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Hi gang, this is my next item on the agenda as I continue to battle Midland. Last week was my opposition to Midland's 'Motion to Vacate Judgement and Set Aside' (Look for that post elsewhere on the forum; just the fact that I am now preparing a Motion for Summary Disposition is a clue as to how last Friday's events turned out). The trial date is set for a few weeks down the road; in the meantime I am going to hit them with a MSJ (it's actually a MSD in Michigan). This'll be a two-parter; first comes the motion, then comes the brief. I followed the exact form that Plaintiff followed when they filed their own MSJ on me last August.

 

DEFENDANT’S MOTION FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116 © (10)

     Now comes Defendant Beefer Real, Pro Se, for his Motion for Summary Disposition pursuant to MCR 2.116 © (10) states as follows:

1)      That on or about June 20, 2013, Plaintiff filed his action, and Defendant was properly served.

2)      The action filed by the Plaintiff was related to a credit card account that Plaintiff alleges belonged to the Defendant and was allegedly procured by Plaintiff from Chase Bank. 

3)      Defendant sent Request for Discovery via certified mail with return receipt to Plaintiff’s council on Xxxxxx xx, xxxx. Defendant received Plaintiff’s answers on or about Xxxxx xx, xxxx.

4)      That Plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find that Defendant is indebted to the Plaintiff.

5)      The Plaintiff has used hearsay statements in the pleadings of this case.

6)      That an examination of the attached documentation originally provided by Plaintiff, along with Plaintiff’s responses to interrogatories during discovery, has left Plaintiff with a lack of standing. Without standing, the case cannot be ruled in Plaintiffs favor. 

WHEREFORE, Defendant respectfully requests that this Honorable Court grant judgement in Defendant’s favor and dismiss this suit with prejudice.

Dated:  Xxxxxx xx, xxxx                                              _____________________________

                                                                                       Beefer Real

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And here is the brief:

 

BRIEF IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116 © (10)

     Now comes Defendant Beefer Real, Pro Se, for his Motion for Summary Disposition pursuant to MCR 2.116 © (10) states unto this Honorable Court as follows:

FACTS AND LAW

     This matter is based upon what Plaintiff is alleging as a stated account arising from a credit card agreement allegedly entered into by Defendant with Chase Bank USA and subsequently procured by Plaintiff at auction (see Plaintiff’s supplied Assignment, affidavits, and billing statements, attached hereto and incorporated by reference).  Defendant’s earliest contact from Plaintiff occurred on or about November 2, 2012 via U.S. Mail, which Defendant dismissed as junk mail. Subsequent contacts with law firms representing Plaintiff occurred from Xxxxx xxxx until Xxxxx xxxx, and that was when Plaintiff  brought forth the court action. Since Xxxxx xxxx when the personal contacts with the various law firms began, Defendant has denied having an account and any outstanding balance with Plaintiff and/or Chase Bank USA. Furthermore, Plaintiff failed to attach written instruments to the complaint as required per Michigan Rules of Civil Procedure 2.113 (f) to support its claim. Furthermore, in subsequent discovery interrogatories, Plaintiff has stated that it does not possess any documentation with the Defendant’s signature, any original written agreement between the Defendant and Chase Bank, or a complete history of the alleged account that establishes the legitimacy of the balance sought. Plaintiff has stated in the interrogatories that it “is not the original creditor and does not currently possess all of the documents associated with the account. Plaintiff has requested additional information and will supplement this response upon receipt” (see ‘Plaintiff’s Answers to Defendant’s Interrogatories…”, attached hereto and incorporated by reference).

     MCR 2.113(F) requires that, when a claim is based on a written instrument, the instrument must be attached to the pleading:

     (1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is

           (a) A matter of public record in the county in which the action is commenced and its location is stated in the pleadings;

           ( B) In possession of the adverse party and the pleading so states;

           © Inaccessible to the pleader and the pleading so states, giving the reason;

           (d) Of nature that attaching the instrument would be unnecessary or impractical and the pleading so states, giving the reason.

     Plaintiff did not attach a copy of any contract to its complaint. Plaintiff's failure to produce the contract on which its claim is based, as required by MCR 2.113(F), "warrants dismissal of the contract claim without prejudice." English Gardens Condominium, LLC v Howell Twp, 273 Mich App 69, 81; 729 NW2d 242, 250 (2006). Accord: Woodward Nursing Home v Medical Arts, 2006 Mich App LEXIS 207 (Mich Ct of App 2006).

      Plaintiff's failure to attach a copy of the real contract to its complaint is fatal to its claim. In addition to the requirements of the court rule, the contract is necessary to support plaintiff's claims. Without the real contract, Plaintiff cannot demonstrate that Defendant agreed to pay any particular rate of interest, late charges, or other fees, and it appears that much of the amount Plaintiff claims is comprised of late fees and interest.

