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how to write an affidavit


shady77
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ok so I have found out sample affidavits are almost non existent on the internet and the forums

 

can anyone post sample's of affidavit answers and maybe for different kinds of affidavits?

 

  1. counter affidavits
  2. affidavits denying plaintiffs compliant
  3. ect.

here are some of the claims I was hit with and I'm looking for suggestions on how to deny them

 

1. That the Defendant herein is indebted upon open account or pursuant to contract and
defendant accepted same. (Original Account Number xxxx-1234)

2.performance has been completed and defendant agreed to pay the account

3.There is presently due and owing, over and above all legal counter claims, the sum of
$

4.Plaintiff requests judgment for $


I know there is more but if we keep adding them it will make filling out these forms a lot easier

 

for me I'm confused are affidavits denying a plaintiffs complaint/claim denied in the same fashion as affirmative defenses?

can you use affirmative defenses? do you include compiled laws or case laws to back up you're denial? I know these questions might sound dumb but I'm trying to learn instead of guess

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1. That the Defendant herein is indebted upon open account or pursuant to contract and

defendant accepted same. (Original Account Number xxxx-1234)

Denied.  Defendant has been provided with no evidence supporting this claim.

2.performance has been completed and defendant agreed to pay the account

Denied. 

3.There is presently due and owing, over and above all legal counter claims, the sum of

$

Denied. Defendant has been provided with no evidence supporting this claim.  Defendant demands strict proof.  

4.Plaintiff requests judgment for $

 Objection.  Defendant has been provided with no evidence supporting this complaint.

 

It's really not that difficult.  

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Denied.  Defendant has been provided with no evidence supporting this claim.

Denied. 

Denied. Defendant has been provided with no evidence supporting this claim.  Defendant demands strict proof.  

 Objection.  Defendant has been provided with no evidence supporting this complaint.

 

It's really not that difficult.  

admin thank you so much, for me I have made mistakes submitting stuff to the court in the beginning then find out I did or said something wrong just trying to take precaution before I submit anything  but I hope this will be useful to other people as well thanks again

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for me I'm confused are affidavits denying a plaintiffs complaint/claim denied in the same fashion as affirmative defenses?

can you use affirmative defenses? do you include compiled laws or case laws to back up you're denial? I know these questions might sound dumb but I'm trying to learn instead of guess

 

An affidavit is a statement of the facts as you believe them to be.

The Plaintiff's affidavit states the facts of the case as they want the court to see them.

Your counter-affidavit should state the facts as you want the court to see them; generally, denying their claims paragraph by paragraph.

In Michigan, your affidavit will have to be notarized and filed within 10 days of filing of your answer (MCL 600.2145)

You do not use affirmative defenses in an affidavit and generally do not need to include case law.

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An affidavit is a statement of the facts as you believe them to be.

The Plaintiff's affidavit states the facts of the case as they want the court to see them.

Your counter-affidavit should state the facts as you want the court to see them; generally, denying their claims paragraph by paragraph.

In Michigan, your affidavit will have to be notarized and filed within 10 days of filing of your answer (MCL 600.2145)

You do not use affirmative defenses in an affidavit and generally do not need to include case law.

so I assume the same holds true for submitting an affidavit with a MSJ denying the plaintiffs claims? I will be filing this right after I have it notarized that's for sure

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This thread does not make it very clear what has evolved in your case so far.

 

Are you filing a Defendants Motion for Summary Disposition or are you answering Plaintiff's Motion for Summary Disposition or are you answering Plaintiff's complaint?

 

If you are filing your own Summary Disposition ........ all you need is your affidavit.

 

If you are talking about filing an Opposition to Plaintiff's Motion for Summary Disposition and they filed an affidavit in support of their motion; you are correct.

 

If you are answering the Plaintiff's original complaint; a timely filed affidavit denying Plaintiff's contentions should create a triable issue of material fact (if the judge knows the rules .... you may have to educate him/her). MCL 600.2145 would apply here.

 

Any affidavit in Michigan has to be notarized which, effectively, puts you under oath.

 

I'm pretty sure that MCL 600.2145 (the 10 day rule) only applies to an answer to a complaint for open account or account stated allegations.

 

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Denied.  Defendant has been provided with no evidence supporting this claim.

Denied. 

Denied. Defendant has been provided with no evidence supporting this claim.  Defendant demands strict proof.  

 Objection.  Defendant has been provided with no evidence supporting this complaint.

 

It's really not that difficult.  

Technically under Michigan Rules of CP, you cannot object to a Plaintiff's allegation or claim...you can deny, but you need to state wht you will rely on s a defense.

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CIT Bank and Web Bank are using Utah as their home state. The Usuary Laws in Utah state that a company extending credit cannot charge more than 10% per annum unless the contract states otherwise, then the agreed upon rate is legally binding.

