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Stellar Recovery Cont....Need help with Arguments for MSJ Opposition


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This is a continuance to my previous thread on my wife's suit with Stellar Recovery. First, I sent out discovery Rogs and Doc request. The Rogs, they objected to every single one.

 

Here is what they provided in terms of docs 1) Bill of Sale with three aditional docs:

 

A) A amount purchased for 4000 accounts and how funds will be recevied (Closing Statement)

B) Account Schedule

C) A data print out providing the entire account history for my wife's account

 

There wasnt an affidavit attached to the complaint or to the MSJ.

 

The sole argument made by Plaintiff is a Breach of Contract.

 

MSJ under MCR 2.116©(9) and ©(10)...(9) is a lack of a valid defense, which is easy to defeat.

 

Help me formulate some arguments to help defeat the MSJ.

 

I have never seen a case where a JDB was able to print out in data form, not account statements the entire history of the account.

 

SInce this is not a record made during the regular course of business, how should I use MRE 803(6) and MRE 902(11)

 

The basis of the breach claim is

 

breach of contract claim that (1) a contract existed between the parties (2) terms of the contract (3) Defendant breached the contract

 

This is taken from here:

 

The Plaintiff needs to prove four separate parts that make up a contract as well to prove their breach of contract claim that (1) a contract existed between the parties (2) terms of the contract (3) Defendant breached the contract and (4) that the breach caused injury. Platsis v. E.F. Hutton & Co., Inc 642, F Supp. 1277 Dist. Court WD Michigan (1986)

 

 

Like the typical JDB attorney, they do not quote the entire breach of contract claim.

 

 

 

Thanks everyone,

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This is a continuance to my previous thread on my wife's suit with Stellar Recovery. First, I sent out discovery Rogs and Doc request. The Rogs, they objected to every single one. did you file your objection to their objections?

 

Here is what they provided in terms of docs 1) Bill of Sale with three aditional docs:

 

A) A amount purchased for 4000 accounts and how funds will be recevied (Closing Statement)

B) Account Schedule

C) A data print out providing the entire account history for my wife's account Since they do not have personal knowledge of how this account was prepared and how the entire case history was created they can not guarantee its accuracy with no supporting documentation from the person that created this accounting of this account its lack merit. How can the court know for certain it was not created by the Plaintiff themselves, it was created for the sole purpose of litigation and does not qualify under the business exception to the hearsay rule.

 

There wasnt an affidavit attached to the complaint or to the MSJ. Is discovery still ongoing? if it is a summary judgment ruling can not be made, After you beat the msj file your motion for leave of court to amend you discovery requests, or file defendants second set of discovery requests, which ever your court rules allow.

 

The sole argument made by Plaintiff is a Breach of Contract. If they claim breech of contract was the contract affixed to the complaint, did they provide the contract during discovery? Without the contract they can not establish how the contract was breached. Did they provide their right of assignment? If they did not they do not have standing to even sue. Did you ask for the bill of particulars? When breech of contract is claimed the defendant has a right to ask for a bill of particulars.

 

MSJ under MCR 2.116©(9) and ©(10)...(9) is a lack of a valid defense, which is easy to defeat.

 

Help me formulate some arguments to help defeat the MSJ.

 

I have never seen a case where a JDB was able to print out in data form, not account statements the entire history of the account.

 

Since this is not a record made during the regular course of business, how should I use MRE 803(6) and MRE 902(11)

 

The basis of the breach claim is

 

breach of contract claim that (1) a contract existed between the parties (2) terms of the contract (3) Defendant breached the contract

 

This is taken from here:

 

The Plaintiff needs to prove four separate parts that make up a contract as well to prove their breach of contract claim that (1) a contract existed between the parties (2) terms of the contract (3) Defendant breached the contract and (4) that the breach caused injury. Platsis v. E.F. Hutton & Co., Inc 642, F Supp. 1277 Dist. Court WD Michigan (1986)

 

 

Like the typical JDB attorney, they do not quote the entire breach of contract claim. That is why you ask for a bill of particulars. The reason they did not quote the entire breech is because they do not have the contract signed by you.

 

 

 

Thanks everyone,

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Is discovery still ongoing? if it is a summary judgment ruling can not be made,

 

Even if discovery has not been completed, a summary judgment can still be granted.  It depends upon whether or not the requested discovery is relevant to the case. 

 

If a party believes that summary disposition is premature because discovery has not been completed, that party must at least assert that a dispute exists and support the allegation with some independent evidence. Davis v Detroit, 269 Mich App 376, 379-380; 711 NW2d 462 (2005). A party is not entitled to discovery based on mere conjecture; otherwise discovery would be just a "fishing expedition." Id. at 380.

