Somewhat Confused

Update, Needing a Little More Help w/Discover Answers Please....

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Single Dad James you are a good man. resident expert in michigan law. I only wish more attorneys from other states would summon up the blood like CALawyer here in california.

It is good to see people helping each other nowadays instead of the endless screwing over of our fellow man for big profit.

one measure of wheat for a penny I guess

Well thanks for the compliment. I've been so busy I haven't had time to be as active on the site as I would like. I got called back to help out and I remembered why I took a break. Aside from family health issues I'm realizing I sometimes get a little TOO obsessed with helping out and before I know it 3 hours of the night are gone while I was reading and posting here!

I only wish I could afford law school. It really is something I enjoy learning about.

I'm FAR from a "resident expert on MI law" but I did learn quite a bit trying to tread water while keeping the sharks at bay. The fact that most of these creditor attorneys aren't used to putting much time and effort into anything beyond plugging info into a word processor template helps out. I'm sure I'm not match for a determined and wise attorney, but I'm now not so afraid to give the typical lazy suit chasing the default express a run for his money!

I have to agree with the statements about CaLawyer. I only wish we could find just ONE attorney like him from every state. The site would be unstoppable!

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Instead of helping just one person you can reach hundreds on the board. and who knows you may pick up clients. people on this board are looking for attorneys who won't bail at the last minute, and who see injustice and help. by allowing several consumer attorneys to discuss legal issues between members of different bars to see the best winning strategies.

So please come here and discuss maybe it will allow other attorneys to learn how not to screw a client.

This post is not meant to disparage any attorneys who spend time here to help. You are the saints and probably the only lawyers you will see in heaven.

but an open invitation for other attorneys to have a place where law issues are discussed. In addition we have an excellent wine discussion here and we play a mean game of ten things.

Thank you

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Well I thank the both of you & bv80 and also everyone here who does take the time to help, you guys & ladies should all be commended for your time and effort in being here & in helping people like us! And I have no doubt that this site will continue to draw in good people and hopefully bring in some lawyers who will want to give a little time (pro bono) to help (karma thing).

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Hi everyone today I received quiet a large packet from them today. Enclosed was the following;

PLAINTIFF RESPONCES TO DEFENDANTS INTERROGATORIES & REQUEST

FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF

No comes the Plaintiff, by and through its attorney, blah blah blah, and hereby states in response to Defendant’s request for discovery as follows:

General Objections:

1. Plaintiff objects to all instructions and definition to the extent that they do not conform with the Michigan Court Rule.

2. Plaintiff object to any definition or instruction that seeks material not likely to lead to discoverable material or seeks information that is privileged.

DEFENDANTS INTERROGATORIES & REQUEST FOR PRODUCTION OF DOCUMENTS TO PLANTIFF:

PRODUCTION OF DOCUMENTS From Defendant to Plaintiff:

1. The alleged credit application from Chase Account Numbers #xxxxxxx bearing the defendant’s signature;

ANSWER: Plaintiff objects on the basis of relevance. Plaintiff relies on MCL 445.862(a) where liability is established through use of the account. Note: From what I saw they didn't show I used the account(s) only shows payments made on said account.

2. The alleged credit agreement from Account Numbers #XXXXXX that states interest rate, grace period, terms of repayment, et cetera; in effect at the time the alleged account was created and each subsequent revised agreement or addendum. Defendant requires a copy of the alleged original agreement from the year of card issue supported by identification of the class of the alleged card and all addendums, proof of source, proof of mailing, proof of receipt and proof of acceptance by Defendant.

ANSWER: Please refer to the documents attached to Plaintiff’s Motion for Summary Disposition for all documents in the possession, custody or control of Plaintiff.

3. Itemized statements or credit card statements from Account Numbers #XXXXXX that demonstrate how the alleged amount was calculated; to include complete and total payment history showing all credits, debits, and charges posted to the alleged account and sources thereof. Defendant requires copies of all alleged statements from 0 balance to the present sum declared as owing by Plaintiff with proof of mailing, receipt, acceptance, and payment i.e. cancelled checks.

ANSWER: Please refer to the documents attached to Plaintiff’s Motion for Summary Disposition for all documents in the possession, custody or control of Plaintiff.

4. A contract, agreement, assignment, or bill of sale demonstrating that Port., LLC / M. J. E. P.C. is the owner of the alleged account that is the subject of Plaintiff’s Complaint.

ANSWER: Plaintiff objects on the basis of relevancy. Pursuant to MCR 2.111(E)(1), allegations contained in a pleading that requires a responsive pleading are deemed admitted if not denied in the responsive pleading.

5. Letter(s) sent to defendant by M. J. E. demonstrating an attempt to collect on the alleged debt, Account Number #XXXXXX;

ANSWER: Plaintiff objects on the basis of relevance.

6. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

ANSWER: Plaintiff objects on the basis of relevance.

