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How Much Time Do I Have To File A Motion To Strike An Affidavit In Michigan


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Greeting's, I have only a few days left to answer my complaint in my lawsuit as Im being sued by LVNV for $2000.00 bucks. Im working on my answers and my own affidavit and want to hand them in today.

 

My question is how long do I have to file a motion to strike there "robo signed" affidavit because I don't have the money to do it right now?

 

Also, I'd like to know if I should offer any affirmitive defenses under my complaint answers?

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First, the Plaintiff has not attempted to submit the affidavit as evidence as of yet. So a Motion to Strike would be pre-mature and the court will deny it. It does not cost anything in Michigan to file your answer. It costs $20 to file a motion.

 

The two main defenses you will use is 1) failure to state a claim and 2) Lack of Standing. You do not argue those in your answer. Since we do not know what is in the complaint or what was attached to it, it is hard to provide suggestions. When you file a counter-affidavit, assuming the Plaintiff's affidavit complies with Michigan Law, the dueling affidavits offset one another. The Plaintiff now has to prove their case with actual evidence. If you do not file a counter-affidavit and their affidavit complies with MI law, then the court will consider that Prima-Facie evidence and you will have to show actual evidence that a genuine issue of material fact exists.

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I read through one of your prior threads. The affidavit does not comply with MCL 600.2145. I would still file your own affidavit. There is no need to file a motion to strike it.

 

Your answers are close enough to MI RCP, so you will not have to change your answer prior to filing. At least you did not object to their allegations.

 

Technically, I would not file affirmative defenses. In Michigan, denying the allegation per the Supreme Court serves a defense.

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I've been doing some reserch and this is what I have for my answers. I also made an affidavit as well.

 

1. The cause of action arose within the jurisdiction of the Court in the County of -_______.

 

The Plaintiff has provided no evidence in support of this statement and the Defendant lacks knowledge or information sufficient to form a belief as to the truth of this statement. Strict Proof is required.

 

2. Plantiff's LVNV Funding, LLC predecessor in interest is General Electric Capital Corp. Plaintiff has provided no evidence or bill of sale to prove that they are a predecessor in interest of General Electric Capital Corp. and/or has offered no evidence or proof that there exist a valid 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.”

 

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 alledged account was one of the accounts clearly shown in the sale, the Plaintiff lacked standing to sue.

So therefore the Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim and leaves it to the plaintiff to provide strict proof.

 

3. Plantiff assignor allowed Defendant to charge goods and or services on open account, and upon Defendant's promise to pay for same.

 

 Plaintiff has provided no evidence in support of this statement and the Defendant lacks knowledge or information sufficient to form a belief as to the truth of this statement. Strict Proof is required.

 

4. Plantiff's Assignor sent statements on account number XXXXXXXXXXXXXX to the Defendant who did not dispute the charges or object within a reasonable time.

 

 The Plaintiff has provided no evidence in support of this statement and the Defendant lacks knowledge or information sufficient to form a belief as to the truth of this statement. Strict Proof is required.

 

5. Defendant has not paid the balance owing on the account, despite Plantiff and Plantiff's Assignor demands for payment.

 

 Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim and leaves it to the plaintiff to provide strict proof.

 

6. Defendants failure to pay has resulted in default on the account.

 

 Defendant has insufficient information to affirm or deny and leaves it to the plaintiff to provide strict proof.

 

7. Plaintiff's assignor has completed performance and rendered an account stated; Affidavit attached.

 

 The Plaintiff has provided a high volume reproduction "Robo-signed" form letter copy that claims that a person representing the Plaintiff has Knowledge of the Plaintiff's business records, and with no knowledge of any business records from an originator of an account, this is not evidence, but HEARSAY. The Plaintiff has also failed to offer an affidavit supporting a bill of sale that needs to be made by the originator of the alledged account along with a signed contract between the Defendant and that originator in order to prove that they are an owner of assignment and that an assignment existed.

 

 In Michigan, a Plaintiff debt buyer seeking to collect a debt based upon an assignment has the burden of proof to show that the assignment is valid.  See, Palisades Collection, LLC v Taylor, Hudson & Keyse, LLC v Gregory, Consolidated Nos 08-684-CZ, 08-1012-CK-3 Saginaw County Circuit Court (2008), (holding that Assignee plaintiff must present competent, admissible evidence sufficient to convince a reasonable fact finder by a preponderance of the evidence; See also Weston v Card, 96 Mich 373, 377-378; 56 NW 26 (l893).

