triplec

Oh No!! Panic Attack! Summary Disposition Question - Michigan

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I hope someone knows how this works in Michigan. I have been reading the chapter 2 civil procedures over and over and having a hard time understanding what is happening here. I received a summons and complaint in early April from an attorney representing a credit card company.

I actually hired an attorney in the same city of the opposing attorney to negotiate and help me with the answer to the summons and complaint in early April. Last Friday I received in a 2 day priority postal package a notice of hearing and a "Plaintiff's Motion for summary disposition and for judgment on the complaint". I spoke with the attorney and we talked about what I would negotiate for and claiming bankruptcy(I am not sure he is doing a good job). He never told me what to do next so I did not panic at that moment. I don't think it is necessary to claim bankruptcy. I don't want to mess this up. I don't think I should have to pay the abusive penalties, fees and usurious interest rates now considered illegal by the new credit card act.

I have been researching for about a week on how to answer this and called the self-help center 2 days ago. I called to find out about sitting in on similar trials and what my next step should be after answering a summons and complaint and receiving the above package. Again this package contained a "Notice of Hearing scheduled next month" and a separate "Plaintiff's Motion for Summary Disposition and for Judgement on the Complaint" as well as another package of paper stapled together called "brief in support of plaintiff's motion for summary disposition and for judgment on the complaint" I thought after reading everything I understood this as having to get my answer in 7 days prior to the Notice of Hearing.

This is where I am having a panic attack. The courthouse self help lady left me a message today in a panic voice telling me to hurry up and get my objection in asap. I got the message today (Friday) after 5:00 pm and now I am sick to my stomach.

I am embarrassed to say I am a huge newbie to the court system and never gave it a passing thought until now. It is nearly impossible to understand what is going on in such a short time frame.

Can someone explain to me what the next step in Michigan is? Can the Notice of Hearing titled "Plaintiff's Motion for Summary Disposition shall be brought on hearing on Monday............." (to be held later next month) be canceled and a judgment just made anytime?

Edited by triplec

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I am in Michigan and dealt with an MSJ last year. First, we would need to know what the complaint said and who is suing you ie the OC or a JDB as well as the attorneys office. Two, we would need to know what the MSJ said. Three are you in District or Circuit Court.

You most likely spoke to a bankruptcy attorney and not a consumer or civil law attorney. All the bankruptcy attorney wants you to do is file bankruptcy since that is what they do.

Please give more information on the pleadings and then we can give you some ideas. You need to write and file a your opposition to MSJ.

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I am going through this right now. They are not supposed to hold a Motion for Summary Judgement until 28 days after you have been served with it. You do have to have your answer in 7 days prior to the hearing. Also, you have 21 days to answer the Motion. If your hearing date is next month than you should have time to file your answer.

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I will try to keep this short.

I would like to end this situation with cap1 by paying only the amount I should rightly owe under the new rules. Of course the new rules which coincidently came about because folks like us are the ones who complained. I have paid the principle and then some on this account if it means anything.

I hired an attorney in the big city who was more than happy to deal with this and help me negotiate as well as fill out the answer to the summons and complaint. I paid him what I had left of my savings about 3 weeks ago.

I have not heard from him in a week and he does not seem to be concerned about this latest development which scares me. In our initial conversations bankruptcy was not on the table and it was just an after thought but last we spoke he kept bringing it up.

I believe this is an Original Creditor represented by one of the 8 to 9 well known attorneys in Michigan. "Word Doc Mills" Should I list all the items in the original complaint here as well as my answers? With the summary disposition I received a copy of all my statements, a generic credit card agreement and the brief below with case law exhibits.

Plaintiffs Brief for Summary Disposition and Judgment on the complaint

I Facts

1 Defendant was issued a credit card, Acct. # $@$%^^&^

2. The the def used the charge acct to purchase goods and services pursuant to a credit card agreement

3 That pursuant to the CC agreement, Def was obligated to pay plaintiff the full monthly payment when due.

4 That the defendant failed, refused and neglected to pay the full monthly payment when due and is pursuant to the credit card agreement in default.

