Those being sued in Michigan by a JDB, step by step in Defending

[bmc100]

As most of us know, it is very difficult to defend a credit card case and win in Michigan. I wanted to share not only a step-by-step guide to Defending a lawsuit, but also the errors that I continuosly see pro se Defendant's make from filing an answer to the errors in their oppositions to summary judgment.

1. Service of the complaint and summons, if served in person - you have 21 days to respond, if served by mail - you have 28 days to respond.

2. you have to respond to each numbered allegation in the complaint in one of the following three ways: MCR 2.111©(1)(2)(3).

A. The Defendant denies this allegation in its entirety

B. The Defendant admits this allegation in its entirety

C. The Defendant lacks knowledge of information sufficient to form a belief as to the truth of the allegation, which has the effect of a denial.

MCR 2.111(D) - Form of denials, Each denial must state the substance of the matters upon which the pleader will rely upon to support the denial.

3. You cannot object to an allegation or just simply deny the allegations. You need to support the denial with a defense to the allegation or some other issue that exists. I see too many posters objecting to allegations, which is an easy path to a judgment.

4. As mentioned, you can list defenses to the allegations. The two primary defenses to JDB lawsuits on credit cards are 1) Failure to state a claim and 2) Lack of Standing.

Michigan does have a statute of frauds law, but this is based upon written contract law, so do not use it in CC suits. You could use it prior to 1994, but the banks lobbied to get the law changed.

5. Here is a big issue I see in many of the Plaintiff's complaints that no one ever challenges, the proper pleading of the assignment in the complaint. In the last 6 or 7 cases I have commented on, the complaint only reads something like this:

CACH, Midland PRA

Plaintiff

v.

Pro Se

Defednant

Now comes JDB XYZ, Plaintiff filing this complaint....etc.

6. MCL 600.2041 states the “every action shall be prosecuted in the name of the real party of interest. In nearly identical wording, MCR 2.201( requires that an action must be prosecuted in the name of the real party of interest. As a result, the Plaintiff has failed to state a claim where relief can be granted, pursuant to Masterspark Co. v. Hickerson, 211 Mich 411, 415; 179 N.W. 232 (1920), and McKnight v. Lowitz, 176 Mich 452, 453, 142 N.W. 769 (1913), an assignee must plead the assignment of the debt from the assignor within it’s complaint to establish that it is the real party of interest sufficient to support a cause of action.

7. Also, I have seen in every case that the Plaintiff never attached the bill of sale or other relevant documents to the complaint. Most times JDBs will not do so, since 90% of cases go uncontested.

8. I have also been advocating to many posters to file a motion to dimiss, prior to filing an answer. If you see that the Plaintiff did not plead the assignment, do not let the case move forward until they can either correct their mistakes by properly pleading the assignment and by attaching the proper documentation to the complaint.

9. In every case, the assignment documents are missing. The Plaintiff will usually provide the bill of sale and a computer printout with your personal information in it. The bill of sale is signed by an employee of the original creditor, but carefully read the bill of sale. It will also state other documents that the Plaintiff does not want you to see. Given recent case law, if the Plaintiff cannot provide the written contract upon which the sale is based that also shows that your account was included in the sale of accounts, the Plaintiff has failed to show they have standing.

[bmc100]

10. The affidavit attached to the complaint is usually made by a JDB employee, but the affidavit supporting the bill of sale needs to be made by someone at the original creditor. Typically, it is an employee of the JDB that makes this affidavit. The affidavit has to by made within 10 days preceeding the filing of the complaint or issuance of the writ (summons). MCL 600.2145. If the affidavit is made prior to that 10 day period, the affidavit does not serve as PRima Facie evidence and the court cannot put weight of evidence towards that affidavit.

Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

A) The affidavit presented in this case at bar was made more than ten days before the complaint was filed, and therefore was improperly considered by the trial court as prima facie evidence of indebtedness. The plain language of MCL 600.2145 prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit.