I looked at the Web Bank (Dell Account) Terms and Conditions and there was no reference to any interest rates. On the Midland account statement it shows an interest rate of 15% with no reference to an under lying agreement..Even if they try to use the National Banking Act, I do not believe that Dell or Midland can apply an interest rate greater than the rate based upon Utah law.

CIT Bank is a state chartered bank of Utah...Thus, the National Banking Act should not apply since they are not a nationally chartered bank!!

http://www.dfi.utah.gov/bkslist.htm

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600.2145 Open account or account stated; proof, counterclaim.

 

Sec. 2145.

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, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.


History: 1961, Act 236, Eff. Jan. 1, 1963

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  • 2 weeks later...

CIT Bank and Web Bank are using Utah as their home state. The Usuary Laws in Utah state that a company extending credit cannot charge more than 10% per annum unless the contract states otherwise, then the agreed upon rate is legally binding.

I looked at the Web Bank (Dell Account) Terms and Conditions and there was no reference to any interest rates. On the Midland account statement it shows an interest rate of 15% with no reference to an under lying agreement..Even if they try to use the National Banking Act, I do not believe that Dell or Midland can apply an interest rate greater than the rate based upon Utah law.

CIT Bank is a state chartered bank of Utah...Thus, the National Banking Act should not apply since they are not a nationally chartered bank!!

http://www.dfi.utah.gov/bkslist.htm

 

 

 

That's a good basis for a countersuit for illegal interest. Also the basis for a complaint to the state banking commission and the AG. They could be in big trouble without that written agreement specifying a higher interest rate.

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  • 4 weeks later...

Update on my MSJ hearing today went ok but not as I had expected:

besides being a nervous wreck as I approached my side of the desk he immediately had me state my case so I did everything was going good he was listening to me talk for about 5 min then he stopped me and asked if I was denying the amount that midland was claiming or was I denying the account all together so I informed him that I was denying the account so he said lets stop right there are you telling me you never made a purchase with dell for a computer? Getting even more nervous I stated to the judge I have made numerous purchases from dell over the past 10 years! He asked have you ever charged anything with dell (scared out of my mind because of his tone of voice) I said yes I have your honor, then he quickly set me at ease by saying all I need to do is find out what your defending he went on to say so the facts are you have charged goods with dell in the past but you have no idea if the debt midland is suing you for is the exact debt you may or may not of had with dell is that correct? I said yes midland has not only proved that they own any debt of mine they also have not provided any of the statements of the terms and conditions of the alleged debt they are suing me for. The judge asked if I had anything further I said yes so I continued to state my claims in the MSJ and my own notes the judge stopped me and said you MSJ was scheduled for 15 min and you are now at 25 min and I still have not heard from the other side yet so basically I figured that was his way of saying shut up. So he asked the other side if he had anything to say (midlands attorney via stillman) he said not much your honor except the statements the defendant is asking for should be allowed time for discovery to end “at that moment I wanted to interrupt and tell him discovery was over” but I figured I would save it for the end and give him the chance to talk then thinking the judge would give me a chance to speak but to my surprise the judge denied my motion and denied midland there request to grant them a judgment and he looked at me and said pre-trial is set for such and such a date and that will give him time to read into my motion and evidence some more and then said you are excused..so I didn't get a chance to tell the judge discovery was over but I’m not sure if that would have helped me or not? As we were walking out going down the stair well I asked the attorney if he worked for stillman he was polite and stopped to talk to me he said no I don't as a matter of fact I know nothing about the case as you can tell from being in the court room he said stillman called him this morning last minute briefed him on what was going on and e-mailed him a couple papers but that was it

 

 

on a good note the lawyer that stillman hired locally actually stood up for me as I was explaining to the judge that the plaintiff has failed to prove a breach of contract the judge said to me that the plaintiff never stated anything about breach of contract and the lawyer spoke up and said actually your honor they did make statements in there complaint referencing breach of contract so the defendant is correct! 

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Things dont always go as planned, but no MSJ for Midland!! and he did not completely dismiss your MSJ..He set it off to the side to the next court date and he might actually read it!! IS that the one I put together for you?

You just knocked out one of their legs and you have a fair judge.

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Things dont always go as planned, but no MSJ for Midland!! and he did not completely dismiss your MSJ..He set it off to the side to the next court date and he might actually read it!! IS that the one I put together for you?

You just knocked out one of their legs and you have a fair judge.

yes it is the one you did, and my greatest thanks to you for it every day! now that I think about it your right he only denied stillmans request of grant for judgment as pleaded in there response of the MSJ.

 

not sure what to expect now or what I should be studying up on for the court date?

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