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My wife is getting sued by GE Money Bank - Going to Trial - Want feedback (MICHIGAN


bmc100
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Alright...my wife got her notice for trial from the court on Wednesday. I am surprised the attorney did not file for Motion of Summary Disposition. It shows that they do not have the evidence to submit to court to receive their summary judgment.

Here is a quick rundown as a refresher:

1) Served with Summons and Complaint in July. The complaint did not have a credit card agreement or affidavit from Plaintiff, just one copy of a credit card Statement.

2) Submitted Answer - denied everything, submitted defenses and affidavit of denial.

3) She had a pre-trial conference in September

4) two days after Pre-trial we delivered discovery to Plaintiff..I mailed first class and emailed it to the attorney.

5) Plaintiff never answered any of the production and Interrogatory requests.

6) Plaintiff never served discovery on my wife.

Now there is a trial set for January 17, 2012. I emailed the attorney on the case asking if they would agree to dismiss..they said they are going forward with trial. I responded back informing them we will be submitting a Motion to Strike Evidence prior to trial since they did not respond to discovery and did not have any written testimony or affidavits from a "custodian of records" from the Plaintiff.

What else should I be aware of or do prior to trial?

I can prepare everything for her to go to trial. Show her how to object when they enter evidence...etc.

Thank you

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Just in case they don't dismiss before the trial, I'd find applicable state case law concerning affidavits and evidence.

"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

"Our review of the record in the present case reveals that the plaintiffs failed to lay an adequate foundation for admission under MRE 803(6) because there was no testimony that the records were prepared in the course of a regularly conducted business activity." Price v. Long Realty, Inc, 502 NW 2d 337 - Mich: Court of Appeals 1993

I'd also write down the rules regarding evidence for your wife and explain them to her. Business records can only be admitted under 803(6) if there's a live witness or an affidavit making the records self-authenticating. If there is a live witness to testify, records can be admitted under 803(6). If they don't have a witness, the evidence must be self-authenticating according to 902(11) in order to be admissible. If there's no live witness, and the evidence doesn't comply with 902(11), it is not subject to the exceptions in 803(6).

902(11) Rule 902 Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

(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

(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; and

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

A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

If they don't have a valid assignment:

"`In determining whether an assignment has been made, the question is one of intent. A written agreement assigning a subject matter must manifest the assignor's intent to transfer the subject matter clearly and unconditionally to the assignee." 'Burkhardt v. Bailey, 680 NW 2d 453 - Mich: Court of Appeals 2004 quoting Brown v. Indiana Nat'l Bank, 476 N.E.2d 888, 894 (Ind.App., 1985)

"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". Unifund CCR Partners v. Riley, Mich: Court of Appeals 2010 (unpublished)

If they can't prove ownership, they don't have standing to sue:

"However, in order to having standing, there must be a showing that plaintiffs have a legally protected interest that is in jeopardy of being adversely affected." Trout Unlimited, Muskegon-White River Chapter v White Cloud, 195 Mich App 343, 348; 489 NW2d 188 (1992).

"The requirement that a party bringing a suit have standing is used to insure that only those who have a substantial interest in a dispute will be allowed to come into court to complain." St John's — St Luke Evangelical Church, United Church of Christ v National Bank of Detroit, 92 Mich App 1; 283 NW2d 852 (1979).

Edited by BV80
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I used your first two case laws in the Motion to Strike. This is an OC. We can still see if they have proof of ownership.

MRE 803 and 902 does not differentiate between an OC and a JDB...it requires that all evidence be authenticated.

Now up to this point, the Plaintiff has not shown any affidavits, written depositions or certificate of authentication from the OC...so everything is hearsay up to this point.

The Attorney for the Plaintiff already said that they will not have a witness from the OC.

I just need to get my wife prepped to object as they try to admit evidence.

Edited by bmc100
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I used your first two case laws in the Motion to Strike. This is an OC. We can still see if they have proof of ownership.

MRE 803 and 902 do not differentiate between and OC and a JDB...it requires that all evidence be authenticated.

Now up to this point, the Plaintiff has not shown any affidavits, written depositions or certificate of authentication from the OC...so everything is hearsay up to this point.

The Attorney for the Plaintiff already said that they will not have a witness from the OC.

I just need to get my wife prepped to object as they try to admit evidence.

I didn't realize this is the OC. More than likely, an OC won't be required to prove ownership, so the assignment and standing won't apply. But their evidence still has to be authenticated to be admissible. The rules are specific. Don't back down on that.

How about this case law for evidence:

"To admit a document containing hearsay statements or conclusions based on hearsay evidence, the party must establish that such statements or documents are also admissible." Merrow v Bofferding, 458 Mich 617, 629

"Because plaintiff has not provided an affidavitor deposition testimony that identifies the documents, this Court cannot determine that the documents are what plaintiff purports them to be. Accordingly, these unauthenticated documents cannot support plaintiff’s claim." STATE BUSINESS BROKERS, INC.v. H & K ASSOCIATES, INC. Mich: Court of Appeals 2004 (unpublished)

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Here is a quick rundown as a refresher:

4) two days after Pre-trial we delivered discovery to Plaintiff..I mailed first class and emailed it to the attorney.

5) Plaintiff never answered any of the production and Interrogatory requests.

Should be a slam dunk if you asked the right questions during discovery.

Have all your discovery request deemed admitted since they didn't answer.

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Savior,

I was leaning towards a Motion to Strike any and all evidence the Plaintiff will try to submit to support their claims at trial.

Since they did not answer discovery and there is no witness, then there is no evidence to submit.