7. Any and all further documents that you believe establish that plaintiff had an outstanding account or debt related to Account Numbers #XXXXXX;

ANSWER: Please refer to the documents attached to Plaintiff’s Motion for Summary Disposition for all documents in the possession, custody or control of Plaintiff.

8. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt;

ANSWER: Please refer to the documents attached to Plaintiff’s Motion for Summary Disposition for all documents in the possession, custody or control of Plaintiff.

9. Any and all written communication, received by the plaintiff and/or plaintiff’s attorney from the defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff’s and/or plaintiff’s attorney accessing of defendant’s credit report(s).

ANSWER: Plaintiff objects on the basis of relevance.

10. Any and all communications from plaintiff and/or plaintiff’s attorney to the defendant explaining why plaintiff and/or plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s);

ANSWER: Plaintiff objects on the basis of relevance.

11. Any and all credit report(s) plaintiff and/or plaintiff’s attorney obtained from any credit reporting agency concerning the defendant;

ANSWER: Plaintiff objects on the basis of relevance.

12. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or Account Number #XXXXXX;

ANSWER: Plaintiff objects on the basis that the request is overly broad and seeks privileged information.

13. The plaintiff’s Articles of Incorporation;

ANSWER: Plaintiff objects on the basis of relevance.

14. Affidavit as to how any documents came into the possession of Port identifying the source and authority of same.

ANSWER: Please refer to the Business Records Certification attached to Plaintiffs Motion for Summary Dispostion.

Also guys there was another huge set of papers as follows;

NOTICE OF INTENT TO SUBMIT DOCUMENTS PURSUANT TO MRE 902(1)

Now comes Plaintiff, by and thorough its attorneys, and hereby submits the attached documents pursuant to MRE 902(11).

Second Page is what appears to be a letterhead from JPMORGANChase – it says Business Records Certification - this appears to me that it could have been done/printed by Port only becasue I would think that the bank would have some kind of an official seal or bank stamp that proves this is a real document from them or I could be wrong with the huge mass of copied statement they have enclosed in here.

Business Records Certification states, I hereby certify that the enclosed record(s) are a true and correct cpy of the original documents maintained by Chase Bank USA, N.A. in the ordinary course of business and the original records were created at or around the time of the actual transactions.

Signed

B. Henderson

Subpeona Analysis - thats it - it is not notarized or stamped or anything.

Third Page: Inventory Listing

Chase File No: XXXXX

Customer Name: My Name

Acct #XXXX

Request Type CC

Comment: Enclosed are copies of the card member agreement.

Request Type: CC Statements

Date Range: 2/99 – 6/07

Comments: Enclosed are copies of statements for date range 4/05-6/07

Fourth Page: Barely can read as it is a very small print of a copy that states: Visa Classic Providian National Bank Account Agreement. From what I can see there are no dates on here to show when this agreement was written.

The next - oh my - (38) pages appears to be a lot of copied statement from the following:

The first (6) pages are copies of an Providian statements, it has account balance, my name & address. Below that is the account number and wow it shows that I had a huge credit line of over 4,500 hundred (btw 4/05-8/05) oddly it never went over 1,400 hundred (very strange all that money and I didnt spend not even half of it) :wink:

In looking over this huge set of copied statements none of them show or has any kind of purchases made - only late payment charges, finance charges & payments that were made on the account. So I am wondering if they have all this then why doesn’t it show any purchases or how the account got to the amount owed. Or maybe they are holding out.

On the (7th) page the credit line & statement name has now changed to:

Washington Mutual Card Service (10/05 through 06/07) in the important message field it states that my account is now Closed (on 10/05 statement) doesn’t say who closed it or why. Behind the copied statement page 7/06 and all those that followed is a page where it says Important Payment Info. They made it so small I could barely read it.

The copies of statements goes from 10/05 through 06/07. From the months of 12/06 through 6/07 there is no account activity what so ever, there are no payments shown or have been made between that timeline just finance charges added (12/06-6/07).

Last page is a letter of proof of mailing from them to me. Well guys I have to say that in looking at all this - oh my - they seem to have it all together. I cant believe they have all these copies of these statements - I don't know if I have a chance with all this you guys where can I go from here.

Edited by Somewhat Confused

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MOTION SCHEDULING & ORDER FORM (PRECIPE)

1. Motion Title: Plaintiffs Motion for Summary Judgment

2. Moving Party: Plaintiff or Attorney/Defendant or Attorney: Plaintiffs Attorney

3. Please place on the motion Review/Decision calendar of Judge: Bryant Weeks

4. I certify that the opposing party was served with a copy of the motion on Sept 2

5. I certify that I have not have made personal contact with opposing party regarding concurrence in the relief sought in this motion and concurrence had been denied.

