bambi

being sued, what's next?

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I offered up the 5,000, and I did it in writing CMRRR, so I haven't heard back yet. I'm hoping I won't have to go to the hearing, but I don't know yet. If I haven't heard from them by mon., I plan to fax over another copy of the letter, and see what happens. If I've made up the offer, and they don't respond, do I still have to reply to their motion?

I forgot you were facing the MSD (if that is indeed the case), so yes you should find out what is going on with that, and make sure you have not missed a hearing. If it not too late; you could file an opposition to the MSD (if the settlement doesn't work out). If it does go to settlement; asK the lawyer to notify The court that they are withdrawing their MSD.

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Request for leave to file a dispositive motion. That is what they have filed.

This is the last part of the request they sent in.

11> That proceeding to trial in this matter is unduly prejudicial to Plaintiff.

12. That it is in the interests of justice and judicial economy to allow Plaintiff to bring a dispositive motion before this Honorable Court to reduce the costs of litigation to the parties and the expenditure of resources by the court to address a matter for which there exists no cognizable legal defenses.

WHEREFORE, Plaintiff hereby requests this Honorable Court deny Defendant's Motion to Compel Discovery and grant Plaintiff leave to file a dispositive motion in this matter.

No, I have not looked it up, or called since I sent in the settlement offer. In the settlement offer, I did request that if they were willing to accept this, then would they contact the court to let them know a settlement was reached and they would dismiss the case.

I assumed I would receive a notice from the court if another hearing was scheduled, and I've heard nothing, but I will certainly check on Monday morning. So, at this point, I'm taking it as an actual MSD has not been file, only a request for permission like savior said.

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I would file an opposition to their MSD. Get it ready now. Google MI samples of opposition. When is the hearing scheduled. You have to appear. You can always withdraw your offer and continue to fight and hope you can get a lesser settlement. And they may force you to come up with the whole amt to settle NOT make pmts.  This is the OC . So I would get working on that MOSD

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OK, here are the arguments in the MSD by the Plaintiff.

 

7.  Plaintiff further asserts that this Honorable Court's original dispositive motion cutoff date as passed prior to Plaintiff being able to compile the documents in support of this matter.

8.  Plaintiff has since presented over two years of statements as well as cancelled checks evidencing the account has become "stated" and there were no objections to the balance prior to those payments.

9.  That the final balance on the account is consistent with the amount prayed for in the Complaint.

10.  That the evidence now offered is supper of Plaintiff's action is indisputable proof that the account existed, theta Defendant consented to the balance by use and payment on said account, and that there remains no material issue of fact for this Honorable Court to decide.

11.  That proceeding to trial in this matter is unduly prejudicial to Plaintiff.

12.  That is is in the intersts of justice and judciail economy to allow Plaintiff to bring a DM before this Honorable Court to reduce the costs of litigationto the parties and the expenditure of resources by the Court to address a matter for which there exists no cognizable legal defenses.

 

WHEREFORE, Plaintiff hereby requests this Honorable Court deny Defendants's Motion to Compel Discovery and grant Plaintiff leave to file a DM in this matter.

 

The reason it starts with # 7 is because the first 6 are his reply's to MTC.

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Here is my VERY rough draft of my answer .

 

 

 

Argument

 

  1. The Plaintiff had plenty of time to compile the documents in support of this matter.  The request for the Production of Documents was received by the Plaintiff on June 3, 2013.  Attached is the copy of the signed receipt by Certified Mail.  On July 5, 2013, a second request was sent, to be responded to in 10 days, and then on July 26, the Defendant filed a Motion to Compel Discovery and a response was finally received on Aug. 1, 2013, 2 months after receiving the original request.  The Defendant responded to the Plaintiffs request for Production of Documents within a timely response.
  2. The amount was never disputed because the Defendant never received a notice to dispute the validity of this debt or the amount of the debt.  According to the Fair Debt Collection Practices Act, 15 USC 1692(g), the Plaintiff is required by law to send out a validation letter allowing the Defendant to dispute the claim and request validation.  A validation letter was sent out on July 11, 2013, but dated November 15, 2012.  This letter was sent 7 months after the complaint was filed.  This was not a legal procedure.
  3. Plaintiff fails entirely to show the amount of damages.

    The Plaintiff has not provided any documentation to support the final balance on the account.  A request was made in the Production of Documents (4.), and was objected to because it was unduly burdensome to produce “21” years of account statements.  This account has not been in existence for “21” years.  In my reply to the Validation letter that was sent on July 11, 2013, a simple accounting of the debt was requested, and a reply was never received.  