11. Now, you submitted your answer instead of a motion to dismiss. The court will send you a pre-trial hearing date. DO NOT GET WORRIED, it is only procedural. The court will set the discovery period and any other alternative forms of settling the suit. YOU DO NOT NEED TO MOTION FOR DISCOVERY.

12. Get your discovery questions and ROGS and Admissions out as soon as possible...99% of the time, the JDBs attorney will ignore your discovery and send you the documents that they have with their Motion for Summary Judgment.

13. 99.9% of the time the JDB's attorney will file a Motion for Summary Judgment. As the Defendant, beat them to it and file your own MTD. Up to this point, the JDB has not supplied you with any documentation showing that they have made a proper claim. Also remember, this is an alleged creditor, they have to show they have standing to bring this suit. THe MTD, will force them to show their entire hand. Think of it as playing poker, you know from the start, even if you have never defended yourself in a lawsuit that your hand is stronger than theirs, so call out their bluff. Here is what will happen, the typically the JDBs suit will not get dismissed, the judge will create a court order telling the Plaintiff to produce certain documents in a certain amount of time, usually a week or two. The judge will then schedule a status hearing to allow the Plaintiff to either provide to the court the documents or they do not have them or do do not want to show them. In just about every case, they either dont have them or do not want to show them. The attorney will call you to ask for more time or to ask for a dismissal. Until they produce those docs, the case does not move forward.

14. If you do not file a MTD, as mentioned expect a motion for summary judgment. Here are a few big errors I see others making in filing an opposition to the MSJ.

1) They get someone elses opposition, copy and paste

2) THey do not file an opposition - Case over, Plaintiff wins.

3) THey do not properly plead their opposition by responding to each and every argument that the Plaintiff makes in the MSJ while providing authority, caselaw, and the rules and laws that apply to the argument, most of all they do not raise the defenses that they stated in their answer.

In any of these scenarios, it is game over, Plaintiff wins...you will not be able to appeal.

15) There will be another affidavit attached to the MSJ by an employee of the JDB. They will claim that they have personal knowledge of your account and the amount is correct or they will state they received this information from someone else with personal knowledge. In either case, it is Hearsay. The affiant needs to have personal knowledge of your account, how it was created...etc. We all know that a JDB employee has no personal knowledge of anything, but you need to argue this is your opposition or the court will take that affidavit as truth. It is not to the court to help you if you make a mistake, but if you bring up issues of fact...then the court has a basis to support your argument and either force the Plaintiff to come up with more documentation or deny their claims.

16) Also, if your argument is not in writing, do not try arguing it during the motion hearing. The judge will not listen to it.

17) Let me revisit the bill of sale argument. There is little case law in this state regarding what elements are necessary to create an assignment. In Westin v. Dowty, 163 Mich App. 238, 242, 414 NW2d 165(1987), this court opinioned “there must be a perfected transaction between the parties which is intended to vest in the assignee a present right in the thing assigned.”

In the last couple years, the Court of Appeals has ruled a couple of unpublished cases that shows the errors that JDBs make when pleading the assignment.

A) Unifund CCR Partners v. Riley Mich App (2010)

Brown Bark II LP v. Bay Area Floor Covering & Design Inc, (Unpublished) Mich Court of App (2011)

Both cases state that without the sales agreement and the account purchase agreement showing that the Defendant's account was one of the accounts clearly shown in the sale, the Plaintiff lacked standing to sue.

I do not see posters on this forum using these arguments to create an issue of material fact. Creating an issue of material fact gets you past the summary judgment stage and onto trial. A JDB will not go to trial on a CC case and will dismiss the suit.

There is much more information that I could provide. I know, like myself when I was sued, I was scared and did not know what to do. All I can say is that you are going to be scared, but when people who are knowledgable or have been successful in defending suits tries to help you...follow their advice and do not try to come up with your own answers to your questions. Follow the steps and procedures they are telling you to take and the good people on this forum will guide you.

