bmc100

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

228 posts in this topic

And thanks again bmc100 with your help defeating AA's MSJ.  I will be creating a fully documented thread within the week for everyone to see what I did wrong and what I did right.  I'm brand new here so it might take some time.  But I'm more than happy to share the information if it can help someone else defeat dirt bag JDB's.

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Is it that easy to get a mtd?  I know the mi rule says that a complaint has to have written instrument attached, and most of the jdb and oc's don't include a thing because they just assume it will go unattested. So, if that is in fact the case, I get sued but nothing included with complaint, I file mtd for this reason, judge approves and its over? Or do they have a certain amount of time to include it?

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You do not file a MTD solely for that reason. The judge will allow them to correct their mistake.

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I am helping another poster oppose a MSJ vs. a JDB. I told the poster to deny the account in an affidavit. The poster does not want to deny the account for the sake of perjuring themselves.

 

The easiest defense against a JDB is to deny, deny, deny and remember they have the burden of proof in proving their claims. Never let a JDBs attorney turn the burden of proof onto you.

 

As I said in my first couple posts on this thread...people new to defending themselves in a CC lawsuit do things to shoot themselves in the foot by not knowing what to do.

 

DENY all the claims they make and the account, deny the amount they are claiming....etc. Keep the burden of proof on the Plaintiff!!

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I'd be very careful.  If the JDB has submitted cc statements that show the defendant's name and address, all the judge has to do is ask the defendant if that was his account, if he lived at the address shown on the cc statements, etc.  If the defendant has to answer "yes" to those questions, he doesn't look good in the judge's eyes.  The defendant has cast doubt on his own credibility.

 

Making false statements in an affidavit can get you in trouble.  MI Rules even mention affidavits made in bad faith.

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In the case I am referencing specifically, the OC sold the account in 2005. The statements (which there are only a couple), were dated in 2006 and 2007 and they had the wrong account number on them.

 

An OC will not generate and mail statements on an account after they wrote off and sold the account to a JDB.

 

In this case, why admit to an account when the JDB sent the Defendant garbage evidence?

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Sent 14 January 2013 - 12:09 PM

ASSet in Michigan goes down!!! Dismissed with prejudice this morning at 10:30 a.m.!!! Thank you to every single one of you Ladyhunter- Great Book, Bruno, bmc100 you and your postings for MI were invaluable, BV80, Seadragon, Calalawyer, coltfan1972, BTO429 and I am sure I am missing many more. Now to go after them for FDCPA, my credit reports etc

 

Wanted to send you all a personal message and a personal thank you for all of the help!! ::travolta::

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Way to go!!!  With prejudice, no less!  Excellent job on your part!

 

:PartyTime:   ::band::  ♫ Another one bites the dust! ♫

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I am changing up the strategy if one receives a complaint without any documentation attached to the complain and without an affidavit. It is just a bare complaint.

 

1) File an answer - Deny all claims unless you know they are true.

 

If you file a MTD or Motion for a more definitive statement,  instead of an answer, the Plaintiff can correct their errors. If you file a responsive pleading, ie an answer and the plantiff does nothing to correct their errors, then you can file an MSJ under MCR 2.116©(8) - which is based upon the complaint and any responsive pleadings alone. So wait until after the pre-trial conference before filng your MSJ.

 

MCR 2.118(A) reads in pertinent part:

(1) A party may amend a pleading once as a matter of course within 14 days after being served with a responsive pleading by an adverse party, or within 14 days after serving the pleading, if it does not require a responsive pleading.

 

(2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party.

 

A motion for summary judgment is not considered a responsive pleading. MCR 2.110(A); City of Huntington Woods v. Ajax Paving Industries, Inc, 178 Mich App 600, 601; 446 NW2d 331 (1989). Under MCR 2.110(A), a “pleading” includes only a complaint, a cross-complaint, a counter-claim, a third-party complaint, an answer to any of the former, and a reply to an answer. MCR 2.110(A) specifically states “[n]o other form of pleading is allowed.”

 

Then you point to MCR 2.113(F)(1) as to why the MSJ should be granted. The court could grant the Plaintiff a leave of the court to correct their mistakes, but if too much time goes by, and you contest the court granting the Plaintiff a leave. As a matter of law, the court must dismiss the case. The Plaintiff could file a motion of reconsideration with an amended pleading. If you attached exhibits to your answer ie an affidavit and it goes uncontested, you could get the case dismissed with prejudice.

 

You can also use this argument to plead your lack of standing. As discussed in prior posts, the Plaintiff hardly ever attaches the bills of sale to the complaint. They could plead the assignment in the complaint by stating they are the assignee of XYZ Corp. A mere allegation that they are assignee is not enough to survive a challenge.

 

However mere statements of a pleader’s conclusions, unsupported by allegations of fact, will not suffice to state a cause of action. Churella v. Pioneer State Mutual Ins Co., 258, Mich App 260, 272; 671 NW2d 125 (2003).

 

Always remember, when you file a motion..At the motion hearing, you have the floor. The judge is more likely to read your motion before even looking at the Plaintiff's opposition. Hit them in the teeth and be clear and precise in your presentation of the motion.

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To add to my last post, if there is no affidavit or docs attached to the complaint, and you filed your own affidavit with your answer.

 

Your affidavit will serve as prima facie evidence towards the Plaintiff when it goes uncontested.

 

Then, when you file an MSJ under MCR 2.116©(10), the motion is based upon the pleadings and documentary evidence, depositions..etc. Your affidavit is the only evidence submitted to the court.  In there opposition, they cannot create an affidavit to rebute your affidavit.