 

The amount that plaintiff claims as damages is not supported by competent evidence. Attached to plaintiff's motion is an affidavit of Marty J. Jarrell who states she is a Cosutodian of Records and an authorized Officer of Plaintiff FIA Card Services, N.S. for purposes of thos affidavit.

 

Affidavits must be made on personal knowledge and state in particularity facts admissable as evidence establishing the grounds stated in the motion. MCR 2.119((1). If the affidavit refers to any papers, sworn or certified copies of those papers must be attached. MCR 2.116((2).

               Plaintiff's affidavit signer does not attach or even identify the data on which her testimony is based and as an employee of the assignee rather then the original creditor, lacks the requisite personal knowledge to support plaintiff's claim.

               Courts have frequently held that an employee of the assignee of debt does not have personal knowledge necessary to testify about events or documents pertaining to the original creditor. See: Martinez v Midland Credit Management, 250 SW2d (Tex Ct of Ap. 2008), Ex 2; Asset Acceptance v Lodge, 325 SW3d 525, (MO App 2010)

               Finally the affidavit has to be made within 10 days preceding 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.  In this case the date on the affidavit shows November 26, 2012, and complaint was filed Jan. 9. 2013.

  1.   Deny.  There remains no proof of the account balance.
  2.   Deny that this is unduly prejudicial to Plaintiff.
  3.   Deny.

 

CONCLUSION

 

 For the reasons stated above, Defendant submits that Plaintiff's motion for summary disposition should be denied, and for any further relief the court deems proper.

 

 OK, Sorry, being the "dumb" computer that I am, I cannot get my computer to copy the numbers correctly, but they should be, 7., 8., 9., and then the bottom ones, 10., 11., 12.

 

Sorry if that is confusing.  Any input would be great.  I did check with the court and yes, the hearing for the MTC is still on for Friday, and there are no other hearings scheduled.  They did not respond to my offer of settlement.  I'm guessing, they are holding out for the DM to be awarded.

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Can anyone tell me what happens when a MTC is scheduled for a hearing and the Plaintiff finally produced the docs, and responded to the motion and then also requested a dispositive motion. The hearing is still scheduled for this Friday, but there's really nothing to do at the hearing because the docs have been produced.

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You definitely need to work on the second #'s 1, 2 & 3 (which would be 10 ,11, & 12) . You need more than just deny, or a denial with a bit of elaboration. You need to come up with an argument (more like you did in the first #'s 1,2,3 or actually 7, 8 & 9) You have to come up with as many material issues of fact that need to be decided in a trial as you can (in order to beat this and head to a trial)

Your attack on the procedural errors on the affidavit are pretty good. You might also check and see if it is signed under the penalty of perjury to your state. And also attack the credibility of the affiant (in the affidavit) and the fact that she cannot lay a proper foundation for the evidence)..

I just read it again and see that you do attack the affiant's credibility (change "affidavit signer" to "affiant") but I would try to elaborate on it. She does not state how long she worked there, what her position and duties are, how she knows the info is correct and who she got the information from, or what steps were taken to insure the info is accurate.

If you filed a MTC and that got them to comply; you should be able to withdrawal your motion (if you are satisfied with the documents they produced)Explain to the court that after you filed the motion the plaintiff complied with your request and the MTC is no longer needed. You should be able to file a "notice" to the court or something to that effect. Check your rules and maybe call the clerk.

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Thank you so much Anon Amos. Great advice, and I will go to work on the suggestions. I'm a little stumped on the the last three, and I guess I just put those answers down, because I'm at a loss as to what to put, but I will do more research and see if I can improve on them. I'm afraid I'm running out of time on this. I will check with the courts tmw and see what they say. Hopefully they will be able to give me some answers.

Thank you also for the input on the MTC hearing. It's this Friday, and I don't want to waste everyone's time unnecessarily, so when I call tmw, I hope they will be able to advise me.

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  1. [2]The amount was never disputed because the Defendant never received a notice to dispute the validity of this debt or the amount of the debt. 
    You are saying you never received the dunning letter (from the bottom feeder) and notice to dispute the debt.
    But what they are saying is that you never disputed the debt when you received the CC statements in the mail from the OC (back when the account was still good) and that by making payments you agreed to the amount & promised to pay.
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Ohhhhhh ok. Bummer. How do I dispute that response then. I mean, I guess that is correct right? I didn't dispute while making monthly payments. But of course now the amount has doubled with all of the extra charges. I am disputing those, or at least how they arrived at that amount.

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I'm afraid I'm running out of time on this. I will check with the courts tmw and see what they say. Hopefully they will be able to give me some answers.

