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My wife is getting sued by GE Money Bank - MOTION TO STRIKE EVIDENCE...Want Feedback

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STATE OF MICHIGAN

IN THE DISTRICT COURT FOR THE 41A JUDUCIAL COURT

GE MONEY BANK

Plaintiff,

v. Case No.

Defendant, Pro Se,

_________________________________________________________________

Meyer & Njus P.C.

_________________________________________________________________

DEFENDANT’S MOTION TO STRIKE EVIDENCE

Defendant, Pro Se, moves this Court to enter an order for the Court to strike all business records that the Plaintiff has and will produce in support of their claim and grant the Defendant other relief that the Court deems appropriate. This motion is based on MRE 103(a)(1), the attached brief in support, argument and memorandum of law is as follows

BRIEF IN SUPPORT

1) On or about July 10, 2011, The Plaintiff served a complaint and summons upon the Defendant via Certified Mail through the US Postal Service.

2) The Complaint had one alleged account statement dated July 2009 and was not accompanied by an affidavit submitted as (Exhibit A) in the Plaintiff’s complaint.

3) On or about August 5, 2011 the Defendant submitted an answer to the complaint stating that under MCR 2.113(F), the Defendant denied being in possession of the written instrument.

4) On September 13, 2011, this Court held a Pre-Trial Hearing, where the Court asked the Plaintiff if they will have witness to testify as a “Custodian of Record” at Trial, where the Plaintiff’s attorney said “Yes” they will, before the hearing in the hallway before the case was called during conversation with the Plaintiff’s attorney, the attorney claimed that the Plaintiff will not have a witness available for trial.

5) On September 16, 2011, the Defendant mailed to the Plaintiff via First Class US Postal Service, the “Defendant’s First Request For Production of Documents and Interrogatories”.

ARGUMENT

6) The Plaintiff failed to attach a timely affidavit and a copy of the alleged account agreement to the complaint to support the lone account billing statement in support of their claim. MCL 600.2145 specifically states that an affidavit along with the written instrument is to be attached to the complaint dated within 10 days of the complaint.

7) MCL 600.2145 acts as a basis to MRE 803(6)(7) where there needs to be a qualified witness or custodian that swears under oath that the records were kept during the regular course of business and the witness is knowledgeable on how the business records are kept.

8) The Plaintiff failed to abide by MCL 600.2131 that every written instrument maybe proved or acknowledged in the manner now provided by law and the affidavit of the proper officer endorsed thereon, shall entitle such instrument to be received in evidence on the trial of any action.

9) The Plaintiff failed to abide by MCL 600.2147 that a corporation may introduce evidence at trial or hearing before the court a reproduction of business records of the individual or institution prepared or entered in the regular course of business accompanied by a certificate or affidavit, if not, the original would be admissible as evidence, including an existing record and including, but not by way of limitation a check, bill, note, acceptance, or other type of commercial instrument.

10)The Plaintiff filed a reproduction on a business record without an affidavit and not the original.

11) The Plaintiff failed under MRE 902, to claim that the original or a duplicate record, whether domestic or foreign, of the conducted business activity that would be admissible under MRE 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person certifying that:

A) The record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters.

B) The record was kept in the course of the regularly conducted business activity.

C) It was the regular practice of the business activity to make the record.

12) The Plaintiff failed to abide by MCR 2.113(F)(1)(B), if a claim or defense is based on a written instrument, a copy of the instruments and all of it’s pertinent parts must be attached to pleading as an exhibit unless the instrument is a matter of public record or in the possession of the adverse party as the pleading states.

13) The Defendant denied being in possession of the written instrument as stated in the Defendant’s answer and therefore the Plaintiff is required to produce a written instrument.

MEMORANDUM OF LAW

The motion request is warranted by looking at (People vs. Vargo, 139 Mich App 573, 580; 362, NW2d 840 (1984)). In this case, the court rendered that for a business record be admissible under MRE 803(6), the proponent must have a qualified witness to testify or create an affidavit that the records were kept in the course of a regularly conducted business and how the witness is knowledgeable of the regular business records are kept.