Then they go on to say my answers to the complaint are general denial only without specifics.

II Issues

whether summary should be granted

III

A page of cases why they should be granted a disposition.

IV

Why the cardmember agreement does not to be signed. supported by and under

A Mich Case Law

B Fed Law

C National Case Law

V They claim there is no issue to the amount of Damages because I have not submitted documentary evidence.

VI Interest rate is allowed

A Due to a deregulation act in 1980 cap1 may charge ir allowed in home

state of Vir

B The IR charged is allowed under Virginal Law

C The IR charged by the plaintiff bank is legal MCL 445.1852(2)

D Plaintiff may charge late fees, over limit and other charges in

agreement

VII

Plaintiff does not rely on mcl 600.2145 The 10 day Affidavit is merely permissive.

VIII

Parties Appearing in propria persona are held to the same standard as members of the bar

IX Argument

and why the affidavit can still work even though there is the issue of 10 days pursuant to MCL 600.2145

I have no idea what the attorney did I hired and what he said to the OC Attorney. I have a message into him to send me copies of the communication. I have a feeling I won't get it by Monday morning when I file the opposition.

I understand now I need at least 1 genuine material fact to disprove? Any ideas?

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I take it that there was an affidavit attached to the complaint since they referenced MCL 600.2145 which is account stated.

The basis of their complaint is breach of contract. Since they referenced a credit card agreement. Did they attach a card agreement to the affidavit as part of an exhibit. Furthermore, unless you file a counter-claim, you do not need to file any evidence.

There is pleanty of caselaw where the defendant had cases dismissed for an affidavit not being dated within 10 days or the summons as well as their not being any documentary evidence attached to the affidavit cause it breaches rules of civil procedure 2.113.

It looks like they know that they screwed up with the affidavit and they are trying to cover it up. I hope though you filed a counter-affidavit to nullify it completely.

Also if they want to use VA law, then use civil procedure rules that the court does not hold jurisdiction in this case since they want to use VA law, and force them to disclose the rates that VA law says what IR they can charge. It would also help for you to tell us who the attorney is and what caselaw they are using.

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Yes. an affidavit was attached to the complaint.

A credit card agreement came with the copies of the brief for summary disposition and judgement. I will look into 2.113.

I have not filed anything since receiving this on the 13th from buckles. When you ask me about filing a counter-affidavit is this part of the opposition to the plaintiffs brief for judgement that I will be filing or something separate I should do tomorrow morning first thing? Here is the part I am having a hard time understanding. Do I have a deadline date for the next move after receiving this on the 13th in a 2 day priority usps package?

The attorney outfit is Buckles and will work on listing all the case law under each each point?

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III. SUMMARY DISPOSITION STANDARD OF REVIEW

A motion for summary disposition under MCR 2.11 6©(1 0) tests whether there is factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, or other documentary evidence available to it. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993).

The moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Ward v Frank’s Nursery & Crafts, mc, 186 Mich App 120, 134; 463 NW2d 442 (1990). The party opposing the motion then has the burden of showing that a genuine issue of disputed facts exists. Pantely v Garris, Garris & Garris, PC, 180 Mich App 768, 773; 447 NW2d 864 (1989).

The nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. McCarty vJ Walter Thompson USA, mc, 437 Mich 109, 115; 469 NW2d 284 (1991).

A trial court may grant a motion for summary disposition under MCR 2.116©(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. MCR 2.11 6©(10), (G)(4). In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v. Glove Furniture Rentals, 205 Mich. App 418, 420; 522 NW2d 335 (1994). The burden then shifis to the opposing party to establish that a genuine issue of disputed fact exists. Id.