[georgejonesfan]

Thank you, bmc100, for this extrememly helpful thread.

Raising my hand here to say I'm one of those that didn't listen & file a MTD immediately, and I wish I had, even though I'm pretty dang sure I'm gonna be able to oppose their MSD successfully.

One of the biggest problems, in my opinion, in a first-timer filing a MTD, is the intimidation of filing a motion so early into your first case. I know it was for me. When I first started researching and reading the Rules of Civil Procedure, I didn't pay a lot of attention to all the rules about how to properly format pleadings, and I should have, but it was so early in the whole thing that I thought I had plenty of time to learn that part later. I'm a bit of a perfectionist and while I did actually start the process of researching how to file a MTD when bmc100 suggested it, I didn't get the whole formatting it properly thing down in time before the Plaintiff filed their MSD. Opportunity lost.

I think that if it doesn't already exist, a template specifically for a Michigan MTD would really help a lot of people. Maybe even a template for all pleadings in Michigan? Just the headings and all of that was a real headache for me to get right. Then there's the font size, the spacing, etc. It can be overwhelming. At the place I am in my case right now, I think I've finally got that part down and now can concentrate on compiling case law, etc. I did things a$$-backwards and would like to see others learn from my mistake and not do the same.

Finally, I want to say that bmc100 is 100% correct when he says the good folks here will guide you along the process. When I first started reading here I found some posts that seemed almost belittling to bewildered new posters, telling them "We aren't going to do your work for you." This can leave a newbie feeling discouraged about asking for too much help, especially when they haven't the first idea about properly formatting pleadings and things like that. Don't let it keep you from asking, though -- the worst that can happen is your plea for help will be rejected, heh, and you may have to look elsewhere for the info.

No matter what, don't give up. Hang in 'til the bitter end, pals, because tyrants have to be stood up to and you've been chosen to be the hero that knocks 'em down a notch or two. That's right -- you are the Chosen and have an important destiny to fulfil Someday bards will memoralize your mighty deeds in song, fair maidens'/strapping lads' hearts will beat faster at the mere mention of your name, and schoolchildren will read of your couragous acts and think, "I want to be just like him/her!". Don't let that opportunity pass you by.
 

[bmc100]

The only thing is that there is no "Format", since every suit is different with the exception of this:

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Now Comes, __________, Defendant pro se who moves this court to dismiss this case under MCR 2.116©...etc.

LEGAL STANDARDS

Which is the rule(s)you are using to support your MSJ, cite with caselaw.

STATEMENT OF FACTS

Numbered, recollection of facts that have happened in your case up to this point

BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

What is the basis of your arguments? Summarize the main arguments you are going to make, cite caselaw and any rules or laws you will reference

Then go through each cause of action ie Breach of Contract, Account Stated and argue how the Plaintiff did not properly plead their claims, again cite with caselaw, rules and laws. Apply any defenses that you plead in your answer, if you filed one before submitting your motion

CONSCLUSION

Summarize how you proved your arguments that related the the civil rule you are basing your motion on. Then state what action you want the court to take if they grant your motion.

Attach documentation as exhibits, reference them in your motion.

[Savoir]

I believe that what georgejonesfan is referring to when she mentions format is covered

under MCR 2.113 Form of Pleadings and Other Papers (A) - (G).

 

I created a template in Word 2007(attached) which I use in virtually every filing I've had to make.

[georgejonesfan]

I believe that what georgejonesfan is referring to when she mentions format is covered

under MCR 2.113 Form of Pleadings and Other Papers (A) - (G).

 

I created a template in Word 2007(attached) which I use in virtually every filing I've had to make.

Yes, this is what I meant. Thank you!

[georgejonesfan]

The only thing is that there is no "Format", since every suit is different with the exception of this:

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Now Comes, __________, Defendant pro se who moves this court to dismiss this case under MCR 2.116©...etc.

LEGAL STANDARDS

Which is the rule(s)you are using to support your MSJ, cite with caselaw.