 

 

 

If they claim breech of contract was the contract affixed to the complaint, did they provide the contract during discovery?

 

If this is a credit card account, there is no written contract.  

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I have never seen a case where a JDB was able to print out in data form, not account statements the entire history of the account.

 

Check out Citibank, NA v. Muldrow and FIA Card Services v. Weikle.  They are unpublished, but they are both from the MI Court of Appeals and specified what was provided by the OCs to prove a breach of contract which included cc statements.  Your plaintiff has not is not an OC and has not provided anything from the OC.

 

 

 

SInce this is not a record made during the regular course of business, how should I use MRE 803(6) and MRE 902(11)

 

 

Even if the JDB had provided an affidavit in an attempt to authenticate the data printout under 803(6), the data printout would not qualify as a business record because it's not made in the regular course of business.  In this case, it was a summary created by the JDB solely for the purpose of litigation.  In addition, there's no documentation to back up the information included in that printout.

 

In general, a record "prepared for the purpose of litigation" lacks the trustworthiness that is the hallmark of a document properly admitted pursuant to MRE 803(6). 29A Am.Jur.2d, Evidence, § 1313, pp. 720-721. Michigan adheres to this general rule. People v. Cortez, 131 Mich.App. 316, 330, 346 N.W.2d 540 (1984) ("documents prepared for use in litigation are excluded by this qualification [i.e., trustworthiness]"); Attorney General v. John A. Biewer Co., Inc., 140 Mich.App. 1, 17, 363 N.W.2d 712 (1985) ("documents prepared for use in litigation are not admissible as records of regularly conducted activities"). As explained in Biewer, "where the record is prepared for the purpose of litigation, the record does not have the inherent trustworthiness that a record kept in the regular course of business does." Id.

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This is not a credit card. There were not any actual account statements supplied during discovery. The only shred of evidence providing that shows 1) my wife's name 2) the account number 3) payment history is a data file that looks like it was printed from a data base.

 

The biggest weakness is there is no affidavit to authenticate the documents. All the docs attached to the MSJ are not made during the regular course of business.

 

As of now, discovery is still ongoing. The court set discovery for 60 days. How should I handle the attorney objecting to even the simpliest request to provide the name and address of a records keeper for Stellar Recovery?

 

The attorney did state in their witness list that a custodian of records would testify at trial.

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This is a continuance to my previous thread on my wife's suit with Stellar Recovery. First, I sent out discovery Rogs and Doc request. The Rogs, they objected to every single one. did you file your objection to their objections?

 

Here is what they provided in terms of docs 1) Bill of Sale with three aditional docs:

 

A) A amount purchased for 4000 accounts and how funds will be recevied (Closing Statement)

B) Account Schedule

C) A data print out providing the entire account history for my wife's account Since they do not have personal knowledge of how this account was prepared and how the entire case history was created they can not guarantee its accuracy with no supporting documentation from the person that created this accounting of this account its lack merit. How can the court know for certain it was not created by the Plaintiff themselves, it was created for the sole purpose of litigation and does not qualify under the business exception to the hearsay rule.

 

There wasnt an affidavit attached to the complaint or to the MSJ. Is discovery still ongoing? if it is a summary judgment ruling can not be made, After you beat the msj file your motion for leave of court to amend you discovery requests, or file defendants second set of discovery requests, which ever your court rules allow.

 

The sole argument made by Plaintiff is a Breach of Contract. If they claim breech of contract was the contract affixed to the complaint, did they provide the contract during discovery? Without the contract they can not establish how the contract was breached. Did they provide their right of assignment? If they did not they do not have standing to even sue. Did you ask for the bill of particulars? When breech of contract is claimed the defendant has a right to ask for a bill of particulars.

 

MSJ under MCR 2.116©(9) and ©(10)...(9) is a lack of a valid defense, which is easy to defeat.

 

Help me formulate some arguments to help defeat the MSJ.

 

I have never seen a case where a JDB was able to print out in data form, not account statements the entire history of the account.