If the opposing party fails to present documentary evidence establishing the existence of a

material factual dispute, the motion is properly granted. McCormic v. Auto Club Ins. a$$’n, 202

Mich. App 233, 237; 507 NW2d 741 (1993). Smith v. Globe LU’e Ins Co, 460 Mich. 446, 454-

455; 597 NW2d 28 (1999), quoting Quinto v. Cross & Peters Co, 451 Mich. 358, 362-363; 547

NW2d 314 (1996).

“A litigant’s mere pledge to establish an issue of fact at trial cannot survive summary disposition under MCR 2.116©(lO).” Maiden v. Rozwood, 461 Mich. 109, 121; 597 NW2d 817 (1999). Instead, a litigant opposing a properly supported motion for summary disposition under this subrule must present substantively admissible evidence to the trial court prior to its decision on the motion.

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IV. THE CARDMEMBER AGREEMENT WHICH GOVERNS THE TERMS OF THE CHARGE ACCOUNT DOES NOT NEED TO BE SIGNED BY THE DEFENDANT

A. MICHIGAN LAW

The Legislature for the State of Michigan amended the Retail Installment Sales Act in 1966, and provided in MCL 445.862(a) that:

A retail charge agreement shall be considered signed and accepted by the buyer... if the retail charge account is used by the buyer or another person authorized by the buyer.

In short, use of a credit card in Michigan is tantamount to signature on the retail charge agreement. Plaintiff has alleged usc of the charge account and, therefore, Defendant’s use of the charge account constitutes the same as a signed and accepted agreement. Plaintiff has provided copies of the statements reflecting use of the charge account by the Defendant in this matter.

B. MICHIGAN CASE LAW

In the unpublished opinion of Credigy Receivables, Inc v Townsley, Oakland County Circuit Court 2007-008597-AV (2008), (Exhibit D), Defendant alleged that the trial court erred by granting summary disposition because Plaintiff did not provide evidence of a contract, and its 3 terms, between the parties. The court held that, in Michigan, use of a credit card creates a binding contract between the issuer and user. Id at 3. The court reasoned that the issuance of the credit card constituted an offer, and the use of the card constituted acceptance. Id. Therefore, Defendant’s use of the card constituted acceptance of Plaintiffs offer and terms of use of the card, and created a binding contract with Defendant.

C. FEDERAL LAW

Furthermore, Federal Law provides that a consumer may be responsible on a credit card without the requirement of a written application. 12 CFR 226.12 provides in part:

“Special credit card provisions. (a) Issuance of credit cards. Regardless of the purpose for which a credit card is to be used, including business, commercial, or agricultural use, no credit card shall be issued to any person except: (1) In response to an ORAL or written request or application for the card; or (2) As a renewal of, or substitute for, an accepted credit card. For purposes of this section, accepted credit card means any credit card that a cardholder has requested or applied for and received, or has signed, used, or authorized another person to use to obtain credit. Any credit card issued as a renewal or substitute in accordance with this paragraph becomes an accepted credit card when received by the cardholder.” [emphasis added]

Accordingly, an oral request for a credit card is permissible pursuant to Federal Regulations. The request for application may be oral or in response to a telephone solicitation by card issuer or written. See official Staff commentary on Regulation Z.

D. NATIONAL CASE LAW

Numerous decisions have been rendered in several courts throughout the United States confirming the accepted principle that use of a credit card constitutes acceptance of the terms and conditions of the credit card agreement. Each of these cases dealt with a challenge to the credit card by the debtor claiming that, since the credit card agreement was not signed, the debtor was exempted from liability. The courts uniformly held that failure to sign a credit card agreement does not discharge a debtor from liability. Moreover, each case that is cited below upheld the 4 concept that an unsigned credit card agreement is still valid and the debtor is bound by the terms and conditions if he/she used the account and/or made payments thereon.