In a recent case of LVNV Funding, LLC v. Kevin Mastaw, the Tennessee Court of Appeals at Nashville struck a blow to all debt purchasers that sue Tennessee consumers.  No. M2011-00990-COA-R3-CV - Filed April 30, 2012.  The Court ruled and affirmed the position that – essentially – robo-signed Affidavits on sworn accounts are indeed hearsay inasmuch as they are not “business records”. 

The ruling can be reviewed at http://www.tncourts.gov/sites/default/files/lvnvfunding_opn.pdf

 

 Also, the so called affidavit that is dated December 28, 2012 is STALE by not being made within 10 days preceeding the filing of the alledged complaint or issuance of the writ (summons). MCL 600.2145. If the affidavit is made prior to a 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).

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

 

8. Defendant is now justly indebted to Plaintiff over and above all legal counterclaims, in the amount of $2,000.00

 

The Plaintiff filed this claim and the Plaintiff has failed to prove that it has standing to bring this claim. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim and leaves it to the plaintiff to provide strict proof.

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YOu answer one of three ways:

 

1) Defendant Admits to this allegation as being true.

2) Defendant Denies this allegation as being true.

3) Defendant is without information or knowledge sufficient to form a belief, which has the effect of a denial.

 

Do not use caselaw or try to argue it. If you deny, state why you denied the allegation. It could be the Plaintiff has not supplied any evidence or documentation or some other possible issue that keeps you answering.

 

You need to change the answer before you submit it. Do not turn an answer into a Motion to Dismiss or an Opposition to summary judgment.

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Wait! I need help. This is what I have for the affidavit:

 

I, Debtor2013, under "penalty of perjury" pursuant to the laws of the State or Michigan and Michigan Rules of Civil Procedure herein after “Declarant”, “Defendant”, “Alleged Borrower”, “Alleged Account Holder”, depose and declare, that the declaration used in lieu of affidavit, allowed by these rules, avers that the submittal of the following statements, made herein, are true and correct to the best of my knowledge, and not meant to mislead.

 

DENIAL OF DEBT
Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim and leaves it to the plaintiff to provide strict proof.

Plaintiff is allegedly the assignee of the original creditor. Plaintiff alleges that "Pursuant to the Affidavit of the Assignment of Rights dated December 28, 2012 it is the assignee of value". However, since the assignor had no personal knowledge or actual business records of the original creditor, plaintiff is seeking judgment based on hearsay. Its “affidavit of assignment” is therefore worthless as evidence in this action. Neither the affidavit nor the complaint sets forth a cause of action for either an account stated or a breach of contract. Defendant has no reasonable basis for anything other than a general denial. Plaintiffs Subject Affidavit lacks Propriety or Trustworthiness and is Stale.
1.

 

Plaintiff's Affidavit does not provide any information that would allow the Court to determine if the alleged account of the Defendant was one of the accounts sold or assigned to the Plaintiff. Without any indicia of ownership that would sufficiently identify the true owner of the account at the time that Plaintiff filed this action and the Plaintiff is unable to prove that it has standing to bring the action. Plaintiff's standing to invoke the processes of the Court is missing an essential element of proof and it therefore lacks foundation and renders the litigation a nullity. Also, the document in itself being stale (Dated December 28th, 2012 is well beyond the 10 day Michigan rule by not being made within 10 days preceding the filing of the alleged complaint or issuance of the writ (summons). MCL 600.2145. If the affidavit is made prior to a 10 day period, the affidavit does not serve as Prima Facie evidence and the court cannot put weight of evidence towards that affidavit.
 

2.
 

Plaintiff has provided no proof that the Affidavit of Sale is an original document other than a high volume reproduction of a "Robo-signed" form letter, without any logo or header branding it not a true copy of any bank document, and therefore is unauthentic and a inadmissible “facsimile” record, which are computer-generated, non-image documents. Records that are generated by computer require testimony from a person familiar with the computer system who can testify that the output is an accurate reflection of the input in order to lay a foundation. In this post robo-signing world the burden is on the debt collector to show it owns the debt and to show the consumer is liable for the amount the debt collector asserts. The debt collector's (LVNV Funding LLC) say-so is not enough.
 

3.
 

Plaintiff relies on an affidavit executed by Juli Obrien, who identifies herself as an Authorized Representative for the Debt Buyer (LVNV Funding LLC). She does not claim to have any personal knowledge of the transactions underlying this complaint but rather states Affiant acknowledges that, in making this affidavit, Buyer is now the owner of the account and Creditor has no further interest in the account or the debt underlying the account for any purpose. Any such affidavit is not made sufficient by omitting the fact that it is based on a review of loan records, and if it appears that the affiant did not personally receive or observe the reception of all of the borrower's alleged payments then her statement is of no probative value and Plaintiff has no standing to collect the debt.
 

4.
 

