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New Michigan Lawsuit, JDB, Do I Answer, MTD or MSJ???


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Hello friends, would appreciate some advise on the ideal way to respond by answer or has been suggested MTD or MSJ  for this Michigan lawsuit.

 

 

1. This cause of action arose within the jurisdiction of this Court in the county of ....In Michigan

 

2. Plaintiff's   MID  predecessor in interest is   Cha se

 

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

 

4. Plaintiff's assignor sent statements on account number XXXXXXX to the defendant who did not dispute the charges or object within a reasonable time.

 

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

 

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

 

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

 

8. Defendant is now justly indebted to Plaintiff over and above all legal counterclaims, in the amount of  3,xxx.**

 

Plaintiff requests that this court enter judgement against defendant in the amount of 3,xxx.** plus interest, cost and attorneys fees.

 

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The only item included in the complaint is a stale affidavit from an employee of Mid. No account statements, no assignment, nothing else.

 

What would be a good sample answer for this complaint?

 

Or, because their only evidence by rights should be excluded in favor of my sworn affidavit, would a MTD or MSJ in lieu of an answer be better? If so, what is the strategy behind it and how should it be worded?

 

Also, would appreciate some good sample wording for my sworn affidavit for those familiar with account stated cases as described in the complaint above.

 

Thank you in advance.....

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Special thanks to Savoir for the helpful information on wording my sworn affidavit in this account stated case which only included a stale affidavit in the complaint. The last lawsuit that I successfully defended was breach of contract, so a strategy for account stated is new. I've read a LOT, but as you all know it tends to get overwhelming and this stuff starts all running together. Have to submit my answer and sworn affidavit on Monday so it's crunch time.

 

Does anyone have information applicable to Michigan that would be good to add in my answer regarding lack of standing when nothing, nada, zero has been included in the complaint that indicates ownership, transfer or how the dollar amount of the alleged debt from the original creditor was determined?

 

Information would be greatly appreciated.....

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1. Unifund CCR Partners v. Nishawn Riley

This credit card case discusses both MCR  2.113(f) and the requirement to prove assignment under Mich law.

 

2. The complaint does not comply with MCR 2.113(F) , the written instrument needs to be attached to the complaint if it is not in the possession of the defendant or of public record as stated in the Defendant’s Answer. The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account.

 

3. The Plaintiff cannot rely upon MCL 600.2145 “Account Stated” or Open Account. MCL 600.2145 specifically states that a copy of said account, 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. The Defendant requests any future claim of Account Stated to not be admissible to this court, future affidavits are not admissible as evidence since they will not be attached to the complaint.

 

4. The Plaintiff does not comply with Truth In Lending Act 15 U.S.C. 1643(B), for the Plaintiff has the burden of proof to show that all transactions were made or authorized by the Defendant and the interest and finance charges are correct.

 

5. The Plaintiff has a Lack of Standing. The Plaintiff has failed to establish proof of ownership of the alleged account and has not provided proof of standing to sue. MCR 2.112(A)(2).

 

6. The alleged agreement is null and void by reason of non-delivery. The Plaintiff failed to supply the alleged agreement to the Defendant.

 

*******************

 

The above are just some of the arguments that I have 'stolen' from bmc100 ........... hope they are helpful.

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Wow is that great stuff Savoir!

 

Just got done completing my answer and sworn affidavit of denial, but am going to modify my answers somewhat due to this input. Previous to this, I kept the my responses very brief in the Answer and only included two affirmative defenses because they are both extremely strong. Lack of standing and the Plaintiff's failure to create an account stated claim.

 

I've got a general question related to how much ammo do you shoot with an answer?  I've dealt with other CC lawsuits and the complaints were strong, including account statements, card agreements and sworn affidavit (and by a miracle won!). But, even in that case nothing was decided in the pre-trial hearing. Just set a date for trial and gave some time for discovery. This case is bizarre in it's simplicity and lack. Not taking anything for granted, but the plaintiff hasn't proven even a single item for an account stated claim, even their affidavit is stale. Here is my question:

 

How technical should I get in my Answer? From my experience, these cases aren't tried (unless one defaults) based on the complaint and answer which in my experience is just the starting point. Is there any benefit to hammering on specific MCR codes at this earliest stage when a pre-trial hearing is going to happen regardless? Where key items like standing, or valid assignment, or a stale affidavit really mean something? In other words, is there a benefit to formulating detailed arguments in an answer like one would a motion? If so, let me know and I'll get right to it!

 

So far with limited knowledge, I don't see the need and don't like the idea of showing my cards in case the rent-a-lawyer actually reads my answer. Would rather drop a couple nukes in front of the judge at pre-trial or later with a MSJ when the plaintiff can't remedy their pathetic case.  But, am a lowly, dumb pro se and don't know the answer. Savoir, anyone, please advise......          

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Here is some case law......

 

"Bell Atlantic v. Twombly (2007)
At a minimum, there must be factual allegations that "raise a right to relief above the speculative level( (at 1965)

 

Whitmore v Arkansas, 495 U.S. 149 (1990)
Before a Court can consider the merits of a case, the person seeking to invoke the courts jurisdiction must establish the requisite of standing to sue

 

United States v Cotton, 535 U.S. 625, 630 (2002)
Subject matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt
 

Plaintiff’s complaint is not properly verified and is not grounded in fact because it does not exhibit the alleged contract the debt is based upon, a valid statement of account, nor any valid assignment that gives Plaintiff legal title to the claim.

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  • 2 weeks later...

Does anyone have a sample Motion to Dismiss for lack of standing formatted to Michigan in response to a JDB lawsuit where no bill of sale, assignment documents or any other proof of ownership was included in the complaint?