CONCLUSION

For these reasons, Defendant requests that this court grant the Defendant’s Motion to Strike Evidence and order any other relief this Court deems appropriate by dismissing this case in it’s entirety with prejudice.

Edited by bmc100
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Here's some more Michigan case law to cite if they try to supply a bill of sale not showing the specific name or account number -

UNIFUND CCR PARTNERS v. RILEY Court of Appeals of Michigan (2010) Although plaintiff submitted a copy of a bill of sale executed by Citibank, it did not provide the portion of the assignment that indicated that this specific account was one of the accounts being assigned. Because the assignment occurred through the contract, absent evidence of the contract showing the specific assignment, the affidavit containing plaintiff’s employee’s bare assertion of the assignment is insufficient to establish factual support for plaintiff’s claim that it acquired defendant’s account by assignment.

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How about this?

"For a proper foundation to be established for the admission of [a] document as a business record, a qualified witness must establish that the record was kept in the course of a regularly conducted business activity and that it was the regular practice of such business activity to make that record. MRE 803(6). Knowledge of the business involved and its regular practices are necessary." People v Vargo, 139 Mich App 573, 580

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Are you saying that they did not provide an affidavit or sworn statement to authenticate the document as required in MRE 902(11)?

If so, here's some more case law:

"nsworn declarations are permitted to be used as evidence," but "only if subscribed. . . as true under penalty of perjury and dated." Bonds v. Cox, 20 F. 3d 697 - Court of Appeals, 6th Circuit 1994

Similarly, the unsworn statements of the two employees offered by defendants must be disregarded because a court may not consider unsworn statements when ruling on a motion for summary judgment. Dole v. Elliott Travel & Tours, Inc., 942 F. 2d 962 - Court of Appeals, 6th Circuit 1991

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To answer your first question. They Plaintiff did not provide an affidavit. The sworn statement that was notarized in the complaint by the attorney.

The amount due Plaintiff over and above all legal counterclaims and setoffs is $4,410.76, all of which appears in the account billing statement attached hereto as Exhibit A and by this reference made a part hereof.

There wasn't a sworn statement to authenticate the document, when the statement shows a different amount than the amount they swore to with no other documentation to support it.

I am going to keep those two case laws in case we have to defend an MSJ. I want to use this motion as a worst case to put it on record for a later date that there was an objection made the the business records submitted in their case.

If we do not object, then the court will just award them judgment. Once I object and best case the judge agrees to strike, then GE does not have a case. Then, I have a material objection to the MSJ.

Case Law for MSJ on account stated basically as it stands allows a plaintiff to be awarded summary judgment if the Plaintiff can show that there has been no prior objection made to the amount that the Plaintiff is claiming as due and owing. As long as the Plaintiff has records to back that claim. If I can strike the records, then no chance at summary judgment without first answering my production and interrogatory requests.

Edited by bmc100
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I found this case on Google Scholar. It is an assault case that references MRE 902(11)(A)-© and MRE 803(6) regarding medical records.

People vs. Seiba, Mich Court of Appeals (2010); Unpublished Opinion. This is a case based upon the admissibility of medical records based upon MRE 902(11)(A)(B)(C ), the prosecutor did not offer the testimony of a custodian or qualified witness, but instead relied on a certificate from a Donna Cyr, the hospital medical records custodian, which provided the records were true copies of original medical records. Cyr’s certification did not indicate that the records were kept in the course of regularly conducted business activity, or that is was the regular practice of the hospital to create such records. Thus, the certificate does not comply with MRE 902(11)(A)-©. According, Plaintiff could not rely upon the certificate to satisfy the requirement in MRE 803(6) that the foundational component be “shown by certification that complies with a rule promulgated by the Supreme Court”.

An error in the admission of evidence does not require a reversal unless it is more probable than not that a different outcome would have resulted.

Edited by bmc100
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Here is my updated motion to strike that I am filing tomorrow afternoon:

STATE OF MICHIGAN

IN THE DISTRICT COURT FOR THE 41A JUDUCIAL COURT

GE MONEY BANK

Plaintiff,

v. Case No.

Defendant, Pro Se,

__________________________________________________________________

Meyer & Njus P.C.