Thank you also for the input on the MTC hearing. It's this Friday, and I don't want to waste everyone's time unnecessarily, so when I call tmw, I hope they will be able to advise me.

I forgot to ask you if there was still time to object to this. Be careful of what the clerks tell you (and they cannot give advice (which is probably a good thing). I would also call a law library and ask them.

I hate to say it; but my guess is you are out of time... HOWEVER; if it were my case I would keep working on it and file the objection anyway (too late is when the judge say's it's too late). Also a judge can administer a little leniency (and often do when it's a pro se) the judge COULD allow the objection even though it is untimely.

I'll think about those last 3 a bit. If I were you I would be filing the opposition with the clerk tomorrow, instead of asking them about the rule.

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Ohhhhhh ok. Bummer. How do I dispute that response then. I mean, I guess that is correct right? I didn't dispute while making monthly payments. But of course now the amount has doubled with all of the extra charges. I am disputing those, or at least how they arrived at that amount.

It is a bummer. I'll think about this as well and be back later.

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You are saying you never received the dunning letter (from the bottom feeder) and notice to dispute the debt.

But what they are saying is that you never disputed the debt when you received the CC statements in the mail from the OC (back when the account was still good) and that by making payments you agreed to the amount & promised to pay.

I just read your post and remembered it's an OC that's after you; so my post is a little off. It's not a jdb saying you never disputed the debt with the OC, it is the OC. Either way it's the same problem anyway; in as far as there's not much of a defense to this.

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In number three I think it should say alleged debt  and alleged damages,  simple acct of alleged debt.

 

Also see if you can find case law for MI which states Summary Disposition is not a substitute for trial. If there is one genuine material fact in dispute and witnesses to be subpoened at trial the motion for SD should be denied.  Something like this wording. It only takes one genuine dispute for SD to be denied.

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I forgot or missed parts of your post, and now have some good and bad news.

Bad: In post #255: you will have to make deletions to your argument for the inadmissibility of the affidavit anywhere you mention "assignee" of debt; as this is from the OC and there is no assignee (as in a jdb) Unless I am still missing things here.

The Good: You only need 1 material issue of fact that needs to be tried to beat the MSJ (although you find as many as you can). The fact that you served them request for admissions and they failed to answer (which constitutes an admission)and that you have filed a motion to deem them admitted should be a material issue of fact.

Hopefully you had some good RFA's in there that can win your case (assuming you get thru the summary judgment & head to trial). I am looking to see if anything happened with the motion to deem admitted. Good job with that BTW.

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OK, here are the arguments in the MSD by the Plaintiff.

 

11.  That proceeding to trial in this matter is unduly prejudicial to Plaintiff.

Response: Proceeding to trial after a plaintiff has brought a lawsuit which is then denied by the defendant is a part of due process, a Constitutional right which cannot be denied to any party of an action. Further, there are discovery issues not yet resolved as well as defendant's motion to deem admissions admitted, filed with this honorable court but not yet ruled on. It would be far more prejudicial to the defendant to be deprived of due process and the right to cross examine an accuser in a court of law; then it would be to rule in favor of plaintiff's MSJ. Even more so in light of the fact that plaintiff has failed to respond and therefore has admitted to defendant's request for admissions.

It's rough, but you don't have any time for polish.

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10.  That the evidence now offered is supper of Plaintiff's action is indisputable proof that the account existed, theta Defendant consented to the balance by use and payment on said account, and that there remains no material issue of fact for this Honorable Court to decide.

Response: The evidence offered by plaintiff lacks foundation and attempts to be authenticated by an affidavit that is not only plagued with procedural error, but makes no attempt to lay a foundation for (name of affiant)as to how she knows the information is true and correct or that she is even the custodian of records, and has no personal knowledge of any alleged account information. Plaintiff's action has been disputed in defendant's answer and material issues of fact do remain, including a complete accounting showing how the balanced was computed. discovery is still ongoing and defendant's motion to deem admissions admitted has not yet been ruled on by this honorable court.

Something like that, and again it's rough. Also, if the affiant in the affidavit did not sign under the laws of perjury to your state; you can add that.

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Thank you anon Amos and hot in az. It's all very rough, but you're right, I need to get this in. The plaintiffs DM was filed less than 21 days before the hearing, and they are asking the court to allow it, since they weren't able to respond to my ROGS in time due to "cumbersome" amount of info they had to compile, so I'm hoping the judge will allow this in as well. Your responses help immensely, and I'll fine tune them. I'll keep you posted.