 

Since this is not a record made during the regular course of business, how should I use MRE 803(6) and MRE 902(11)

 

The basis of the breach claim is

 

breach of contract claim that (1) a contract existed between the parties (2) terms of the contract (3) Defendant breached the contract

 

This is taken from here:

 

The Plaintiff needs to prove four separate parts that make up a contract as well to prove their breach of contract claim that (1) a contract existed between the parties (2) terms of the contract (3) Defendant breached the contract and (4) that the breach caused injury. Platsis v. E.F. Hutton & Co., Inc 642, F Supp. 1277 Dist. Court WD Michigan (1986)

 

 

Like the typical JDB attorney, they do not quote the entire breach of contract claim. That is why you ask for a bill of particulars. The reason they did not quote the entire breech is because they do not have the contract signed by you.

 

 

 

Thanks everyone,

Gunny,

 

They did not attach the contract or terms and conditions to the complaint or supply it during discovery. In their complaint, they stated it was in possession of the Defendant. We denied being in possession of the contract in an affidavit.

 

In Michigan, I found a bill of particulars for criminal cases, but nothing for civil.

 

Now, I am going to send out requests for admissions. I will wait for them to object to each one. The Rogs and request for docs was a straight objection as braod, overly vague and relevancy.

 

Could I use an unconstested affidavit against the Plaintiff. The only affidavit is the one I attached to my wife's answer.

 

Thanks.

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I forgot one other thing, there was a letter supposedly from the OC stating "Welcome to Beneficial. On Nov 4, 2008, $5,000 was wired to your bank account ending in XXXX for direct deposit. Please remember your payment must me made each month...etc."

 

The last 4 digits of the account number are showing, with a promo authorization code.

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I forgot one other thing, there was a letter supposedly from the OC stating "Welcome to Beneficial. On Nov 4, 2008, $5,000 was wired to your bank account ending in XXXX for direct deposit. Please remember your payment must me made each month...etc."

 

The last 4 digits of the account number are showing, with a promo authorization code.

You will challenge the letter and its authenticity, make them prove it came from the OC, just because the letter head is in the OC's name don't mean it came from the OC, it is hearsay any how, printed for the sole use in litigation.

 

Send discovery again, and if they object filed a motion to strike as evidence, if they object to rogs file a motion to deem admitted make sure you include a question that they do not and can not produce said contract. They can not rely on you to produce evidence that proves their case, they filed suit they should have the contract.

 

1) Admit that you do not have the original signed contract that you claim the defendant breached.

2) Admit that since you are unable to produce a contract, that you are relying on the defendant to produce a contract that you can use in proving your case.

3) Admit that when a claim for breach of contract arises the contract is the governing document.

4) Admit that since you can not produce the contract that you allege has been breached you have no standing to bring a claim against the defendant.

 

They will object but we will deal with it when they do.

 

For the msj all you need to do is prove one triable  issue of fact exists.

Start with the contract its self. The Plaintiff has not produced the contract that they claim the defendant breached. When a suit for breach of contract is brought the contract is the governing document. When a suit if filed the plaintiff should have all the evidence in their possession and not rely on the defendant to prove their case for them. The defendant has already stated that he has no such contract in his possession. Burden of proof that a contract exists rests with the complaining party. If they can not produce the contract they can not prove one exists. Summary judgment should be denied.

 

If a contract did exists between the defendant and the original creditor, the Plaintiff has offered no such proof that they have rights by assignment. No rights of assignment documentation has been offered by the plaintiff to the court. If the plaintiff can not prove rights of assignment they do not have standing to even bring a suit. motion for summary judgment should be denied.

 

The plaintiff has offered a data printout of the alleged account. There is no proof offered by the plaintiff as to where this printout came from, nor is there any supporting evidence to prove that the printout is accurate and reliable. For all the defendant and the court knows the Plaintiff could have produced the document of their own accord. Summary should be denied.

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I am going to have my wife send out the Request for Admissions today.

 

I wrote the basis of her opposition over the weekend. I hammered the lack of authentication and trustworthiness of the docs the Plaintiff provided.

 

I still laugh at these JDB attorneys....the paralegal did not cite any caselaw in their MSJ, other than establishing legal standards to which the MSJ is brought upon. Their breach of contract argument made no reference to any caselaw to back their argument that they are entitled to MSJ.

 

I simply countered with the Plaintiff has not brought forth any admissible evidence, the only admissible evidence is the Defendant's affidavit that denied having a contract with Plaintiff's assignor, the amount claimed as being owed...etc. Then backed that with a few caselaws on how the Plaintiff either failed to authenticate docs or show how the docs were created.

 

I will wait to see how they respond to the admissions...as Gunny said, they will likely object to each one. I have already used some of their objections in the oppositions, where they claimed they do not expect to introduce any affidavits going forward. That right there shows they cannot authenticate any evidence under MRE 803(6) and MRE 902(11).