__________________________________________________________________

DEFENDANT’S MOTION TO STRIKE EVIDENCE

Defendant, Pro Se, moves this Court to enter an order for the Court to strike all business records that the Plaintiff has and will produce in support of their claim and grant the Defendant other relief that the Court deems appropriate. This motion is based on MRE 103(a)(1), brief in support, argument and the attached memorandum of law states as follows:

BRIEF IN SUPPORT

1) On or about July 10, 2011, The Plaintiff served a complaint and summons upon the Defendant, via Certified Mail through the US Postal Service.

2) The Complaint had one alleged account statement dated July 2009 and was not accompanied by an affidavit submitted as (Exhibit A) in the Plaintiff’s complaint.

3) On or about August 5, 2011 the Defendant submitted an answer to the complaint stating that under MCL 600.2145 and MCR 2.113(F)(1)(B), the Plaintiff failed to attach an affidavit and the written instrument to the complaint to support the alleged statement, the Defendant filed an affidavit of denial regarding all claims that may be made now and into the future.

4) On September 13, 2011, this Court held a Pre-Trial Hearing, the Court asked the Plaintiff if they will have witness to testify as a “Custodian of Record” at Trial, where the Plaintiff’s attorney said “Yes” they will, though “the Plaintiff’s attorney claimed that the Plaintiff will not have a witness available for trial” to the Defendant during a pre-trial conversation.

5) On September 16, 2011, the Defendant mailed to the Plaintiff via First Class US Postal Service, the “Defendant’s First Request For Production of Documents and Interrogatories”.

ARGUMENT

6) The Plaintiff failed to attach a timely affidavit and a copy of the alleged account agreement to the complaint to support the lone account billing statement in support of their claim. MCL 600.2145 specifically states that an affidavit along with the written instrument is to be attached to the complaint dated within 10 days of the summons.

7) The Plaintiff failed to abide by MRE 803(6), there needs to be a qualified witness or custodian that swears under oath that the records were kept during the regular course of business and the witness is knowledgeable on how the business records are kept. Please see the first two case laws under Memorandum or Law.

8) The Plaintiff failed to abide by MCL 600.2131 that every written instrument maybe proved or acknowledged in the manner now provided by law and the affidavit of the proper officer endorsed thereon, shall entitle such instrument to be received in evidence on the trial of any action.

9) The Plaintiff failed to abide by MRE 902(11)(A)(B)(C ), to claim that the original or a duplicate record, whether domestic or foreign, of the conducted business activity that would be admissible under MRE 803(6), if accompanied by a written declaration under oath by its custodian or other qualified person certifying that:

A) The record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters.

B) The record was kept in the course of the regularly conducted business activity.

C) It was the regular practice of the business activity to make the record.

10) The Plaintiff failed to comply with MRE 902(11), there was not a written declaration under oath by a custodian of record that stated any of the requirements as (A) - (C ) simply lays out. Please see the third (3) case law under Memorandum of Law.

11) The Plaintiff failed to abide by MCR 2.113(F)(1)(B), if a claim or defense is based on a written instrument, a copy of the instruments and all of it’s pertinent parts must be attached to pleading as an exhibit unless the instrument is a matter of public record or in the possession of the adverse party as the pleading states.

12) The Defendant denied being in possession of the written instrument as stated in the Defendant’s answer and therefore the Plaintiff is required to produce a written instrument, without the agreement, the Plaintiff has no foundation to their case.

MEMORANDUM OF LAW

13) People vs. Vargo, 139 Mich App 573, 580; 362, NW2d 840 (1984). For a proper foundation to be established for the admission of [a] document as a business record, a qualified witness must establish that the record was kept in the course of a regularly conducted business activity and that it was the regular practice of such business activity to make that record. MRE 803(6). Knowledge of the business involved and its regular practices are necessary.

14) Price vs. Long Realty, Inc., 199 Mich app 461, 467-468; 502 NW2d 337 (1993). The court ruled that the proponent must present an adequate foundation for admission under MRE 803(6) by demonstrating that the records were prepared in the course of regularly conducted business activity.

