minutes long. (Usually closer to 5-8)

Of course you need to take ANY and ALL days in court seriously and prepare for the worst, but I stressed out way too much over what turned out to be nothing in my first couple pre-trials. I can honestly say I was always 10 times more prepared than the plaintiff's attorneys in my case. I did always worry they'd spring a surprise motion etc from their back pocket, but last resort I'd just ask the court for a continuance to have time to respond.

Generally speaking and from what LITTLE experience I have, a pre-trial isn't all that involved. At the first one just generally be prepared to explain calmly why you aren't admitting to everything and voluntarily handing over hard earned cash to a junk debt buyer. Lack of proof and lack of proof of ownership are always great places to start with these dirtbag junk debt buyers. Even if you admit the debt is yours and was owed to the OC I'd STILL demand strict proof that the JDB bought the debt, that the amount is correct, and they have any right to it.

All of the pre-trials in my case involved the plaintiff struggling to provide with me info I requested. They were little more than being prepared to make a logical explanation why the proceeding should carry on to trial or why I shouldn't just fork over some money to the Plaintiff. That was probably 60% of it. The other 40% was the judge encouraging us to step out into the hall to see if we could resolve the matter amongst ourselves.

I hope that helps!

Edited by SingleDadJames
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I have a pre trial date set for April 4th, but I have a schedule conflict. I have a medical procedure that needs to be done on that day. Does anyone know how to ask for a date to be rescheduled? Are you allowed to do that?

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I have a pre trial date set for April 4th, but I have a schedule conflict. I have a medical procedure that needs to be done on that day. Does anyone know how to ask for a date to be rescheduled? Are you allowed to do that?

You should start your own thread and ask that question, rather than ask it in all of the other threads on here.

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I have a pre trial date set for April 4th, but I have a schedule conflict. I have a medical procedure that needs to be done on that day. Does anyone know how to ask for a date to be rescheduled? Are you allowed to do that?

I would call the Plaintiff attorney and ask if they'll stipulate to a new date based upon your conflict. If so draft a stip and order to adjourn, have them sign it, then file it with the court...Also, before making the call to plaintiff I'd call the court ahead of time and get possible new dates, to suggest to Plaintiff. If they will not agree, file a motion to adjourn Pretrial and cite the medically necessary procedure, Plaintiff's refusal to stipulate, and ask the court to adjourn to a new date of...or to a date to be set by the court...

Lastly, Motions to Dismiss are governed by 2.116 which has very specific procedures built in, the other stuff cited above is for general motion stuff.

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  • 3 weeks later...
Lastly, Motions to Dismiss are governed by 2.116 which has very specific procedures built in, the other stuff cited above is for general motion stuff.

I missed this awhile back since it looked like the OP had abandoned the thread, but I wanted to add something for anyone following along later.

Although motions to dismiss may be governed by MCR 2.116, it's important to remember most of the "general motion stuff" still applies.

MCR 2.119 (G) Affidavits; Hearing.

(1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule.

There are different deadlines and requirements for a motion under MCR 2.116. You need to read and understand the Rules of Civil Procedure before you attempt to do this yourself. One would indeed need to follow the additional requirements under MCR 2.116 along with the applicable standard rules of motion practice for a written motion under MCR 2.119. Just because it's a Dispositive Motion and has some additional requirements doesn't mean you can forget all of the basic motion practice requirements. I'm pretty sure in MI if you scrawl a Motion to Dismiss on a piece of notebook paper with a pink crayon, never include a supporting brief, don't serve it on the plaintiff and never file or serve a notice of hearing you aren't going to get far.

I was merely pointing out that the OP would have to include a properly formatted motion including a supporting brief along with a notice of hearing etc and all the other applicable requirements for a standard motion to even get far enough to get to the good stuff under MCR 2.116. Since the original poster was asking what a "brief in support" is, there's a good chance they didn't follow standard motion practice.

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Hold up..you received a summons. You filed an answer..hopefully correctly with affirmative defenses.

Did you file a counter-suit? and if there was an affidavit, did you file a counter-affidavit?

Now, you want to file a motion to dismiss? Why? Unless the account is frivilous or it has been paid, you would need to submit evidence of it.

I am in Michigan, the district court will send you a pre-trial conference date. At pre-trial, the judge will ask what each of you need to proceed and set a time for discovery.

The Motion to dismiss will only hold up if the Plaintiff's attorneys do not show up. They cannot bring in a fill in contract attorney for the pre-trail, summary disposition, case evaluation or trial. The judge might dismiss the case. A motion is a separate hearing. It needs to be filed as a separate action, where you pay a $20 fee.

You shot yourself in the foot by not following Michigan Rule of Civil Procedure. Which gives you the cause of action. In Michigan, the only party that can file a motion of dismissal is the Plaintiff until there are not material facts that are disputed. This gives the Plaintiff the ability to prove their case. If they cannot prove their case, then you can file a Motion to Dismiss.