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  • 4 weeks later...

Today, the Plaintiff's attorney finally sent back their responses to the Request for Admissions. Remember, all of these Requests were due to the Plaintiff not providing the requested documents during discovery.

 

1. Admit that Plaintiff is not in possession of the signed contract that was executed between Defendant and Plaintiff's assignor?

 

ANSWER: Plaintiff denies for the same is untrue.

 

2. Admit that Plaintiff is not the direct assignee of the OC?

 

ANSWER: Objection as to relevancy. WIthout waiving its objection. after reasonable inquiry, the information known or readily obtainable is insufficient to enable PLaintiff to admit or deny as the said terms is not defined herein.

 

3. Admit Plaintiff created or is using documents in this case for the sole purpose of litigation?

 

ANSWER: PLaintiff denies for the same is untrue.

 

4. Admit that when a claim is based upon a breach of contract arises, the contract is the governing document?

 

ANSWER: Plaintiff neither admits or denies for lack of information sufficient to form a belief.

 

5. Admit that Plaintiff's bill of sale of assignment documents have no written warranties or guarantees of collectability from the original creditor?

 

ANSWER: Same objection as above

 

6. ADMIT that the account is based upon a contract between the Defendantand the Original Creditor?

 

ANSWER: Admit

 

7. ADMIT that Plaintiff does not have a witness with forst hand knoweldge of how the contract was formed?

 

ANSWER: Plaintiff denies....etc.

 

8. ADMIT the Plaintiff's witness will not be present to testify at trial?

 

ANSWER: Plaintiff denies...etc.

 

9. ADMIT that PLaintiff does not have the terms and conditions that govern the account between defendant and OC?

 

ANSWER: Plaintiff denies for the same is untrue.

 

They do not provide this documentation during discovery and now they are claiming they have the documents. Before I can motion the court to compel discovery, there has to be a good faith attempt to confer with the other party. I put together a letter that will be mailed out tomorrow asking for specific reasons as to why the Plaintiff can not truthfully answer the requests.

 

Please provide any feedback.

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Today, the Plaintiff's attorney finally sent back their responses to the Request for Admissions. Remember, all of these Requests were due to the Plaintiff not providing the requested documents during discovery.

 

1. Admit that Plaintiff is not in possession of the signed contract that was executed between Defendant and Plaintiff's assignor?

 

ANSWER: Plaintiff denies for the same is untrue.

 

2. Admit that Plaintiff is not the direct assignee of the OC?

 

ANSWER: Objection as to relevancy. WIthout waiving its objection. after reasonable inquiry, the information known or readily obtainable is insufficient to enable PLaintiff to admit or deny as the said terms is not defined herein.

 

3. Admit Plaintiff created or is using documents in this case for the sole purpose of litigation?

 

ANSWER: PLaintiff denies for the same is untrue.

 

4. Admit that when a claim is based upon a breach of contract arises, the contract is the governing document?

 

ANSWER: Plaintiff neither admits or denies for lack of information sufficient to form a belief.

 

5. Admit that Plaintiff's bill of sale of assignment documents have no written warranties or guarantees of collectability from the original creditor?

 

ANSWER: Same objection as above

 

6. ADMIT that the account is based upon a contract between the Defendantand the Original Creditor?

 

ANSWER: Admit

 

7. ADMIT that Plaintiff does not have a witness with forst hand knoweldge of how the contract was formed?

 

ANSWER: Plaintiff denies....etc.

 

8. ADMIT the Plaintiff's witness will not be present to testify at trial?

 

ANSWER: Plaintiff denies...etc.

 

9. ADMIT that PLaintiff does not have the terms and conditions that govern the account between defendant and OC?

 

ANSWER: Plaintiff denies for the same is untrue.

 

They do not provide this documentation during discovery and now they are claiming they have the documents. Before I can motion the court to compel discovery, there has to be a good faith attempt to confer with the other party. I put together a letter that will be mailed out tomorrow asking for specific reasons as to why the Plaintiff can not truthfully answer the requests.

 

Please provide any feedback.

 

Sounds like you're about to have some fun. 

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1. Meet & Confer letter ..... for sure.

2. Undecided about a MTC ......... do you really want them to produce? On the other hand ..... I'm unclear on the ramifications of trying to preclude without compelling first, especially since they say they have it.

3. Motion to preclude.

 

Just my thoughts ..........but I know a lot less than you do.

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I am sending out the Letter to Confer tomorrow. I am giving the Plaintiff only 1 week to respond back in writing. Since their are no time frames in the RCP.

