Need Help with Motion to Strike a Affiadavit in MI

[mich1306]

I have a hearing on Tuesday for motion to strike a affidavit. In July I had a

hearing for motion to summary filed by citi bank I brought up that the affidavit

would not be admissible due to the date was past the 10 day rule when they

filed the compliant the judge agreed and the attorney for citi bank asked if

they could submit a updated affidavit or a new one the judge said no but would

allow for both parties to re-submit briefs citi bank filed a new affidavit along

with the same credit card statements and some case law. because the

judge said they couldn't not submit a new affidavit and I filed a motion to

strike it. Citit answered and stated they were not prohibited to submit a

affidavit I called to get transcripts the soonest i can have them is two

week. I need some advice on how to argue this issue on Tuesday.

[bmc100]

They can attach a new affidavit to any business records if it went to trial.

There is caselaw in Michigan where an OC did not need an affidavit to establish an account stated claim, the business records, acct statements, payment history...etc was more than enough to prove their claims.

I posted a motion to strike an affdavit of account balance in one of my posts.

There is three rules to an affdavit per MCR:

1) It needs to be made close to the time the lawsuit was filed

2) Made on personal knowledge of the business records

3) Made by someone who could testify at trial

You made it harder for them to get a summary judgement, but they still can prove their claims.

If at the bottom of the affidavit it states something like:

The information provided is made to the best of my knowledge and belief.....then that is not made on personal knowledge!!

[mich1306]

Thank you for posting the info. looks like I really don't have anything besides the fact that the orginal affidavit was not close to the filing date

[bmc100]

was this credit card bought by Citi Bank?

Look through your records and see at the bottom of the statements if it says Citi or a different name..

Many times CC accounts are bought and sold...especially if it is a retail charge card...ie Macy's, JC Penney, Sears...etc.

and if it is an account that has been open for longer than 5 years.

I just got a notice in the mail that HSBC bought my account from another bank...it has only been 9 months since I opened this account.

[mich1306]

citi sold the account to a different enitity i have the sec filings to prove it. Tomorrow is my hearing to strike this affidavit and I just need something to go in there with the judge orded them that they could not submitt a new affidavit they did anyway so this is the only defense that i have at this time.

[bmc100]

who is the Plaintiff?

[bmc100]

look at this thread....

http://www.creditinfocenter.com/forums/there-lawyer-house/311240-my-wife-getting-sued-ge-money-bank-strategy-motions-strike-msj.html

[BrunoTheJDBkiller]

SEC filings are usually filed when the OC "sells" the accounts to a trust. People then invest in the trust and get some interest, like buying stocks or bonds. Citibank and all the major lenders do this with credit cards, it's a way to raise money. However, when an account goes into default for non payment it is removed from the trust and reverts back to the OC. As a defense, it is called securitization. It has never worked. There is no case law to support it. This is probably what makes you think Citi sold your account.

[mich1306]

who is the Plaintiff?

Citi bank is the plaintiff

[mich1306]

SEC filings are usually filed when the OC "sells" the accounts to a trust. People then invest in the trust and get some interest, like buying stocks or bonds. Citibank and all the major lenders do this with credit cards, it's a way to raise money. However, when an account goes into default for non payment it is removed from the trust and reverts back to the OC. As a defense, it is called securitization. It has never worked. There is no case law to support it. This is probably what makes you think Citi sold your account.

Yes you are correct thanks for the clarification just trying to reach at anything I can to win this case

[mich1306]

look at this thread....

http://www.creditinfocenter.com/forums/there-lawyer-house/311240-my-wife-getting-sued-ge-money-bank-strategy-motions-strike-msj.html

Really good stuff I think I can use some of this for my hearing tomorrow

[mich1306]

Just a update I lost my case judge granted there motion for summary even though i hit them with three rules they broke regarding the affidavit. MIchigan sucks when it comes to credit card case laws.

[Savoir]

Just a update I lost my case judge granted there motion for summary even though i hit them with three rules they broke regarding the affidavit. MIchigan sucks when it comes to credit card case laws.

I'm truly sorry you lost your hearing but ...

Their affidavit is just prima facie evidence .... they obviously had other things going for them that the judge considered and you didn't argue against effectively.

What were they?

If this was not the situation .... and their whole case revolved around the affidavit (not usually the case) ......... APPEAL.

Edited August 29, 2012 by Savoir

[bmc100]

Just a update I lost my case judge granted there motion for summary even though i hit them with three rules they broke regarding the affidavit. MIchigan sucks when it comes to credit card case laws.

Since we did not get the whole story regarding your case from the beginning...tell us what happened in court?

Did you file an opposition to Summary Judgement?

[mich1306]

Since we did not get the whole story regarding your case from the beginning...tell us what happened in court?

Did you file an opposition to Summary Judgement?

Yes I filed a opposition to summary judgement I sent discovery (production of documents which they didn't produce anything. Back in July we had a motion to summary judgement I agrued that citi never attached a affidavit to their complaint and summons and when they filed for a motion for summary judgement the affidavit did not comply with MI rules affidavit was old and the judge agreed citi asked if they could submitt a updated affidavit and the judge said no citi asked if they could submitt a new affidavit and the judge said no but I will give both parties 30days to resubmitt briefs which they resubmitted all the same credit card statements and attached a new affidavit to it I motioned to have the affidavit stricken based on the fact the judge said they could not submitt a new affiavit. Yesterday in court I agrued again that the affidavit was admissable (and sited the rule) that citi was told at the last hearing they could not submitt a new affidavit the judge didn't care her mind was already made up. Unless I am not understanding the rules when it pretains to affidavits I don't understand how they were able to get a motion against me also the affidavit was all they had nothing else I asked for a card agreement during discovery and they produced a barely legitable print off and put my name in blue ink at the bottom which wasn't even spelled correctly. I agrued this as well didn't seem to help my case. I brought up everything I could. I don't even know if I have the engery to go on with a appeal.