STATEMENT OF FACTS

Numbered, recollection of facts that have happened in your case up to this point

BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

What is the basis of your arguments? Summarize the main arguments you are going to make, cite caselaw and any rules or laws you will reference

Then go through each cause of action ie Breach of Contract, Account Stated and argue how the Plaintiff did not properly plead their claims, again cite with caselaw, rules and laws. Apply any defenses that you plead in your answer, if you filed one before submitting your motion

CONSCLUSION

Summarize how you proved your arguments that related the the civil rule you are basing your motion on. Then state what action you want the court to take if they grant your motion.

Attach documentation as exhibits, reference them in your motion.

 

This is great. I'm so glad I brought up the subject, because I almost didn't for fear of derailing the thread. But I think the info here is going to be extremely useful for Michigan posters. Thanks!

[Huey Pilot]

The only thing is that there is no "Format", since every suit is different with the exception of this:

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Now Comes, __________, Defendant pro se who moves this court to dismiss this case under MCR 2.116©...etc.

LEGAL STANDARDS

Which is the rule(s)you are using to support your MSJ, cite with caselaw.

STATEMENT OF FACTS

Numbered, recollection of facts that have happened in your case up to this point

BRIEF IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

What is the basis of your arguments? Summarize the main arguments you are going to make, cite caselaw and any rules or laws you will reference

Then go through each cause of action ie Breach of Contract, Account Stated and argue how the Plaintiff did not properly plead their claims, again cite with caselaw, rules and laws. Apply any defenses that you plead in your answer, if you filed one before submitting your motion

CONSCLUSION

Summarize how you proved your arguments that related the the civil rule you are basing your motion on. Then state what action you want the court to take if they grant your motion.

Attach documentation as exhibits, reference them in your motion.

 

I have read a lot of suggestions and discussions on the "best practice" of dealing with a JDB's Summons and Complaint on the front side within the time allotted to respond. 

 

Just to clarify your recommendations, are we talking about a) Defendants Motion to Dismiss, MTD, or b ) Defendants Motion for Summary Judgement (MSJ).

 

However not the same, every document we file ends with a request for dismissal with prejudice as conclusion prior to the signature block. 

 

Motion for Summary Judgment in Lieu of Answer: (As in your example)

 

Just about every poster, regardless of State, in defense of their law suit, files an answer or even gets as far as some Defendants preliminary requests for discovery documents, admissions and Rog's, only to have the Plaintiff in the interim bomb them with a (MSJ).  Usually this unsettling event is  disheartening and adds total confusion to the the Defendants case. The Defendant say's "Now What - I've lost do I negotiate a settlement". Wrong!!

 

I have read suggestions by many of the senior posters on this forum that the Defendants MSJ is your hold card that trumphs everything, or that a Defendants MSJ gives away your strategy. In Oregon where I reside the Courts charge $200.00 for a MSJ and $240.00 to file an answer to a complaint so there is also a minor economic advantage to filing a MSJ in Lieu of Answer. The Plaintiff also is not required to provide any of the evidence documents or affidavit with the Complaint. (Pro JDB Courts allow for a cheap default) As far as strategy - you really haven't given anything away yet. 

 

I like the fact that filing a well crafted Defendants MSJ in Lieu of Answer sends our a bold, clear, and very aggressive message that says the "fights on" and you have fired the first rocket hitting them right in the center of their ammo dump. It states that continuance of this law suit will cost them some money. Most importantly it shifts the burden of proof back on the Plaintiff. The Plaintiff now has to pay for the acquisition of OC's, or other JDB's, phony document package and prove their standing and real party of interest or dismiss prior to the suit moving forward. In Oregon where we have mandatory Court Adjoined Arbitration it just might get the Judge to look at the motion before it's deferral to arbitration and take action. It would save a lot of time and expense as well as paperwork for the Court. 