Next Page:

STATE OF MICHIGAN

IN THE 36TH DISTRICT COURT

Notice of Hearing

To: Me

Please take notice that the undersigned will bring the attached Motion for hearing before this Honorable Court on a date to be set by the court.

Signed by the attorney.

Next Page:

PLAINTIFFS MOTION FOR SUMMARY DISPOSITION

NOW COMES Plaintiff Port Rec by and through it attorneys, and for its motion for summary disposition states as follows;

1. This motion is brought pursuant to MCR 2.116© (10).

2. That Plaintiff filed this action against Defendant on Dec 2010, in the amount of XXXX, as damages sustained as a result of Defendants failure to remit repayment in full for an account as agreed.

3. That for the reasons more fully outlined in the attached brief support, there remains no genuine issue as to any material fact and Plaintiff’s Motion for Summary Disposition should be granted.

4. WHERFORE, Plaintiff respectfully requests that this Honorable Court grant its Motion for Summary Disposition and enter judgment in favor of Plaintiff and against Defendant in the amount of xxxxx plus all applicable costs and interest.

Signed by attorney.

Next Page:

BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY DISPOSITON

Plaintiff, as an assignee, filed suit against the Defendant to collect monies owed on the Defendants defaulted Providian credit account issued by Washington Mutual. Plaintiff alleged damages in the amount of xxxxx. The subject matter account was opened February 1999. The Defendant subsequently used the account while paying less than the balanced owed. (see attached Plaintiffs Exhibit #1-Business Records Certification, Inventory Listing, Account Agreement and Account Statements).

My Note: That’s pretty funny because it shows on the statements that the minimum payment due was paid if not more then what was due.

Beginning with the statement dated Oct 2005, it states, “Your account is issued by Washington Mutual Bank…on each statement (Exhibit #1). Washington was subsequently acquired by Chase Bknk.

The account statements are solely in the Defendants name and reflect the same address at which Defendant was served in these proceedings. (Exhibit #1) (Which by the way is a copy of a statement)? The activity recorded on the statements indicates the Defendant used the account to make purchases and also that Defendant made payments on the account.

My Note: Not one statement shows any purchases what so ever. It does although show payments made.

The Statement dated June 07 reflects a balance due and owing of xxxx which continued to accrue interest at a rate of 5% (Exhibit #1). Plaintiff Portflo attached an affidavit of ownership to the Complaint, said affidavit thus becoming part of the pleadings, MCR 2.113 (F) (3). (See attached Plaintiffs Exhibit #2-Affidavit by Portflo dated Aug 2010).

My Note: Affidavit is dated Aug 24, 2010 – First Summons & Complaint is filed October 15, 2010.

Plaintiff filed suit sounding in account stated and breach of contract. The Defendant filed an Answer in this case stating that Defendant was without suffice information to admit or deny any of the allegations set forth in Plaintiffs Complaint. Pursuant to MCR 2.111(E) (1), allegations contained in a pleading that requires a responsive pleading are deemed admitted if not denied in the responsive pleading. Accordingly, Defendant has admitted to the following: Plaintiff predecessor in interest is Washington, Washington allowed defendant to charge goods on open account upon Defendants promise to pay for same, Washington sent statements to Defendants regarding the subject matter account and Defendant did not dispute or object to the charges within a reasonable amount of time, and Defendant has not paid the balance owed on the account which resulted in default.

This Honorable court entered an Order allowing discover in this matter. In response to Plaintiff’s Interrogators and Request for Production of Documents, Defendant objects to all of Plaintiffs interrogatories and request for documents.

STANDARD OF REVIEW – MCR 2.116© (10)

A motion for summary disposition brought pursuant to MCR 2.116© (10) tests the factual sufficiency of the complaint. Maiden V Rozwood evaluating a motion under this subsection, a trial court considers affidavits, pleadings, dispositions, admission, and other evidence submitted by the parties in the light most favorable to the party opposing the motion. MCR 2.116(G) (5). Maiden 597 NW2d at 824. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law.

A litigant’s mere pledge to establish an issue of fact at trial cannot defeat summary disposition under MCR 2.116©(10). The court rule plainly requires the adverse party to set forth “specific facts” at the time of the motion showing a genuine issue for trial. Accordingly, the reviewing court should evaluate a motion for summary disposition under this subsection by considering the substantively admissible evidence actually proffered in opposition to the motion Id.at 824. Evidence offered in support or rebuttal to a motion for summary disposition need not be actually admissible as if this motion is a trial, rather the substance or content of the exhibit needs to be “plausibly admissible” Maiden, supra at 123. The reviewing court is instructed to consider the substance of the document and not the manner in which it is submitted. Madien, supra at 124 and footnote 6.