Obrien claims that with her sworn statement buyer is now the owner and by best of Affiants knowledge, information, and belief there is no uncredited payments. There is no mention as to OBrien being a witness who possesses first hand knowledge of bank's record-keeping practices. There is absolutely no testimony to authenticate the documents by "laying a foundation" to show that:
 

1) the documents were created in the regular course of business;
2) the banks' regular course of business included making those documents;
3) the creator of the documents had a business duty to create them; and
4) the documents were created at the time that the transactions reflected took place, or a reasonable time thereafter. 

 

Records are required to be made on or at the time of occurrence therein by, or from information transmitted by, a person having knowledge of those matters, and kept in the ordinary course of an originator of the said account.

Authenticated documents are missing and "person having knowledge" remains unidentified. Business records are of an originator of the account and not Plaintiffs." Business records” must be prepared in the regular course of business, where there is little or no motive to falsify. There is no evidence that there was any relationship between the alleged assigner  and the plaintiff at the time that the records were created.
 

5.
Plaintiff has failed to provide a witness with day to day personal knowledge of business
record entries kept in the ordinary course of the alleged originator of the alleged account record keeping therefore affidavit is based on hearsay of Original Creditor and an Assignee of a Junk Debt buyer. Through Ms. OBrien's affidavit she seeks to establish five facts on which to ground plaintiff's claim:

 

a) that defendant used, or authorized the use of, the credit account which established the alleged debt.
B) that defendant was mailed statements from original creditor and failed to object or dispute charges.
c) that the account was sold and transferred to LVNV Funding LLC.
d) that there was an amount due and plaintiff is entitled to sue as an assignee.
e) That General Electric Capital Corp. has no further interest in the alleged account for any purpose.

 

OBrien's conclusory and insufficient affidavit is not adequate to establish any of these facts. Affidavit essentially consists of a summary of unnamed records from an account of some sort, unaccompanied by records themselves, and unsupported by facts establishing basis of a “Representative's” personal knowledge.
 

6.
Affidavit fails to allege all the material facts on which the liability of the Defendant depends. There is no contract action that exists between Plaintiff and Defendant, there has never been an express of implied agreement between the parties as to amount due, no express or implied promise from the alleged debtor to pay any alleged amount due or "mutual assent" has ever been made, calculated, or audited for accuracy on any alleged balances claimed due and correct, no prior transactions between Defendant and Plaintiff which established a debtor-creditor relationship exist. No breach of promise to pay on a contract has caused damages and no issues exist requiring compromise an/or settlement by Defendant other than dismissal of complaint. Defendant had never had an open account with Plaintiff that has been allegedly converted to account stated by application, payments, account usage, or mutual assent. 

 

7.
Testimony, whether live or in the form of an affidavit, to the effect that the witness has "made  sworn statements" regards origination of General Electric Corp. documents and that the records show that the alleged debtor's alleged account has been charged off. "Representative", OBrien, claims having some connection with the origination of the alleged account, and by the making of affidavit averring "the buyer is the owner" of the alleged account is hearsay and incompetent; rather, the records must be introduced after a proper foundation is provided.

 

8.
OBrien's affidavit summarizing General Electric Capital Corp's "forward Flow" account records, listing names, accounts, and amounts from a large pool of data is insufficient where it did not show the officer's familiarity with the amounts disbursed or collected or provide the
documents upon which she relied as to her conclusion as to the amount due.

 

9.
OBrien''s descriptions of the documents mentioned in her affidavit are unsubstantiated leaving nothing for the Court to rely on. Since the documents are out-of-court statements offered for their truth, OBrien must establish that they fall within an exception to the hearsay rule in order for them to be admissible.... Presumably, OBrien's asking the Court to treat them as business records since she describes herself as being a "Representative" familiar with Plaintiff's business records ... However, no records were attached and any later provided were created not by plaintiff but by Plaintiffs assignor, General Electric Capital Corp. In order to establish a business records foundation, the witness must be familiar with the entity's day to day record keeping practices. OBrian does not claim to be familiar with General Electric Capital Corp's record keeping practices, but only with a sale to a buyer of information electronically transferred or stated by others which plaintiff allegedly purchased.

 

10.
The mere fact that plaintiff obtained the records from General Electric Capital Corp. and then retained them is an insufficient basis for their introduction into evidence. Therefore, the Court cannot rely on any affidavit by Juli Obrien's account statements which were later proffered by Plaintiff in attempt to establish defendant's default and should strike affidavits.

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“I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.”

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However, since the assignor had no personal knowledge or actual business records of the original creditor,

 

 

Where does it say she does? In fact, paragraph 3 says just the opposite, so you defeated your own argument. I think you meant affiant, not assignor. The assignor is the OC. This thing is overkill and argumentative. If you raise 10 points, the whole thing should be no more than 10 sentences, one for each point. This thing reads like a summary judgment motion.