I emailed the attorney this afternoon and she emailed me back. She stated that since I am not a party to the case, she cannot comment or respond to me and that providing representation for my wife as a non-attorney is unlawful.

I responded back and told her good luck at trial when there will be no admissible evidence and no witness to testify. Given she did not answer discovery..try explaining that to the judge when we file the motion..he wont be too happy with you.

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Savior,

I was leaning towards a Motion to Strike any and all evidence the Plaintiff will try to submit to support their claims at trial.

Do you really want to pay another $20 to file a Motion?

Just do it at trial ..... or object when they try to submit ANY evidence that you didn't inquire about in discovery.

Since they did not answer discovery and there is no witness, then there is no evidence to submit.

That'd be my opinion.

I emailed the attorney this afternoon and she emailed me back. She stated that since I am not a party to the case, she cannot comment or respond to me and that providing representation for my wife as a non-attorney is unlawful.

She IS correct about that.

I responded back and told her good luck at trial when there will be no admissible evidence and no witness to testify. Given she did not answer discovery..try explaining that to the judge when we file the motion..he wont be too happy with you.

File your motion if you want to ..... it would alleviate some stress about having to argue those elements in court if granted.

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I do not mind paying $20...We will get that back if the judge grants her motion. My wife will not properly object to evidence that should not be admitted.

I want to get the judge ticked off at the Plaintiff's attorney to give my wife some leverage. The judge already said he does not want to see the parties again before trial or MSJ. If the judge grants the motion, the case will most likely get dismissed by the Plaintiff.

If he does not grant the motion, at least it is on record at trial. If I can get my wife to properly object at trial, then she can bring back up the motion. To me it is like a back up plan.

If it was me going to trial, I probably would have had this case dismissed by now, but my wife does not take the time to learn and take the necessary steps to get things resolved. She wont talk about it and learn...I have her set up to get this thing dismissed, if she will listen to me and follow exactly what I tell her to do.

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Why not try your own MSJ before trial? If they have nothing it may fly. It'll keep you out of court, too, which is good because you made a rather sizable mistake. I'd watch this attorney, she's on to you running your wife's case. The fact that you put this legal argument in an email is not good, either. That email can be interpreted by a judge to imply that you are engaged in the unlawful practice of law.

Michigan Legislature - Section 600.916

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I did not put any legal argument in an email format. I asked if they would be willing to dismiss, the answer was no, so I told them my wife will be entering a Motion to Strike.

Is the mistake emailing the attorney? I have already shot down in previous briefs to the court their account stated claim.

Remember, it is a collections attorney, they are usually not experienced at going to trial. They either get default judgments or MSJs. For a CA to not file a MSJ, means this case is not as cut and dry as they want her to believe. Especially when they will have no witness at trial.

To be truthful, I think this attorney is more scared of me, cause I have called her out on her bluffs. She has not been able to back them up. I have been with my wife everytime she has been around or spoken to this attorney. I will continue to do that so my wife does not get plowed by a lowly collections attorney trying to lie and manipulate the rules to their advantage. I would rather put the attorney in a position to explain that to the judge and why they did not answer the discovery request, provided a witness list and outright lied to my wife and then the judge will yell at this attorney and possibly reprimand her.

The attorney has to know that he/she will not be able to walk all over the Defendant and to be ready for a fight.

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Also the court cannot dictate how a marriage operates. It is like dividing up household responsibilities. Just about every respectable husband will protect their wife tooth and nail.

As I re-read your post legaleagle, I see your point...Now I have to back off and let my wife handle things..which she wont do.

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I responded back and told her good luck at trial when there will be no admissible evidence and no witness to testify. Given she did not answer discovery..try explaining that to the judge when we file the motion..he wont be too happy with you.

I based my critique on what you said you put in the email. You are a well respected member and I am with you 100 percent where it concerns defending a spouse. I just didn't want you to make a mistake like this. You never know what levels a jdb attorney will stoop to. She may back down, but always be prepared for the unexpected.

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Remember, it is a collections attorney, they are usually not experienced at going to trial. . . . I will continue to do that so my wife does not get plowed by a lowly collections attorney trying to lie and manipulate the rules to their advantage.

This "lowly collections attorney" had to make it through law school and pass same bar exam as the guy who finished at the top of his class.

There are lots of reasons why people choose to practice the type of law they do. It is unwise to assume that, because they've chosen to practice creditor law, they're incompetent.

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Nascar,

I would not have made that comment if this attorney would not have lied to my wife multiple times while I was sitting right there. Their complaint was inadequate as it lacked proper documentation to support their claims, they did not respond or answer to my wife's discovery requests and provide a witness list as my wife requested. Collection Attorneys are notorious in not responding to a pro se's discovery requests since attorneys think that pro se litigates do not know the rules of procedure. They try to get away with this crap...but not with me...I will call them out on it and protect my wife.

I have three degrees and a 4 licenses and the testing is just as hard as the bar exam. One license took 3 tests, typically 8-10 hours a test taken over 3-4 years. On top of it my wife and I both worked for banks and know how the system works.

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We got the attorney for GE to respond to our discovery requests. All the attorney did id object to each one and provide account statements where there was a at least a year of statements missing.

They did not include any witnesses and the only affidavit submitted was one from the attorney stating that she was the one responding to and answering the discovery questions.

Now, I told my wife that we have the advantage cause they have nothing other than statements with no affidavit or sworn testimony from a custodian of records.

What do you think our next step should be?

Motion to dismiss? Motion to Strike Evidence? or Motion to Compel?

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