ACCOUNT STATED AND BREACH OF CONTRACT

An account sated claim can be proven through evidence of an express understanding, or words and acts, and the necessary and proper inferences thereon. To establish a claim for account stated, a plaintiff must prove that the defendant accepted bills tendered by paying them or failed to object to them within a reasonable time. Keywell & Rosenfeld v Bithell, 254 MichApp 300, 331; 657 NW2d 759 (2002).

Where a plaintiff is able to show that the mutual dealings which have occurred between two parties, the law implies a promise to pay that outstanding balance. Kaunitz v Wheeler, 344 Mich 181,185; 73 NW2d263 (1955), quoting from White V Campbell, 25 Mich 463, 468 (1872), the Michigan Supreme Court explained as follows:

The conversion of an open account into an account stated is an operation by which the parties assent to the sum as the correct balance due from one to the other; and whether this operation had been performed or not, in any instance, must depend upon the facts. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account.

To establish a claim sounding in breach of contract, the Plaintiff must show that the parties exchanged mutual consideration based upon an offer which was accepted by the Defendant and that the defendant’s breach of failure to perform the contact resulted in the Plaintiffs damages. Gore v Flagstar Bank FSB, 474 Mich 1075; 711 NW2d 330 (2006).

A mere payment on the account is admission as to all fees, interest and costs included in the account which were incurred up to the time of the last payment. The Supreme court in Hiscock v Hiscovk, 257 Mich 16, 25; 240 NW 50; 78 (1932) stated.

A voluntary unqualified payment subsequently to the bar [of the statue of limitations] is the best evidence that the debtor does not claim his legal right, but on the contrary, intends to waive them and perform his moral obligation to the whole of the just dept. (Emphasis added).

ASSIGNEMENT

Plaintiff, as an assignee, is allowed to charge all interest and fees that are allowable on the original debt. As an assignee, the Plaintiff obtained the right to collect the debt and is subject to all the defenses of the debt. In re Forfeiture of $126, 191 Mich App 453, 456, 479 NW2d8 (1991). As the Defendant is neither a third-party beneficiary to the assignment between the Plaintiff and the predecessor in interest or a party to any contract assigning the debt, the defendant lacks sanding to raise any defenses to that assignment – beyond the necessary proof that the Plaintiff is the owner of the account. Baraga Co v Stated Tax Comm etc….

continued on next page..

Edited by Somewhat Confused

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ARGUMENT

THERE IS REMAINS NO GENUINE ISSUE AS TO ANY MATERIAL FACT – PLAINTIFF IS ENTITLED TO SUMMARY DISPOSITION AS A MATTER OF LAW

The attached proofs demonstrate that the defendant is liable on the account for the amount prayed for in the Complaint. The statements were sent in the Defendant‘s name to an address the Plaintiff has associated with the Defendant. If this Court finds that the Defendant did in fact accept mailings at the address on the statements, this Court must presume that the Defendant received those statements. Stacey v Snakovich, 19 Mich App 688; 173 NW2d 255 (1969).

The Plaintiff has no records of any written, valid and contemporaneous objections being received on the account despite the fact that statement went to an address that Plaintiff has associated with the Defendant. To be a contemporaneous objection, the Defendant would have to provide proof that the Defendant objected to some item or calculation on the account with 60-days after the statement date. 15 USC 1666. This would include the imposition of any cost, fee or application of interest,

Eventually, sufficient payments were not received on the account and the account went into default. The defendant, through use or authorized use of the account, became bound by its term. MCL 445.862(a).

Plaintiff’s review of his matter reveals the following:

1. Plaintiff has no record of any written, valid and contemporaneous objection, pursuant to 15 USC 1666, to any outstanding balance, charge or fee (including the finance charges being applied to the account).

2. Plaintiff has no record of any written, valid and contemporaneous objection, pursuant to 15 USC 1666, regarding any charges or computations on the account.

3. Plaintiff as no record of written, valid and contemporaneous allegation of fraud or misapplication of funds, pursuant to 15 USC 1666, on the account.

Based upon the foregoing, there remains no genuine issue as to any material fact and Plaintiff seeks a finding that Defendant remains liable on the subject charge account in the amount of xxxx, plus interest and costs. Pursuant to MCR 2.116(G)(4), in order to defeat this motion, Defendant must come forth with specific material facts which would permit this matter to proceed to the trier of fact. Defendant may not simply raise hypothetical arguments or rely upon the general denials contained in the pleadings MCR 2.116(G)(4).

For the reasons stated above, there remains no genuine issue as to any material fact and Plaintiff is entitled to entry of judgment against Defendant in the amount prayed for in Plaintiff’s complaint.

Wherefore, Plaintiff respectfully requests that this Honorable Court grant its Motion for Summary Disposition and enter judgment in favor of Plaintiff an against Defendant in the amount of xxxx, plus all applicable costs and interest.

OMG this lawyer really slammed me with all this!