15) People vs. Seiba, Mich Court of Appeals (2010); Unpublished Opinion. This is a case based upon the admissibility of medical records in an assault case based upon MRE 902(11)(A)(B)(C ), the prosecutor did not offer the testimony of a custodian or qualified witness, but instead relied on a certificate from a Donna Cyr, the hospital medical records custodian, which provided the records were true copies of original medical records. Cyr’s certification did not indicate that the records were kept in the course of regularly conducted business activity, or that is was the regular practice of the hospital to create such records. Thus, the certificate does not comply with MRE 902(11)(A)-(C ). Accordingly, Plaintiff could not rely upon the certificate to satisfy the requirement in MRE 803(6) that the foundational component to be “shown by certification that complies with a rule promulgated by the Supreme Court”.

CONCLUSION

The Plaintiff in this case has failed to meet even the most basic requirements of the referenced laws, rules of procedure and evidence in their complaint, without an affidavit or written declaration under oath, the Defendant is rightfully entitled to this court granting it’s motion to strike.

For these reasons, Defendant requests that this Court grant the Defendant’s Motion to Strike Evidence and order any other relief this Court deems appropriate by dismissing this case in it’s entirety with prejudice.

Respectfully Submitted,

Defendant, Pro Se

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I am filing the motion to strike today...Thank you everyone for helping to get clarification around the laws and rules regarding evidence. Thank you in helping me find some case law to back it. Now if I can get my wife to understand this so she can present it in court...I will be thrilled.

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I am filing the motion to strike today...Thank you everyone for helping to get clarification around the laws and rules regarding evidence. Thank you in helping me find some case law to back it. Now if I can get my wife to understand this so she can present it in court...I will be thrilled.

What is your wife having trouble understanding?

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BV,

She does not want to take the time to understand it. She wants someone else to do it for her. She told me, are you going to explain this in court for me? I told her, I cannot do that cause I am not named in the case. You have to understand things and be able to explain them to the judge.

Then, she said I am not going to sign it cause I do not understand it. I told her if you do not take the time to understand this, then this attorney is going to file a MSJ and win.

Then she goes what will happen?

Well, if I file this you will get a court date to explain why the judge should strike their business records. If he agrees with you, then all of the billing statements they will try to use as their evidence for summary judgment will be invalid or the court will not allow them to be admitted.

I explained to her that unless the Plaintiff submits a sworn statement or affidavit with the complaint, the account statement the attorney attached to the complaint is invalid. But you have to defend yourself, the judge is just a mediator. You have to bring it up to the judge what rules or laws the Plaintiff is not following.

I then explained Evidence Rules. I told her the attorney did not obtain the proper the sworn affidavit from a "Custodian of Records" that there needs to be a qualified witness or custodian that swears under oath that the records were kept during the regular course of business and the witness is knowledgeable on how the business records are kept. You have to get that account statement stricken from the records of the court.

She said will that change my next court hearing? I told her no. Will the judge get upset that he has to see us before the next court date/trial? No, he will not be upset. We just need to submit this motion and you will get a court date and do it before the Plaintiff tries to file a motion of summary judgment. She said, do not file anything yet until I understand it. I told her, let me file it and then I will explain it to you. I will also write out what to say to explain your position.

She said ok...knowing her, she will not take the time to learn. She will complain about it and do nothing..She has a MBA and sometimes I wonder if she cheated her way through school.

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If it were me, I'd make the explanations a little more basic.

Use examples. For instance, if someone came up to you and handed you a copy of one of your credit card statements and said, "I bought this account from XXXXX cc company. You now owe me this balance." Would you pay that stranger the money? No.

1. You don't know that the stranger bought the account. What proof does he have that he owns your account?

2. You don't know where he got that statement. What if he made it himself? What if he bought some accounts, and your statement was in the bundle of accounts by mistake?

He can't say it's a real copy of an account statement from the OC, because he doesn't work for the OC. He doesn't have access to the OC's records.

There's no affidavit or a sworn statement from the original creditor stating that the cc statement is a true copy of a statement they created for your account. As a result, you have no idea if that cc statement is a true and accurate copy of a statement from your account. Without any verification from the OC, all you have is his word that the cc statement is real.