 

I filed my answer on December 24th which included lack of standing to sue in my affirmative defenses. Unless someone here convinces me otherwise, I plan to file a MTD for lack of standing nine days before the pretrial and schedule the hearing for this motion on the same day and time as the pretrial. The reason for this is so my agenda to dismiss the case is the first order of business which will put me on offense right out of the gate. Already talked to the court clerk who said she could set a motion hearing at the same time as the pretrial as long as the filing is timely. Is there any reason to pursue any other defenses at this point when not a single document was included in the complaint that indicates the JDB has standing to sue for this alleged account?

 

Put another way, should I do anything else before and during the pretrial hearing except make them prove standing before the action moves any further?

 

BTW, thanks for the links above Sarge.....

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1. Unifund CCR Partners v. Nishawn Riley

This credit card case discusses both MCR  2.113(f) and the requirement to prove assignment under Mich law.

 

2. The complaint does not comply with MCR 2.113(F) , the written instrument needs to be attached to the complaint if it is not in the possession of the defendant or of public record as stated in the Defendant’s Answer. The Plaintiff is making an unsupported statement that a contract or agreement exists without providing an account agreement or details regarding the alleged account.

 

3. The Plaintiff cannot rely upon MCL 600.2145 “Account Stated” or Open Account. MCL 600.2145 specifically states that a copy of said account, 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. The Defendant requests any future claim of Account Stated to not be admissible to this court, future affidavits are not admissible as evidence since they will not be attached to the complaint.

 

4. The Plaintiff does not comply with Truth In Lending Act 15 U.S.C. 1643( B), for the Plaintiff has the burden of proof to show that all transactions were made or authorized by the Defendant and the interest and finance charges are correct.

 

5. The Plaintiff has a Lack of Standing. The Plaintiff has failed to establish proof of ownership of the alleged account and has not provided proof of standing to sue. MCR 2.112(A)(2).

 

6. The alleged agreement is null and void by reason of non-delivery. The Plaintiff failed to supply the alleged agreement to the Defendant.

 

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My response to Savoir's points above:

 

#1 and #2 above are very interesting, at what point is it appropriate to plead that due to lack of documentation, the complaint fails to comply with MCR 2.113(F)? Should it have been somewhere in my answer or should I plead a separate MTD based on this issue? 

 

#3 Looks very powerful as no copy of the account was included in the complaint, only a stale affidavit from an employee of the JDB. Attacking the affidavit is an important part of my defense if the plaintiff is somehow able to demonstrate standing. Can I use this as yet another separate MTD in addition to lack of standing?  

 

#4 Where does the Truth in Lending act come into play in a Michigan Civil action? Does this need to be in my affirmative defenses to bring up this defense later? If not, when on what basis do I use this as a defense?

 

#5 Lack of standing, I'm hitting the plaintiff with this out of the gate and was included specifically as an affirmative defense.

 

#6 Does this Non-Delivery argument need to be made in the answer as a specific affirmative defense? If so, how powerful is this defense it because I have until next Tuesday to modify my answer for this or any other reason if needed?

 

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You need to give the opposing party (I Believe) 21 days notice. The court will usually not schedule a motion hearing for at least 28 days. What you proposed will not work by filing a motion 9 days before pre-trial.See MCR 2.116(G)(a).

 

 

Thanks for the heads up bmc, I'm going to have to check very carefully the time requirements for scheduling a MTD hearing which I would like at or before the pretrial. There is a significant difference between a MSJ/MSD which I believe  is 21 days vs MTD which is 7 (+2 for mailing). Could be wrong though, just a lowly pro se. Scheduling the hearing itself might be a different matter, but I have pretty good favor with the court clerk so I'm going to stop in and ask her personally. She set my pretrial hearing right while I was standing at the counter filing my answer and handed me the notice instead of bothering with mail.

 

What are your thoughts on making the plaintiff demonstrate standing before proceeding with anything else bmc?

 

 

 

 

 

 
Rule 2.119 Motion Practice
 
© Time for Service and Filing of Motions and Responses.
(1) Unless a different period is set by these rules or by the court for good
cause, a written motio
n (other than one that may be heard ex parte), notice of
the hearing on the motion, and any supporting brief or affidavits must be
served as follows:
(a) at least 9 days before the time set for the hearing, if served by mail, or
(at least 7 days before
the time set for the hearing, if served by delivery

under MCR 2.107©(1) or (2)

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You need to give the opposing party (I Believe) 21 days notice. The court will usually not schedule a motion hearing for at least 28 days. What you proposed will not work by filing a motion 9 days before pre-trial.See MCR 2.116(G)(a).

 

Ignoring the time frames required under MCR 2.116  Summary Disposition, let's talk strategy for a moment. Under MCR 2.116 C

there are two grounds for summary disposition that are very strong in my favor:

 

(5)The party asserting the claim lacks the legal capacity to sue. - The only problem with taking this tack is it's my understanding the plaintiff has open opportunity to bring in new information which could include some attempt to produce a bill of sale; real, incomplete or fake. No matter what, I plan to make the JDB prove standing, but not sure of the best timing and method of attacking on this front. 

 

(8) The opposing party has failed to state a claim on which relief can be granted. - I really like this given the lack of documentation in the complaint because it's my understanding that under MCR 2.116©(8), the court uses what is included in the complaint, which in this case is ONLY a stale affidavit from a JDB employee, nothing else. I've got to research this further because if the only basis for making a ruling is what is included in the initial action the plaintiff has clearly failed to state a claim on which relief can be granted. This strategy looks really promising on the surface, but I just don't know how and when to proceed.

 

Thoughts?

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