Edited by Somewhat Confused

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On the (7th) page the credit line & statement name has now changed to:

Washington Mutual Card Service (10/05 through 06/07) in the important message field it states that my account is now Closed (on 10/05 statement) doesn’t say who closed it or why.

They don't show any charges or payments before the 10/05 statement that informed you the account was closed?

Is the OC reporting on your CR?

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Glad to see you BV80 :)++ - the ones prior to the name change does not reflect any charges (none of the copied statements shows any charges) only finance charges and payments that were made on the account.

I did pull my trw and unfortunately it is there - it says charge off, acct transferred to another office, it also shows closed by Consumer, last paid 8/07. Oddly in looking over all these copied statements it shows the last time a payment was made was 11/06 - so from 12/06 to 8/07 there were no payments made just finance charges etc... not looking good for me is it.

.

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Glad to see you BV80 :)++ - the ones prior to the name change does not reflect any charges (none of the copied statements shows any charges) only finance charges and payments that were made on the account.

I did pull my trw and unfortunately it is there - it says charge off, acct transferred to another office, it also shows closed by Consumer, last paid 8/07. Oddly in looking over all these copied statements it shows the last time a payment was made was 11/06 - so from 12/06 to 8/07 there were no payments made just finance charges etc... not looking good for me is it.

.

I asked about the 10/05 statement hoping you had not made any payments after that. I assume you actually did make a payment in 11/06?

In one of your posts on another thread, you posted the info from your Equifax report. That one showed "last reported delinquencies" as 3/07. Then, "balance date" as 8/07. Obviously things are not being reported accurately.

Considering Chase can't seem to get their stories straight with the CRAs, I'd get copies of my bank statements from 10/06 to 12/06 to see if one of them reflects the 11/06 payment.

Did the JDB send a bill of sale for the account from Chase to JDB?

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Yes it does show a payment was made. Correct, that info is what appears on my TRW but in looking at the statments she sent me the information being reported is not accurate.

Did the JDB send a bill of sale for the account from Chase to JDB?

I did not see anything that says or reflects Bill of Sale - the only thing that they gave to me from JPMORGANChase was a copy of said "Business Records Certification". Which the letter basically states that the enclosed records are true and correct copy of the original documents maintained by Chase Bank in the ordinary course of business & that the original records were created at or around the time of the actual transactions.

Signed Subpoena Analyst.

I had forgotten to add this in... last page after statement was Exhibit #2;

AFFIDAVIT

1. A rep from Port swears that the amount I owe is correct.

2. That it is being pursued by Port successor in interest of Washngtn.

3. I am duly qualifed etc..

It was signed & Dated Aug 24,2010

By the way it appears that is the same avidavit that is attached to my summoms and complaint which was filed Oct 15, 2010.

Edited by Somewhat Confused

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You need to start preparing your Opposition to Plaintiff's Motion for Summary Judgment. Check your rules to find out the time limit for filing the Opposition.

A Bill of Sale might also be titled "Assignment of Account". Whatever the title, it must show that Port. purchased accounts from Chase.

Since Port. has not provided a Bill of Sale proving, not only have they not proven they own your account, they haven't proven they bought anything from Chase.

This is just an idea. Since they haven't proven they bought anything at all from Chase, I'm wondering if you can Motion to Strike the affidavit from the supposed Chase "analyst". No proof of a purchase from Chase...no proof the affidavit is from a Chase employee.

Also, if there's no proof they bought any account, much less yours, there's no proof the statements are true and accurate.

The affidavit from Portfolio states they are successor in interest of WAMU. If you don't mind, could you post the entire body of the affidavit? If you don't feel comfortable doing so on the boards, you could PM me. Chase bought WAMU in 2008. I'd just like to see exactly what Portfolio stated.

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No prob I hope this is what you meant.

CITY AND STATE OF NORFOLK VA 23502

AFFIDAVIT

After first being sworn upon oath, T.Brusely, deposes and states as follows:

1. I hereby certify that I am an authorized representative of Port. I further state that the amount due to the aforesaid company by (ME) account number xxxxx, as of April 10, 2010, is $xxxxx, plus interest at the contract rate of 5% over and above all legal counterclaims.

2. This action is pursued by Port, AS SUCCESSOR IN INTEREST OF Wasngtn Mtl Bnk.

3. I am duly qualified and competent to testify about the matters state herein and authorized to make this affidavit. I have access to records of this account, and testify that the amount of the claim is just and true to the best of my personal knowledge. All offsets, payments and credits have been allowed.

Further, Deponent sayeth not.

Dated – Aug 24, 2010

Signed by the above person name (Employee of Port)

The following affidavit sworn to and subscribed before me this day Aug 24, 2010

Signed by a Notary Public

This communication is from a debt collector and is an attempt to collect a debt.

Any information obtained will be used for that purpose.

Opposition to Plaintiff's Motion for Summary Judgment

Is there a template for something like that?