3. If he hands you an affidavit swearing that he bought your account and the cc statement is real, he still has to have proof of what he says. An affidavit with no evidence to back it up is nothing but his word. An affidavit with no verification from the OC stating the records are real is nothing but his word. His words, without any proof, are hearsay.

Something like that.

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She said ok...knowing her, she will not take the time to learn. She will complain about it and do nothing.

Well she is in the best of company. That is what the great majority do. That is what the creditors assume and hope for. The huff and puff without the actual blowing the house down.

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bmc100, be careful. If your DW is not willing to learn the material she could end up getting you in trouble. I don't know about your state, but in my state it is illegal for a non-party spouse to assist with a case.

When my DW had her case the attorney, the mediator, and even the "judge" all asked her repeatedly who wrote the documents (answer, affirmative defenses, counter claims, motions, affidavits, etc.) for her. They were trying to get her to admit that someone helped her because it is illegal in my state for a "non-lawyer" to write legal documents for anyone but themselves and that law applies to spouses.

If my DW had answered anything except "I wrote them" then the documents would have been stricken and she would have been out of luck. Also anyone who wrote the documents for her would have been facing a year in jail and a stiff fine, although I'm not sure how often the Bar Assoc. pushes for jail time, I know they push for heavy fines all the time.

It sucks, I know.

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Public Resources: Consumer Tips & Alerts

Seems like a gray area, as it is here in CT. They mention the preparation of documents for a fee. Paralegals can do this, but they can't advise you as to what to include. I don't see anything that forbids free advice. Bottom line is don't tell them, they'll never be able to prove it anyway. You can always say you found stuff on line and copied it. You should have an understanding of what you are submitting, though, as you may eventually have to argue it in front of a judge; besides; you want to win, don't you? Get interested.

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I am looking at this bare-bones complaint and trying to figure out if I should challenge the complaint itself and have the court rule that they have to amend the complaint and hope they just give up.

Or allow the complaint to stand and as they try to submit evidence, motion to strike it when they submit it with no affidavit or sworn testimony.

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I am looking at this bare-bones complaint and trying to figure out if I should challenge the complaint itself and have the court rule that they have to amend the complaint and hope they just give up.

Or allow the complaint to stand and as they try to submit evidence, motion to strike it when they submit it with no affidavit or sworn testimony.

Which would be the better option for your wife if she has to speak for herself in court?

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I am looking at this bare-bones complaint and trying to figure out if I should challenge the complaint itself and have the court rule that they have to amend the complaint and hope they just give up.

Or allow the complaint to stand and as they try to submit evidence, motion to strike it when they submit it with no affidavit or sworn testimony.

Complaints aren't usually "challenged." They are answered. The answer should specifically admit or deny the allegations therein. if it is some crap some paralegal wrote up and you can't understand what the hell the thing says, say so. Here, they use a "request to revise" in which you ask the other guy to make the thing understandable. It is not your responsibility to guess at what the plaintiff means. Otherwise, just deny the allegation as written. Your rules of procedure will tell you how to do this. It's unlikely any lawyer will "give up" against an inexperienced pro se litigant. They'll push it....you have to know how to push back and make them sorry they sued you.

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legaleagle,

If it was me having to defend this lawsuit, I know how to play the chess game. I need to simplify things for her. The only good thing, is that the attorney and I have had a chance to talk and they know that they are not dealing with an inexperienced spouse. The attorney knows I wont let them get away with anything. I already threatened them to file a motion to have the case dismissed cause it does not comply with rules of civil procedure.

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My wife received her non-jury trial notice in the mail today for mid January. The attorney did not even try to motion for summary judgement.

She lucked out, since she did not do as I instructed her to in dealing with them.

I need some feedback..I know that the attorney will not have a witness from the Plaintiff to testify...I will not be available to be there for the next court date. Without a witness to authenticate any documents or statements that they may have, the case should be dismissed...So, I need to prep her on how to respond. There wasnt an affidavit attached to the complaint. It will be her word against the attorney's word.

Any thoughts on how to get prepped for this?

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