 

The JDB's attorney can always file a counter motion but it won't have the suprise factor or the impact of demoralization he was counting on. Worst case scenario is that the MSJ will stop the forward motion and give you time to prepare answers and effectively prepare your defense. I specifically like to see transferring the heat back on the Plaintiff.

 

HP

[bmc100]

Another step a Defendant can take is to file a Motion for a more definitive statement, which is rarely used in Michigan or as BTO has mentioned, an order to show cause, which is a more common approach to dealing with procedural issues and force the Plaintiff to throw in all of their chips. It is MCR 2.115(A).

Most of the posters from Michigan are first time Defendants, so to simplify things, the MTD in lieu of an answer is easier. With an inexperienced litigant to give them the best chance to win, you have to show their hand, then leave it up to the court and call the Plaintiff's bluff.

In Michigan, it only costs $20 to file a Motion and it does not cost anything to file an answer.

[BV80]

10. The affidavit attached to the complaint is usually made by a JDB employee, but the affidavit supporting the bill of sale needs to be made by someone at the original creditor. Typically, it is an employee of the JDB that makes this affidavit. The affidavit has to by made within 10 days preceeding the filing of the complaint or issuance of the writ (summons). MCL 600.2145. If the affidavit is made prior to that 10 day period, the affidavit does not serve as PRima Facie evidence and the court cannot put weight of evidence towards that affidavit.

 

This only applies if the cause of action is open account or account stated.  Does that apply to a breach of contract claim?  In addition, the affidavit must be related to the account stated claim.  It's not about the bill of sale.  The bill of sale has nothing to do with the account stated claim.

 

600.2145 Open account or account stated; proof, counterclaim.

 

In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated...

 

Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

A) The affidavit presented in this case at bar was made more than ten days before the complaint was filed, and therefore was improperly considered by the trial court as prima facie evidence of indebtedness. The plain language of MCL 600.2145 prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit.

 

Where was that stated in the Spiek case? 

[bmc100]

10. The affidavit attached to the complaint is usually made by a JDB employee, but the affidavit supporting the bill of sale needs to be made by someone at the original creditor. Typically, it is an employee of the JDB that makes this affidavit. The affidavit has to by made within 10 days preceeding the filing of the complaint or issuance of the writ (summons). MCL 600.2145. If the affidavit is made prior to that 10 day period, the affidavit does not serve as PRima Facie evidence and the court cannot put weight of evidence towards that affidavit.

 

This only applies if the cause of action is open account or account stated.  Does that apply to a breach of contract claim?  In addition, the affidavit must be related to the account stated claim.  It's not about the bill of sale.  The bill of sale has nothing to do with the account stated claim.

 

600.2145 Open account or account stated; proof, counterclaim.

 

In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated...

 

Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

A) The affidavit presented in this case at bar was made more than ten days before the complaint was filed, and therefore was improperly considered by the trial court as prima facie evidence of indebtedness. The plain language of MCL 600.2145 prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit.

 

Where was that stated in the Spiek case? 

That was what I was referencing. The JDB affidavit to support an account stated claim. There needs to be an affidavit from the OC with the bill of sale...thank you for clarifying.

Here is the where I was referencing spiek...

In Capital One Bank v. Ringelberg, Mich App Ct (Unpublished 2005), We review the trial court’s decision to grant summary disposition under MCR 2.116©(10) de novo. Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

Sorry, I was typing fast and furious and trying to find some privacy this morning...my mother-in-law spent the night and I typed most of this thread from my bathroom...It was the only place where there was privacy.

[BV80]

That was what I was referencing. The JDB affidavit to support an account stated claim. There needs to be an affidavit from the OC with the bill of sale...thank you for clarifying.

Here is the where I was referencing spiek...

In Capital One Bank v. Ringelberg, Mich App Ct (Unpublished 2005), We review the trial court’s decision to grant summary disposition under MCR 2.116©(10) de novo. Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

Sorry, I was typing fast and furious and trying to find some privacy this morning...my mother-in-law spent the night and I typed most of this thread from my bathroom...It was the only place where there was privacy.