It states on the pre-trial order that;

3. All motions, dispositive or otherwise, must be filed with the court by Oct 26, 2011.

4. Responces to motions must be filed by Nov 16, 2011

A Bill of Sale might also be titled "Assignment of Account". Whatever the title, it must show that Port. purchased accounts from Chase.

There is a page that says "ASSIGNMENT" but nothing that shows a bill of sale from Chase/Prov/Wsngtn to Port.

ASSIGNEMENT

Plaintiff, as an assignee, is allowed to charge all interest and fees that are allowable on the original debt. As an assignee, the Plaintiff obtained the right to collect the debt and is subject to all the defenses of the debt. In re Forfeiture of $126, 191 Mich App 453, 456, 479 NW2d8 (1991). As the Defendant is neither a third-party beneficiary to the assignment between the Plaintiff and the predecessor in interest or a party to any contract assigning the debt, the defendant lacks sanding to raise any defenses to that assignment – beyond the necessary proof that the Plaintiff is the owner of the account. Baraga Co v Stated Tax Comm etc….

Edited by Somewhat Confused

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or any other account data just 2 billing statements. I would subpoena the people who sold them the account because this would break evidence chain. It seems to me they subpoenaed records from chase/ or made them up. I would start to gather the info for the chain of assignment.

subpoena the sellers of the account for all documents from the account.

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Plaintiff, as an assignee, is allowed to charge all interest and fees that are allowable on the original debt. As an assignee, the Plaintiff obtained the right to collect the debt and is subject to all the defenses of the debt. In re Forfeiture of $126, 191 Mich App 453, 456, 479 NW2d8 (1991). As the Defendant is neither a third-party beneficiary to the assignment between the Plaintiff and the predecessor in interest or a party to any contract assigning the debt, the defendant lacks sanding to raise any defenses to that assignment – beyond the necessary proof that the Plaintiff is the owner of the account. Baraga Co v Stated Tax Comm etc….

I think that document is their attempt to prove they have the right to charge interest and fees on the account. It's not proof they purchased the account from Chase.

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or any other account data just 2 billing statements. I would subpoena the people who sold them the account because this would break evidence chain. It seems to me they subpoenaed records from chase/ or made them up. I would start to gather the info for the chain of assignment.

subpoena the sellers of the account for all documents from the account.

I don't think they subpoenaed anything. From what the OP has stated, there's not even a bill of sale. You're correct that so far, there is no chain of assignment.

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Seadragon

Subpoena the people who sold them the account.

Since it is stated that it is being pursued by Port as Successor in interest of Washngtn is that who I should subpoena (Washngtn). And in doing so I am to request for any records showing the sale of the account from them to Port? This should also be filed and done through the court house?

BV80, thats a good thing then that there is no actual bill of sale. Also I read in another post about dates of the Affidavit and filing that it should be within so many days. My dates are way beyond the dates isn't that also an infraction of sorts?

Edited by Somewhat Confused

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Seadragon

Since it is stated that it is being pursued by Port as Successor in interest of Washngtn is that who I should subpoena (Washngtn). And in doing so I am to request for any records showing the sale of the account from them to Port? This should also be filed and done through the court house?

BV80, thats a good thing then that there is no actual bill of sale. Also I read in another post about dates of the Affidavit and filing that it should be within so many days. My dates are way beyond the dates isn't that also an infraction of sorts?

Regarding a subpoena, you would subpeoena the actual person. WAMU no longer exists.

If I remember correctly, an affidavit must be filed within 10 days of the Complaint. Your court rules will have that information.

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I should subpoena Chase then.

Ten days - from the looks of this they did not do it within that time frame. Affidavit was filed in Aug 24,10 and is it correct that I look at when they filed the Summons & Complaint (which was the first one says Oct 15, 2010 the second states 2/1/2011).

Edited by Somewhat Confused

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MICHIGAN COURT RULES

Rule 2.116 Summary Disposition

(A) Judgment on Stipulated Facts. (1) The parties to a civil action may submit an agreed-upon stipulation of facts to the court.

(2) If the parties have stipulated to facts sufficient to enable the court to render judgment in the action, the court shall do so.

(B) Motion.

(1) A party may move for dismissal of or judgment on all or part of a claim in accordance with this rule. A party against whom a defense is asserted may move under this rule for summary disposition of the defense. A request for dismissal without prejudice under MCL 600.2912c must be made by motion under MCR 2.116 and MCR 2.119.

(2) A motion under this rule may be filed at any time consistent with subrule (D) and subrule (G)(1), but the hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.

© Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(1) The court lacks jurisdiction over the person or property.

(2) The process issued in the action was insufficient.

(3) The service of process was insufficient.

(4) The court lacks jurisdiction of the subject matter.

(5) The party asserting the claim lacks the legal capacity to sue.

(6) Another action has been initiated between the same parties involving the same claim.