 

If they do not respond or respond with more objections, then I am going to file a motion to preclude. My wifes MSJ hearing is in 2 weeks. I can at least show the court we tried in good faith to confer with the Plaintiff. Then, by showing the Plaintiff did not permit discovery, at trial the Plaintiff could not prove their claims if the court granted a motion to preclude or limine to the Defendant.

 

Heck, maybe the judge will get ticked off at the Plaintiff enough to deny their Motion from that alone.

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Seems to me that if plaintiff didn't provide the contract .......... terms and conditions are not apparent. There may not even be a stipulation to repay the alleged debt.

If you have even a half-way cogent judge he / she should deny MSD based on that alone.

 

I'm sure that I'm just reiterating your thoughts ...........

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Seems to me that if plaintiff didn't provide the contract .......... terms and conditions are not apparent. There may not even be a stipulation to repay the alleged debt.

If you have even a half-way cogent judge he / she should deny MSD based on that alone.

 

I'm sure that I'm just reiterating your thoughts ...........

He should based upon that alone, but this judge is not the sharpest tool in the shed.

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I had my wife send out her opposiiton today with her Letter to Confer. My wife was with her mother and she dropped off a copy to the court as well. The court clerk was impressed with the format I used and asked if my wife was an attorney. She said that I wrote all the pleadings. The clerk told her that these are better than most of the pleadings from attorneys and that I should go to law school.

 

I am giving the Plaintiff one week to respond to the letter. If I do not get a response, then after he MSJ hearing I am filing a motion to preclude evidence and a motion to deem admitted admissions for not following RCP

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  • 2 weeks later...

Tomorrow is my wife's MSJ hearing. She has spent a total of less than 1 second learning what I wrote and what to say. This should be an easy win for Stellar's attorney. Unless the judge actually will rule based upon the pleadings, that is the only shot she has.

 

I told her if she does not at least put up a good fight, I will be filing for divorce. She can ruin herself all she wants, but she will not put me back into a hole of which I have dug myself out of once before.

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Sorry to hear that. I have no idea how my wife would handle having to deal with this stuff. I'm much more proactive than she is.

 

This is her 3rd time in court in the last year and a half. She should no longer be scared. She should by now, know the games these attorneys play. The first two times

 

1) Lost at MSJ - she did not even put up a fight.

2) Agreed to a small amount to pay.

 

She did not listen to me at all the first time. She followed everything I told her to do up until trial on the 2nd case. Both case were brought by an OC

 

She thinks she can ad lib in court and think the judge will buy it. This 3rd case is a JDB and I told her up front that she will not pay a JDB.

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It's hard when you have put so much time into helping someone, and they do not do anything to help themselves.  I've noticed here that the people posting for help, some take that help and apply and fight.  You see those same people posting wins.  Then others that do not do anymore than the basic, they do not put any time into it, thinking that the persons here that spent the time fighting their case will have won for them.  Those are the ones you don't see again, they lose, and then don't understand why--

Good luck to your wife, maybe the MSJ will be denied, and she will take an interest into winning the case.

I personally have better things to spend my money on than giving it to a JDB who did nothing but buy my account for 1/100 of what was owed.  If they lose, they did it to themselves--kinda like gambling.  As far as I am concerned I do not owe them a dime.

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,

It's hard when you have put so much time into helping someone, and they do not do anything to help themselves.  I've noticed here that the people posting for help, some take that help and apply and fight.  You see those same people posting wins.  Then others that do not do anymore than the basic, they do not put any time into it, thinking that the persons here that spent the time fighting their case will have won for them.  Those are the ones you don't see again, they lose, and then don't understand why--

Good luck to your wife, maybe the MSJ will be denied, and she will take an interest into winning the case.

I personally have better things to spend my money on than giving it to a JDB who did nothing but buy my account for 1/100 of what was owed.  If they lose, they did it to themselves--kinda like gambling.  As far as I am concerned I do not owe them a dime.

 

I know this judge. he will not tolerate her not knowing what to do. He will award judgment to the Plaintiff, if she does not know civil procedure purely for wasting his time. The simple fact is if we stayed married, then I cannot progress financially when she is too busy paying judgments through garnishments. I know this JDB has not shown any evidence that entitles them to a judgment. As I tell my wife, you can be stupid all you want as long as you are only hurting yourself. When you are stupid and it impacts me, then that is when I draw the line. I will not be an innocent party who is injured by your own stupidity. I will remove myself from the marraige to avoid having to be hurt financially by your own doing.

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