 

Oh, boy!  The joys of family at Christmas. 

 

Thanks for clearing that up about the Spiek case.  When I couldn't find the quotation about the affiavit, I thought that I sure wasted a bunch on these glasses.

[bmc100]

Dellb130 just emailed me, they had their status conference this morning. Case dismissed with prejudice.

 

I am 3 for 3 helping posters defeat JDBs and I have two OCs that I beat in court!!

 

Hopefully NervousOne knocks down the Opposition we created and gets on the road to having the case dismissed!! "He is on his way to a dismissal, cause the MSJ was denied.

 

The strategy I outlined works, you just need to execute it properly!!

[bmc100]

Here is some additional caselaw that was referenced by a Consumer Law Attorney in Michigan that goes through what is needed to prove that a JDB actually bought the account.

 

http://www.rexandersonpc.com/fdcpa/michigan-debt-buyer-cases-based/

[bmc100]

This is a blog by a Law Firm Weltman, Weinberg & Reis on the increased scrutiny that debt buyers face in proving the assignment

 

http://www.weltman.com/publications/client-advisories/?i=343&NH

[bmc100]

From page 14 to the end is an actual Purchase Agreement created by Chase Bank. In proving assignment, with caselaw to back it, you can use this as an example to show the court. The JDB does not give us this document, but on Page 1 under definitions, you will see "affidavit of account", yes there is an affidavit from the OC that accompanies these bills of sale and if the JDB does not have it, they try to substitute the affidavit with an employee of the JDB creating an affifdavit.

 

Next, look at Section 6, Page 18 - Disclaimers Regarding Terms of Sale

 

http://www.mcbaonline.com/UserFiles/File/Memo%20%20of%20Law%20re%20pleading%20and%20litigating%20assigned%20delinquent%20debt%20with%20intro%20letter.pdf

[bmc100]

This is a very thorough presentation paper from a panel of Consumer Attorneys in Massachuettes that go through every element of a debt collection lawsuit. Quite a few of the points I made in this thread correspond with that they are stating for attorneys who practice debt collection defense to do. We can find similiar caselaw in Michigan that would correspond with the arguments that this paper discusses.

 

http://www.masslegalservices.org/system/files/Substantive_Defenses_to_Consumer_Debt_Collection_Suits_t.pdf

[upsman40]

From page 14 to the end is an actual Purchase Agreement created by Chase Bank. In proving assignment, with caselaw to back it, you can use this as an example to show the court. The JDB does not give us this document, but on Page 1 under definitions, you will see "affidavit of account", yes there is an affidavit from the OC that accompanies these bills of sale and if the JDB does not have it, they try to substitute the affidavit with an employee of the JDB creating an affifdavit.

 

Next, look at Section 6, Page 18 - Disclaimers Regarding Terms of Sale

 

http://www.mcbaonline.com/UserFiles/File/Memo%20%20of%20Law%20re%20pleading%20and%20litigating%20assigned%20delinquent%20debt%20with%20intro%20letter.pdf

So in my case the JDB in Michigan ASSet Acceptance first witht he complaint and summons provided an Affidavite of Account from them notorized within the Laws of the timeframe to have it submitted and then an account Statement on there letterhead.  After ROGs they provided the Assignment and Bill of sale from OC, A claim summary with a Date 2 moinths after complaint was filed(obviously made from their computer),  The dedacted account allegedly sold to them with full account number my name and amount allegedly owed(Titled Schedule A)  and 3 generic  credit/loan agreements from the OC,  It seems to me they have covered their bases this time.  Albiet at pre trial the judge ordered the plaintiff to provide the orignal contract by December 21st, 2012

[bmc100]

UPS, given recent caselaw..most lower courts in Michigan are requiring the original contract between OC and JDB. Here is what will happen, even if they have it...they wont submit it to the court, they do not want the judge and the Defendant to see the disclaimers and the amount paid for the debt, plus there should be a section that states this purchase agreement is accompanied by an affidavit of the OC, which in an ideal world, would invalidate the affidavit of the JDB employee.