(7) The claim is barred because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

(8) The opposing party has failed to state a claim on which relief can be granted.

(9) The opposing party 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.

(D) Time to Raise Defenses and Objections. The grounds listed in subrule © must be raised as follows:

(1) The grounds listed in subrule ©(1), (2), and (3) must be raised in a party's first motion under this rule or in the party's responsive pleading, whichever is filed first, or they are waived.

(2) The grounds listed in subrule ©(5), (6), and (7) must be raised in a party's responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party's first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

(3) The grounds listed in subrule ©(4), (8), (9), and (10) may be raised at any time.

(E) Consolidation; Successive Motions.

(1) A party may combine in a single motion as many defenses or objections as the party has based on any of the grounds enumerated in this rule.

(2) No defense or objection is waived by being joined with one or more other defenses or objections.

(3) A party may file more than one motion under this rule, subject to the provisions of subrule (F).

(F) 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.

(G) Affidavits; Hearing.

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

(a) Unless a different period is set by the court,

(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and

(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.

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

© A copy of a motion or response (including brief and any affidavits) 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.

(2) Except as to a motion based on subrule ©(8) or (9), affidavits, depositions, admissions, or other documentary evidence may be submitted by a party to support or oppose the grounds asserted in the motion.

(3) Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion are required

(a) when the grounds asserted do not appear on the face of the pleadings, or

(B) when judgment is sought based on subrule ©(10).

(4) A motion under subrule ©(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule ©(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.

(5) The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule ©(1)-(7) or (10). Only the pleadings may be considered when the motion is based on subrule ©(8) or (9).

(6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule ©(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.

(H) Affidavits Unavailable.

(1) A party may show by affidavit that the facts necessary to support the party's position cannot be presented because the facts are known only to persons whose affidavits the party cannot procure. The affidavit must

(a) name these persons and state why their testimony cannot be procured, and

(B) state the nature of the probable testimony of these persons and the reason for the party's belief that these persons would testify to those facts.

(2) When this kind of affidavit is filed, the court may enter an appropriate order, including an order

(a) denying the motion, or

(B) allowing additional time to permit the affidavit to be supported by further affidavits, or by depositions, answers to interrogatories, or other discovery.

(I) Disposition by Court; Immediate Trial.

(1) If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay.

(2) If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party.

(3) A court may, under proper circumstances, order immediate trial to resolve any disputed issue of fact, and judgment may be entered forthwith if the proofs show that a party is entitled to judgment on the facts as determined by the court. An immediate trial may be ordered if the grounds asserted are based on subrules ©(1) through ©(6), or if the motion is based on subrule ©(7) and a jury trial as of right has not been demanded on or before the date set for hearing. If the motion is based on subrule ©(7) and a jury trial has been demanded, the court may order immediate trial, but must afford the parties a jury trial as to issues raised by the motion as to which there is a right to trial by jury.

(4) The court may postpone until trial the hearing and decision on a matter involving disputed issues of fact brought before it under this rule.

(5) If the grounds asserted are based on subrule ©(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified.

(J) Motion Denied; Case Not Fully Adjudicated on Motion.

(1) If a motion under this rule is denied, or if the decision does not dispose of the entire action or grant all the relief demanded, the action must proceed to final judgment. The court may:

(a) set the time for further pleadings or amendments required;

(B) examine the evidence before it and, by questioning the attorneys, ascertain what material facts are without substantial controversy, including the extent to which damages are not disputed; and

© set the date on which all discovery must be completed.

(2) A party aggrieved by a decision of the court entered under this rule may:

(a) seek interlocutory leave to appeal as provided for by these rules;

(B) claim an immediate appeal as of right if the judgment entered by the court constitutes a final judgment under MCR 2.604(B); or

© proceed to final judgment and raise errors of the court committed under this rule in an appeal taken from final judgment.

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This is regarding the "Business Records Certification" that was signed by a B. Henderson. According to the MI Rules of Evidence 902(11):

(11) Certified records of regularly conducted activity. The original or a duplicate of a record, whether domestic or foreign, of regularly conducted business activity that would be admissible under rule 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person certifying that...

That document was not made under oath. Also, the account was sold before Chase purchased WAMU. How could a Chase employee certify records that were not created by Chase and supposedly belong to an account that was sold before Chase took over?

I don't know what you're allowed to do regarding a Motion to Strike. If allowed, you could motion to strike the statements and the "Business Records Certification". Hopefully some MI posters will have that information.

Edited by BV80

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Regarding the "Business Records Certification". I believe the person is claiming to be a "supoena analyst"...whatever that is.

Another question...would more of a signature than just "B. Henderson" be required on such a document?

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Hi BV, I went to the Michigan site and filled in my own Subpoena for "order to produce" and I am sending it to the same person (B. Henderson) & location they did - I asked for what they had typed on theirs.