Typical Motions you can file are a motion to amend your pleading, extension of time, compelling the Plaintiff to do some action...etc.

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Also, after at the end of your answer you can write that the Defendant requests that this case in its entirety to be dismissed.

Now, at Pre-Trial the Plaintiff Attorney will ask you if you want to talk before you stand in front of the judge. Do not give the attorney any personal information like your DOB or SSN or tell them that this is your debt. They can use that against you.

In the summons who is the attorney? What is their cause of action ie Breach of Contract, Account Stated....etc?

If it is breach of contract even if it is implied or written...look at Michigan Civil Rule-MCR 2.113

If they filed under account stated look at Michigan Complied Law 600.2145. They would need to submit an affidavit from the OP, not the attorney with documentary evidence like an account statement or terms and conditions. Make sure you read terms and conditions to see when they were dated. If they were dated before you received the card, they are not valid. Also, look at the date of the affidavit and the summons to make sure they are dated within 10 days of one another. If it is, then file a counter-affidavit denying the claims in theirs. If it is greater than 10 days, file a counter stating that it does not comply with MCL 600.2145 and cannot be used as evidence to prove their case.

If you do not counter and they submitted their affidavit properly, then technically thats all they need to prove their claim. By not countering, you agree that the amount owed is correct and it owed or you assent that the amount is correct.

You gotta love living in Michigan. Our laws are so messed up.

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If they filed under account stated look at Michigan Complied Law 600.2145. They would need to submit an affidavit from the OP, not the attorney with documentary evidence like an account statement or terms and conditions.

That statement could be misleading and I just wanted to point out a couple of things that could be misunderstood. To prove or maintain an account stated cause of action the plaintiff does not have to do anything under MCL 600.2145. That is only ONE (albeit extremely easy) way for them to go after account stated. If they meet all the requirements of the law and the defendant fails to properly respond it's almost as easy as a default judgment for them...but the affidavit described in the law is not a requirement for an account stated claim.

Also for the purposes of MCL 600.2145 the affidavit does NOT have to be from the OC. In fact the law doesn't say who the affidavit has to be from..only that it should be from the Plaintiff or "someone on his behalf". :roll: That's why it's so common for junk debt buyers to use an affidavit from their legal spe******ts or records custodians. Of course anything less than an affidavit from the OC and you attack it at trial or whenever possible as hearsay, untrustworthy or however else you can. The affidavit does not have to be from the oc...even if the OC is the plaintiff.

I just want to point this out for anyone from MI who reads this out of context.

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In Michigan, the only party that can file a motion of dismissal is the Plaintiff until there are not material facts that are disputed. This gives the Plaintiff the ability to prove their case. If they cannot prove their case, then you can file a Motion to Dismiss.

Typical Motions you can file are a motion to amend your pleading, extension of time, compelling the Plaintiff to do some action...etc.

Not picking on you bmc..but that's a little misleading to. The Defendant can file

a motion to dismiss. Granted, the situations where this is going to be appropriate are probably not going to be as numerous as they are for the plaintiff. That being said, a Defendant can indeed move for dismissal and get it granted in MI if the situation is right. Again, I just want to make sure those Michiganders who come along and pick up a post mid thread aren't mislead.

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Not picking on you bmc..but that's a little misleading to. The Defendant can file

a motion to dismiss. Granted, the situations where this is going to be appropriate are probably not going to be as numerous as they are for the plaintiff. That being said, a Defendant can indeed move for dismissal and get it granted in MI if the situation is right. Again, I just want to make sure those Michiganders who come along and pick up a post mid thread aren't mislead.

Single Dad,

Thank you for the correction. Now, judges in Michigan will hear the motion during a motion day as long as you follow MRCP. As I mentioned in a previous post, a couple ways that a motion would be granted is if the suit was frivilous or the debt has been paid. Judges tend to give attorneys a wide range of movement and will typically allow the Plaintiff's attorney to prove their case. The one way to get a judge to dismiss the case is for improper service. To get a judge to agree to dismiss with prejudice is more difficult unless you can prove that you hold the preponderance of the evidence.

Rule 2.115 describes the how to change a pleading.

Rule 2.116 Summary Disposition

Rule 2.502 Dismissal for Lack of Progress

Rule 2.119 Motion practice

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  • 1 year later...

Very interesting stuff I am currently going through a case against Citi bank I had a pre-trail but never even saw the judge the attorney wanted to talk out in the hall and I said no so they went up to the clerk that sits in the court room and asked for discovery then went out to the clerk who gave us a date for the bench trail which is scheduled in July I haven't received any discovery as of yet and I am preparing mine

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These are designed for this creditor. Do not change the wording.

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

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