 

Your case will most likely get dismissed.

[upsman40]

UPS, given recent caselaw..most lower courts in Michigan are requiring the original contract between OC and JDB. Here is what will happen, even if they have it...they wont submit it to the court, they do not want the judge and the Defendant to see the disclaimers and the amount paid for the debt, plus there should be a section that states this purchase agreement is accompanied by an affidavit of the OC, which in an ideal world, would invalidate the affidavit of the JDB employee.

 

Your case will most likely get dismissed.

Great, I am hoping so with your help and many others here, the pre trial suprisingly was basically telling the Plaintiffs rent a lawyer you have 30 days to produce this document or else.  Thank you so much for all of the information , I am trying to stay up and be prepared in case we hit trial.  Hopefully not, 10 more days to produce!!  Also where can I find this case law, I have been moderatly successful searching on my own even with google scholar

[bmc100]

UPS, what type of caselaw are you looking for?

[upsman40]

UPS, what type of caselaw are you looking for?

Anything with burden of proof documents needed by the JDB etc.  Most of what you have referred to in the previous posts I have found, but I must be doing something wrong when looking for specifics sucha as stated above.

[bmc100]

here is caselaw regarding the notification of assignment, but its does not state whatis needed to prove assignment:

 

http://scholar.google.com/scholar_case?case=12785509250901141857&q=MCL+440.9406+notification+of+assignment&hl=en&as_sdt=4,23

[bmc100]

The Unifunds CCR Partners v. Riley case that I keep referring to in other threads...Riley is/was a CIC Member and his case now serves as a benchmark case to fighting bill of sales. I found the thread that Riley created in 2010 explaining how the Mich Court of Appeals came to the conclusion...It also gives reference to MCL 440.9406 (Notice of Assignment and authentication of assignment).

 

You will have to read it a few times for it to make sense...there is much more information than what is in the caselaw on google scholar.

 

http://www.creditinfocenter.com/community/topic/300255-i-won-unifund-ccr-partners/

 

Please look at thread #4, the affidavit of the JDB did not authenticate anything, since the affiant was not available for cross-examination to test the truth of the statements she made .

 

If you notice with the bill of sales, the JDBs take one paragraph out the puchase agreement and call it a bill of sale....Under MCL 440.9406, Unifund did not prove the chain of assignment from the assignor to the assignee, so the Mich COA could not termine with 100% certainity that the document is unadultered.

 

good read and it is actual caselaw!!

[BV80]

It's unpublished case law.  That's means it's not binding on any court.  It's persuasive but not binding.

 

Please look at thread #4, the affidavit of the JDB did not authenticate anything, since the affiant was not available for cross-examination to test the truth of the statements she made .

 

This is what the court stated:

 

Because plaintiff presented affidavits and documentary evidence in support of its motion, defendant had the burden of responding to plaintiff's motion with documentary evidence or other evidentiary proofs showing that there was a genuine issue of material fact for trial.

 

Contrary to what defendant argues, the affidavit submitted by plaintiff was signed and notarized. Further, as explained previously, plaintiff was not required to produce a signed credit card agreement. Rather, use of the credit card alone may be sufficient to establish acceptance of the terms of the retail charge agreement. However, because defendant disputes that she used the card, the mere fact that the account was used is insufficient. Defendant can only be deemed to have accepted the terms of use if she or someone she authorized used the card. Therefore, plaintiff must show defendant used, authorized the use of or paid on the account to show that she accepted the terms of the agreement. Absent such evidence, plaintiff has not shown defendant's acceptance of the terms of the account through use and a signed agreement will be necessary.

 

The court didn't say that the affidavit didn't authenticate anything.  They merely stated Unifund didn't provide enough evidence.

 

Also, when the court stated that Unifund didn't prove they own the account, they didn't mention anything about it being related to MCL 440.9406.