 

The only evidence submitted with the pleadings, is the Defendant’s affidavit denying ever entering into an contract with the Plaintiff’s assignor. The Defendant has asserted uncontested Prima Facie evidence against the Plaintiff. See… Velardo & Assoc. v. Oram Mich Ct. of Appeals (2008), quoting American Casualty Co. v. Costello, 174, Mich App. 1, 7; 435 NW2d 760 (1989), explained Prima Facie evidence is not irrefutable:

 

Prima Facie evidence is evidence which , if not rebutted, is sufficient by itself to establish the truth of a legal conclusion asserted by a party. People v. Licavoli, 264 Mich 643, 653; 250 NW 520 (1933). This action is brought upon the pleadings alone. Therefore, no additional evidence maybe submitted to support the Plaintiff’s claims.

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And thanks again bmc100 with your help defeating AA's MSJ.  I will be creating a fully documented thread within the week for everyone to see what I did wrong and what I did right.  I'm brand new here so it might take some time.  But I'm more than happy to share the information if it can help someone else defeat dirt bag JDB's.

 

I just received a PM from inprosedefendant. AA just sent him a dismissal to sign off on...waiting to see if it is w/prejudice or without.

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Just got feedback from another poster, judge denied his MSJ and denied the Plaintiff's MSJ. Now, Plaintiff is giving him a very low settlement offer. This is the first case where the judge opinioned in this way, "The Defendant's position regarding the original debt alleged is somewhat ambiguous."

 

I believe in his MSJ, the poster denied knowledge of the debt. There could have been something said during oral arguments that lead to the judge's interpretation. I am waiting to get clarification on what was said.

 

The judge simply stated in denying the Plaintiff's MSJ that a stale affidavit simply fails to establish a prima facie case against the Defendant. The pleadings and affidavits convinces this court that issues of material facts are left to decide at trial to give the parties a chance to submit evidence to support their claims.

 

I will take that as a win for the time being. This is a suit represented by Stillman. Chances are Stillman will fold prior to trial...that is usually the case.

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Those 'stale' affidavits are a big stumbling block for these JDB's in MI.

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Update from my last post....Stillman called again today, before the next hearing. They agreed to a dismissal. Poster pays a really low amount (a couple hundred) on a $3,000 debt. I told the poster that you can call that a win. Stillman did not want to keep fighting. This case is on the other side of the state versus where Stillman is located. They did not want to have to either hire a stand-in or travel to show up for Trial. The cost already outweighed the award. On the opposite end, the poster did not want to take any more vacation days to fight it and be left with no time off for the rest of the year.

 

Chalk up another win for the good guys against no other than MIDLAND!!

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Here is another issue to discuss as well. MRE 803(6) Business Record Exception. In most cases, there testimony or affidavit from a custodian or other qualifies witness in order for the Plaintiff to admit evidence whether at the MSJ hearing or at trial.

 

THere is aspect to evidence where the judge can bypass this requirement if there is plausible evidence to support the Plaintiff's claims. Here the evidence is self-authenticating or the judge is making the determination that the evidence is what the Plaintiff claims it is.

 

If a JDB in rare circumatances has the contract, the terms and conditions, account statements and any other business record, then the courts could bypass MRE 803(6).

 

There are documents prepared for the sole use in litigation. These are not account statements, terms and conditions....etc. These are documents that normally would not be kept during the regular course of business. These docs need the proper foundation to be admitted as evidence

 

If you do not object to any documents where the Plaintiff did not lay the proper foundation that it is a record of regularly conducted business activity, the judge will admit it as evidence and you will lose.

 

MCR 2.116(G)(3) provides:

Affidavits, depositions, admissions and other documentary evidence offered in support of the grounds asserted are required, when a motion is brought upon MCR 2.116©(10).

With the proper foundation, the document would be admissible as a record of regularly conducted business activity. See MRE 803(6). Barnard Mfg Co. Inc., v. Gates Performance Engineering Inc., 285 Mich App 362, 373-374; 775 NW2d 618 (2009).

 

In looking at COMMUNITY SHORES BANK v. BABBITT’S SPORTS CENTER, LLC., MI Court of Appeals (2012), “Before evidence of a particular matter can be admitted, it must be identified or authenticated. MRE 901(a). It can be identified by the testimony of a witness with knowledge of the documents and what they claim to be, MRE 901(B)(1), or self-authentication by an AFFIDAVIT from the records custodian. MRE 902(11).

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wow, BMC100 you're really getting into this! I'd bet if more judges really were familiar with these laws, etc...and people in trouble really pout in the effort to  become educated, I can't see why many, many more of these cases wouldn't get dismisses...Thanks again for the help!

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Plaintiff's MSJ ... DENIED:<img src=:'>  8-)   

 

Thank you so very very much bmc100 for all of your help.

 

I could NOT have done it without you ! 

 

YOU ROCK ! xguitarx 

 

Thank you for helping all of us Michiganders.

Trial in April .

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This has been of GREAT help to me! AA coming after me in MI. Hoping for similar results!

You'll do GREAT..

bmc100 is awesome, and knows what he's talking about, especially for us poor MI folks !

Look forward to seeing you post your victory as well !

 

  :goodluck:

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Peanut emailed me....Plaintiff sent her a stipulation to dismiss with prejudice. I told her to sign it and send it back.

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Chalk up another WIN for the home team ! 

 

Plaintiff sent me a Stipulation to Dismiss WITH Prejudice !!!

 

Game over.. another JDB bites the dust.  xdeadhorsex

 

Thank you again bmc100 for all your help!
 

Also thank you to the other veteran members here for their help and support as well.
Tremendous gratitude to all of you that take the time to help out us folks.

Very unselfish and has restored my faith in humanity !  :grouphug:

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Peanut, you are the last poster that I write a motion or an opposition for without charging. I know you posted on one of my threads and I was a jerk to you. To make it up to you, I wanted to help you. I am happy that you do not have to worry about this any longer!!

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