“Acceptance or use of the card by the offeree makes a contract between the parties according to the terms...” Bank of America v Jarczyk, 268 BR 17 (W.D.N.Y. 2001) quoting City Stores v Henderson, 116 Ga App 114; 156 SE2d 818 (1967). The Court goes on to say, “Because it is the use of the credit card, and not the issuance, that creates an enforceable contract, each time a cardholder uses his credit card, he accepts the offer by tendering his promise to perform (i.e. to repay the debt upon the terms set forth in the credit card agreement)” [emphasis added] Id citing Corbin on Contracts, Revised Ed. § 1.23.

“The absence of an underlying agreement, if established, would not relieve [defendant] of his obligation to pay for goods and services received on credit.” Citibank (S.D.) NA. v Roberts, 304 AD2d 901; 757 NYS2d 365 (2003) citing Federer v FortubfJ 123 Misc 2d 857 (1984).

“Credit card agreements are contracts whereby the issuance and use of a credit card creates a legally binding agreement.” Bank One, Columbus, NA. v Palmer, 63 Ohio App3d 491; 579 NE2d 284 (1989) citing Manufacturers & Traders Trust Co. v Lindauer, 135 Misc 2d 132; 513 NYS2d 629 (1987).

“...undisputed use of the cards sent to him.. .constituted an acceptance of the cards and an sent to the agreement underlying their issuance.” Duke v Sears, Roebuck and Co., 433 SW2d 919 (1968) citing Magnolia Petroleum Co. v McMillan, 168 SW2d 881 (1943).

“The issuance of the card to the defendant amounted to a mere offer on plaintiffs part, and the contract became entire when the defendant retained the card and thereafter made use of it. The card itself then constituted a formal and binding contract.” Read v Gulf Oil Corporation, 114 Ga App 21; 150 SE2d 319 (1966), citing Texaco Inc. v Goldstein, 34 Misc 2d 751; 229 NY2d 51.

Performance of an act which an offerec is requested to perform may constitute valid acceptance. United Concrete Pipe Corporation v Spin-Line Company, Inc., 430 SW2d 360 (1968).

Acceptance of an offer may also be shown by performance and acceptance of benefits by one to whom the offer was made. McCarty v Langdeau, 337 SW2d 407 (1960).

“The issuance of a credit card is but an offer to extend a line of open account credit. Acceptance or use of the card by the offeree makes a contract between the parties according to the terms...” Novack v Cities Service Oil Company, 149 NJ Super 542; 374 A2d 89 (1977) citing City Stores Co. vHenderson, 116 Ga App 114; 156 SE2d 818 (1967).

“...each individual credit card transaction as a unilateral contract between the card holder and card issuer. . .the card holder promises to repay the debt.. . and the card issuer performs by reimbursing the merchant who has accepted the credit card in payment.” Anastas v American Savings Bank (In re Anastas), 94 F3d 1280 (1996).

“Until the consumer negotiates a transaction using the credit card, there has been no extension of credit, no debt has accrued, and the creditor’s funds have not been transferred to the use of the borrower.” Goldman v First National Bank of Chicago, 532 F2d 10 (1976).

“The solicitation was to open a credit card/charge account which would be subject to an Agreement which would be sent out with the credit card. Use of the credit card would constitute acceptance of the terms in the Agreement.” Grasso v First USA Bank, 713 A2d 304 (1998).

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Look closely at the affidavit itself and compare it to the one in Brent v Midland, just because its cap1 it doesn't mean that they don't make mistakes.

If it came with the Complaint I would compile a counter affidavit

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When was the date of last activity on your card ? Also, has Cap1 specified choice of law, your state or VIRGINIA ? Remember, the SOL in Va is 3 years.

If no ref has been given to choice of law , then you can argue that Va law might apply.

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Since it is Cap1, you probably have an arbitration clause in the user agreement. I would also look closely at the billing statements, Cap1 likes to set the trap for over the limit caused by interest when they intentionally bill you for less each month than it takes to land you in safe ground. That is a false, deceptive and misleading business practice. I used those 2 points last year to defeat a MSJ with Cap1, the Judge agreed with me.