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Thank you anon Amos and hot in az. It's all very rough, but you're right, I need to get this in. The plaintiffs DM was filed less than 21 days before the hearing, and they are asking the court to allow it, since they weren't able to respond to my ROGS in time due to "cumbersome" amount of info they had to compile, so I'm hoping the judge will allow this in as well. Your responses help immensely, and I'll fine tune them. I'll keep you posted.

If there is a rule stating they needed to give you more than 21 days notice then you have them there as well:

"Plaintiff's motion was filed untimely and does not allow defendant the required amount of time to prepare an objection to it; which is part of defendant's right to due process. If plaintiff had difficulties responding to defendant's discovery request,; they could have asked defendant for a stipulation that more time to be allowed. Defendant's discovery request were in fact in accordance with (code number that pertains) and indeed if they were not; plaintiff would have had grounds for a valid objection and more than enough time to make that response".

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What do you mean that they would need to give me more than 21 days notice?

 

That second part is great.  I'm feeling like I'm going to fall apart over this.  It has got me soooo stressed out.  Hopefully I'll look back on this, and see that I didn't need to get so worked up about it after all.

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12.  That is is in the intersts of justice and judciail economy to allow Plaintiff to bring a DM before this Honorable Court to reduce the costs of litigationto the parties and the expenditure of resources by the Court to address a matter for which there exists no cognizable legal defenses.

Response: Justice can never be obtained without affording the defendant's right to due process. Plaintiff has not filed for the DM in a timely manner and should not rely on this honorable court to carve out an exception for it. Defendant has denied the allegations in the complaint; discovery is still ongoing, in fact discovery responses from plaintiff are also untimely and to this day have still not been received; causing defendant to file a motion to deem admissions admitted which has not yet been ruled on. For the reasons above alone; it would be unjust for a ruling to be made in the plaintiff's favor.

There you go; that's the last of the 3, hope it helps. I would place the emphasis on getting it filed rather than polished. Good Luck.

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What do you mean that they would need to give me more than 21 days notice?

You said the plaintiff's DM was filed less than 21 days before the hearing and they are asking the court to allow it. So I assumed you must have some rule stating they needed to file the DM with more than 21 days. And they have to send you a copy of what they filed with the court (that would be the notice).

If not; then it needs some adjustment.

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What do you mean that they would need to give me more than 21 days notice?

 

.  I'm feeling like I'm going to fall apart over this.  It has got me soooo stressed out.

Don't let it tear you up. Take a break now and then, do something to relieve the stress or it can cause you problems. If you can just get past this summary judgment you can relax for a while.

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Yes, I checked the MI rules and it has to be filed at least 21 days before the hearing.  And they did send me a copy.  Now, I called the court, and I sent in a request to withdraw the MTC, and she was going to check with the judge to see if she still wanted to have the hearing to decide on their request for leave to file a DM.  So......I need to get this in before that hearing this friday.  I never actually filed a motion to deem admitted, because I found out it was sent after the 42 days of discovery, (which I wan't aware of, due to my ignorance), and so I'm guessing they wouldn't be deemed admitted anyways.  I believe from what I've been able to read about, that I had 21 days to file an objection to this DM, and I'm outside of that 21 days.  It was aug. 5.  But if the judge allows them to file their DM after the 21 day cutoff, shouldn't she then allow me to object after my 21 days also?  

 

Do they have to actually show up in court for the hearing?  I think they are trying to get out of coming to this side of the state to show up, and can they send a rent a lawyer, like they did in mediation?

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Yes, I checked the MI rules and it has to be filed at least 21 days before the hearing.  And they did send me a copy.  Now, I called the court, and I sent in a request to withdraw the MTC, and she was going to check with the judge to see if she still wanted to have the hearing to decide on their request for leave to file a DM.  So......I need to get this in before that hearing this friday.  I never actually filed a motion to deem admitted, because I found out it was sent after the 42 days of discovery, (which I wan't aware of, due to my ignorance), and so I'm guessing they wouldn't be deemed admitted anyways.  I believe from what I've been able to read about, that I had 21 days to file an objection to this DM, and I'm outside of that 21 days.  It was aug. 5.  But if the judge allows them to file their DM after the 21 day cutoff, shouldn't she then allow me to object after my 21 days also?  

 

Do they have to actually show up in court for the hearing?  I think they are trying to get out of coming to this side of the state to show up, and can they send a rent a lawyer, like they did in mediation?

You will then have to make the needed adjustments to my rough post. I guess you will have to can the RFA stuff, but you know your case, so you can take what fits from these post. You have both made timing and procedural errors; so you can argue that they should cancel each other out (the court should not allow one party to be untimely but not the other).

Just do the best you can, and get it filed; that's all you can do. It probably will be a local rent a lawyer that shoes up.

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