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Okay, how does this look?

 

1. The Plaintiff has provided a high volume reproduction "Robo-signed" form letter copy that claims that a person representing the Plaintiff has Knowledge of the Plaintiff's business records, and with no knowledge of any business records from an originator of an account, this is not evidence, but HEARSAY.
 
2. Plaintiff's Affidavit does not provide any information that would allow the Court to determine if the alleged account of the Defendant was one of the accounts sold or assigned to the Plaintiff.
 

3. The document/affidavit in itself is stale (Dated December 28th, 2012 ) and is well beyond the 10 day Michigan rule by not being made within 10 days preceding the filing of the alleged complaint or issuance of the writ (summons). MCL 600.2145. If the affidavit is made prior to a 10 day period, the affidavit does not serve as Prima Facie evidence and the court cannot put weight of evidence towards that affidavit.

 

4. Plaintiff has provided no proof that the Affidavit of Sale is an original document other than a high volume reproduction of a "Robo-signed" form letter, a junk debt buyer's say-so is not enough.

 

5. Plaintiff relies on an affidavit executed by Juli Obrien, who identifies herself as a Representative for the Debt Buyer (LVNV Funding LLC). She does not claim to have any personal knowledge of the transactions underlying this complaint.

 

6. Obrien claims that with her sworn statement LVNV Funding is now the owner of the alleged debt, but she fails to offer any evidence to support her claim other then she has knowledge of a supposed debt.

 

7. Obrien also did not provide a phone number or address where she could be reached in order to prove that she is a real person and will be able to come to court and testify about her knowledge.

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This is not an affidavit. An affidavit is an account of your side and what facts you dispute. Like the amount Plaintiff is claiming is owed, that you never entered into a contract with XYZ company or their assignor, that you never made payments on the account, you are not in posession of the contract or terms and conditions.

 

All of the arguments you make in the affidavit are arguments you would make in a motion.

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I'll rewrite this a bit. BMC100 can comment as he has forgotten more about MI law than Bruno knows!

 

Okay, how does this look?

 

1. The Plaintiff has provided a high volume reproduction "Robo-signed" form letter copy that claims that a person representing the Plaintiff has Knowledge of the Plaintiff's business records, and with no knowledge of any business records from an originator of an account, this is not evidence, but HEARSAY.

 

The Plaintiff's affidavit is legally insufficient and fails to properly authenticate the documents it supports. Defendant controverts the content of this document in its entirety.
 
2. Plaintiff's Affidavit does not provide any information that would allow the Court to determine if the alleged account of the Defendant was one of the accounts sold or assigned to the Plaintiff.

 

The Plaintiff's affidavit fails to establish standing to sue, a defect which would be fatal to the Complaint.
 

3. The document/affidavit in itself is stale (Dated December 28th, 2012 ) and is well beyond the 10 day Michigan rule by not being made within 10 days preceding the filing of the alleged complaint or issuance of the writ (summons). MCL 600.2145. If the affidavit is made prior to a 10 day period, the affidavit does not serve as Prima Facie evidence and the court cannot put weight of evidence towards that affidavit.

The affidavit fails to satisy the rules of evidence.

 

4. Plaintiff has provided no proof that the Affidavit of Sale is an original document other than a high volume reproduction of a "Robo-signed" form letter, a junk debt buyer's say-so is not enough.

repetitive, eliminate this one

 

5. Plaintiff relies on an affidavit executed by Juli Obrien, who identifies herself as a Representative for the Debt Buyer (LVNV Funding LLC). She does not claim to have any personal knowledge of the transactions underlying this complaint.

Poorly worded. Irrelevant, eliminate

 

6. Obrien claims that with her sworn statement LVNV Funding is now the owner of the alleged debt, but she fails to offer any evidence to support her claim other then she has knowledge of a supposed debt.

Same

 

7. Obrien also did not provide a phone number or address where she could be reached in order to prove that she is a real person and will be able to come to court and testify about her knowledge.

 

 

You didn't ask for it. You need to work on this more.

 

 

Just go point by point. Affiant claims "The sky is Green."  You counter with "The affiant is mistaken. The sky is blue." Stay away from arguments. Affidavits are fact testimony. Stick to facts. Arguments come later.

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At pre-trial, you are not going to argue anything. You save until either you file a MTD or they file a MSJ.

 

Or you could use it directly in your answer as well, if they made reference to the affidavit in their complaint. Since you are filing a counter-affidavit, you would want to put in your answer that you are filing an affidavit to offset the Plaintiff's claims.

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