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IV. THE CARDMEMBER AGREEMENT WHICH GOVERNS THE TERMS OF THE CHARGE ACCOUNT DOES NOT NEED TO BE SIGNED BY THE DEFENDANT

C. FEDERAL LAW

Furthermore, Federal Law provides that a consumer may be responsible on a credit card without the requirement of a written application. 12 CFR 226.12 provides in part:

“Special credit card provisions. (a) Issuance of credit cards. Regardless of the purpose for which a credit card is to be used, including business, commercial, or agricultural use, no credit card shall be issued to any person except: (1) In response to an ORAL or written request or application for the card; or (2) As a renewal of, or substitute for, an accepted credit card. For purposes of this section, accepted credit card means any credit card that a cardholder has requested or applied for and received, or has signed, used, or authorized another person to use to obtain credit. Any credit card issued as a renewal or substitute in accordance with this paragraph becomes an accepted credit card when received by the cardholder.” [emphasis added]

Accordingly, an oral request for a credit card is permissible pursuant to Federal Regulations. The request for application may be oral or in response to a telephone solicitation by card issuer or written. See official Staff commentary on Regulation Z.

As I have stated in other post, Federal Law requires an application for the issuance of a credit card. In discovery, requesting a contract or user agreement before requesting the application is putting the cart before the horse.

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I am writing this in a hurry you may have already tried these things I didn't get to read all of your posts. I am running late today. Most attorneys defending these suits tend to suggest bankruptcy or settlement because they believe they can't win, it is very unfortunate keep in mind the burden of proof is on the plaintiff. If the agreement is a generic form agreement and does it have any information which links it to your acct, Also if it is not dated from the day you opened your account this is a problem should be the original document.

A credit card company has many different agreements as well as many that apply to only certain classes of accounts. Can they prove this particular agreement was ever offered to you? Also over the years many amendments to agreements are made have all of these been provided? If you can get this book today get it. I know the title is tacky and you probably don't have time to read it but it does have some really good points and laws you can refer to which may help you. The affidavit is it a credible witness? If the person who wrote it works for anyone but the original creditor, this is hearsay and can't be used. Sorry I couldn't do more. This book will help you file motions to dismiss with the laws to back it up if any situation listed applies to you account. The book will tell you about the summary judgments also.

Ignore the dumb name of the book but it has some surprisingly good information, May help you.

Stick it to the Sue Happy Debt Collectors by Allen Harkleroad

Edited by Justicewanted

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What settlements are people getting offered in Michigan? 1/3 or 1/2?

Do you take what comes first? Do you negotiate?

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I take it that there was an affidavit attached to the complaint since they referenced MCL 600.2145 which is account stated.

The basis of their complaint is breach of contract. Since they referenced a credit card agreement. Did they attach a card agreement to the affidavit as part of an exhibit. Furthermore, unless you file a counter-claim, you do not need to file any evidence.

There is pleanty of caselaw where the defendant had cases dismissed for an affidavit not being dated within 10 days or the summons as well as their not being any documentary evidence attached to the affidavit cause it breaches rules of civil procedure 2.113.

It looks like they know that they screwed up with the affidavit and they are trying to cover it up. I hope though you filed a counter-affidavit to nullify it completely.

Also if they want to use VA law, then use civil procedure rules that the court does not hold jurisdiction in this case since they want to use VA law, and force them to disclose the rates that VA law says what IR they can charge. It would also help for you to tell us who the attorney is and what caselaw they are using.

bmc100 - I am in the same situation with Discover card but still dealing with Buckles and Buckles. I was reading through the noted civil procedure and I am unsure how I can use that to have the affidavit dismissed as evidence.

I have thread that is started "Sued by Discover Card in Michigan-Please Help" for additional details.

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