Please provide any and all documentation such a but not limited to the application, billing, the application, billing statement, terms & conditions, sales slips and copies of payments associated solely with WAMU account number #xxx for ME (ssn xxx-xx-xxxx) from 2/23/1999 to 6/29/07, along with certification of said documents. Also please provide an affidavit of sale from Chase to Portfolio Recovery Assoc, LLC (including name of debtor & account number). Please provide an affidavit of Chase authenticating the documents you have provided pursuant to this subpoena

I am guessing you may be right in what you said how can they have these records. I am thinking that they (Chase) had no information to give them and these "said" copies they have must be what the had to begin with - because if you recall when I went to court this attorney had a huge packet and she was going through a stack of papers and reading off dates, payment amounts etc... to jog my memory.

I will be going to the Court tomorrow to file this subpoena so I want to make sure that I have a list with me of all the things I should be doing & need to get together.

Edited by Somewhat Confused

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Hi BV, I went to the Michigan site and filled in my own Subpoena for "order to produce" and I am sending it to the same person (B. Henderson) & location they did - I asked for what they had typed on theirs.

I am guessing you may be right in what you said how can they have these records. I am thinking that they (Chase) had no information to give them and these "said" copies they have must be what the had to begin with - because if you recall when I went to court this attorney had a huge packet and she was going through a stack of papers and reading off dates, payment amounts etc... to jog my memory.

I will be going to the Court tomorrow to file this subpoena so I want to make sure that I have a list with me of all the things I should be doing & need to get together.

You're really being proactive. Way to go! You need to check your court rules to see if you have to let the attorney know you've sent a subpoena to produce records. I don't know if you have to or not, but you need to find out.

I understand what you're doing. You want to see if Chase really has documents, and if B. Henderson is real, etc. My only question would be, if you have to let them know you sent a subpoena, would it backfire on you if Chase sends you records?

Hopefully some others will respond with their opinions.

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On dinner break so thought I would quickly reply. BV your a good motivater & you have inspired me ;) And when I get home tonight I will look up if I have to send them one as they did send me a copy.

Either really you think maybe it will backfire - I cant see either way how it can hurt since its information pertaining to me and I am just verify that it is true. You know they never produced to me an affidavit of sale from Wash/ Chase to Port nor was there any documents or affidavits of Chase authenticating these documents (statements). I don't know I was thinking ahead of myself. Ok will be back later..

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Somewhat Confused, way to catch on to how to play their game. I beat Chase Bank, not a JDB who bought an old Chase account.

This was last year, Chase filed a suit against me. It was dismissed with prejudice in May 2011. It took about a year for things to play itself out.

I can tell you this, Chase could not produce a single shred of evidence against me and it was a legit debt. They submitted an affidavit that was created a month and a half before the summons. They did not attached any documentation to the complaint. Here was the other issue, when I pressed them for documents, their attorney flat out told me they did not have any. Then, they called me back to see if I would agree to dismiss.

If this is a JDB who bought a Chase account, chances are they will not have any documents from Chase. The JDB is trying to fake their way towards a judgment. IF they did get statements, the JDB would have to prove every transaction that took place was accurate, the finance charges were correct and still provide you with the terms of the agreement at the time of last use. They will not have any of this. You have already described that this JDB has not shown to you a single ounce of evidence with your name or account number yet.

Here are a few Michigan Rules to consider based upon your posts:

1) Under MCR 2.111(B)(1), the complaint lacks a statement of facts, without repetition or which the pleader and specific allegations necessary to inform the adverse party is called on to defend.

2) MCR 2.113(B), the written instrument needs to be attached to the complaint if it is not in the possession of the defendant or of public record.

3) MCL 600.2145 specifically states that a copy of said account, a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced.

4) Truth In Lending Act 15 U.S.C. 1643(B), for the Plaintiff has the burden of proof to show that all transactions were made or authorized by the Defendant and the interest and finance charges are correct.

5) The Plaintiff has failed to establish proof of ownership of the alleged account and has not proven a standing to sue. MCR 2.112(A)(2).

6) MCR 2.112 (J) - Laws of other Jurisdiction; Notice of Pleadings. A party intending to rely on or raise an issue concerning the laws of another state other than Michigan must give notice of that intention either in their pleadings or on written notice served during discovery.

7) The complaint violated the Statute of Frauds in order to prove a breach of contract, the agreement has to be in writing or show a record detailing the date and circumstances of the request for credit, Truth In Lending Act 15 U.S.C. 1642. The Plaintiff failed to comply with this requirement.

8) Under MCR 2.115(B), The court may strike all or part of a pleading not drawn in conformity with the Rules of Civil Procedure.

Hope this helps as well...As far as discovery and subpoenas read up on MCL Section 2.300 and MCL Section 2.506 for subpoenas. Since they did not answer your discovery, file a motion to compel discovery.

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