     The Truth in Lending Act requires that a card issuer show that the use of the credit card was authorized. "In any action by a card issuer to enforce liability for the use of the credit card, the burden of proof is upon the credit card issuer to show that the use was authorized..." 15 USC § 1643( B).  In this case, Plaintiff fails to carry that burden. Even if the purported statements attached to plaintiff's motion were admissible, which they are not, those statements do not show that anyone authorized any charges at all on the credit card.

       Furthermore, statements provided by Plaintiff are not authenticated by the credit card employee in a way of testimony or sworn affidavit as per MRE 902(11). Also, Plaintiff did not attach a copy of the original credit card agreement, even the Truth in Lending Act separates billing statements and credit card agreement.

       Even if the documents submitted by Plaintiff were admissible, Plaintiff would still not be entitled to judgement based on theory of an account stated. To prove an account stated, a party must show that the other party agreed he owes the amount claimed. "An account stated means a balance struck between the parties on settlement." Watkins v Ford (syllabus) 69 Mich 357 quoted in Kaunitz v Wheeler, 344 Mich 181, 185; 73 NW2d 263 (1955).

       In Kaunitz’ case, the court held that trial court erred in granting plaintiff's summary judgment. Even the defendant's acknowledgment of indebtedness letter was not sufficient to show that defendant admitted it owed plaintiff the amount claimed.

     "The conversion of an open account into account stated, is an operation by which the parties assent to a sum as the correct balance due from one to the other, and whether this operation has been performed or not, in any instance, must depend upon the facts. That it has taken place, may appear by evidence of an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessarily exclude all inquiry into the rectitude of the account." White v Campbell, 25 Mich 463, 468.

      Unlike Kaunitz, the present plaintiff does not show that defendant ever acknowledged he owes the plaintiff anything and there has been no acknowledgment by defendant that he owes the plaintiff the amount claimed as per defendant's claim. Merely sending a bill does not create account stated. There must be some acknowledgement by the party billed that he admits owing the debt and that he further admits that the amount claimed is accurate.

       The Michigan Court of Appeals has reaffirmed the necessity of proving the assignment, and announced requirements for doing so in Brown Bark, II LP v Bay Area Floorcovering & Design, 2011 Mich App LEXIS 1003, (May 31, 2011).

     The court held that the documents submitted to prove the assignment of the debt were insufficient for several reasons, including the fact that the plaintiff did not produce the entire assignment agreement, while the allonge was presented as evidence at trial, it was not attached to the note; nor did plaintiff include the agreement referenced in the allonge as evidence, citing privilege as its reason for failing to do so.

       Because the trial court did not have an opportunity to review the referenced agreement, and consequently could not determine what limitations might exist, the trier of fact could not reasonably conclude that half-page document constituted documentation of National City Bank's intent to transfer all of its rights related to the defaulted loan without any power of revocation.

       In the present case, Plaintiff has clearly not produced the entire agreement by which it allegedly acquired the debt, and there is no evidence that any amount or even the alleged account was in fact included in whatever accounts were included in the "Bill of Sale". In fact the only page showing the alleged account number has been printed by Midland Credit Management, Inc. as stated on the bottom of the page, and not by Chase Bank USA, N.A. Therefore plaintiff fails to show proper assignment.

       The amount that Plaintiff claims as damages is not supported by competent evidence.  Attached to Plaintiff's motion is an affidavit of ‘Ida Nawtexist’ who states she is “employed as a Legal Specialist and has access to pertinent account records for Midland Credit Management, Inc. ("MCM")”. Affidavits must be made on personal knowledge and state in particularity facts admissible as evidence establishing the grounds stated in the motion. MCR 2.119( B)(1). If the affidavit refers to any papers, sworn or certified copies of those papers must be attached. MCR 2.116( B)(2).

     Plaintiff's affidavit signer does not attach the data on which her testimony is based, and as an employee of the assignee rather than the original creditor, lacks the requisite personal knowledge to support plaintiff's claim. The affiant makes unsupported statements that are based on hearsay. Defendant objects to The Declaration on these grounds. Defendant requests the court that it be stricken from the record. 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 Xxx xx, xxxx and complaint was filed Xxxx xx, xxxx.

       And, Plaintiff’s witness declaration of Ima Fakepersontoo from Chase Bank is not valid or admissible in Court and should be excluded and struck. Nowhere in the affidavit or its attached “Bill of Sale” is defendant’s name, personal information, or alleged account number as it relates to Plaintiff’s claim as outlined in the pleadings. The witness states that she is "aware of the process of the sale and assignment of electronically stored business records." That is the only background she gives as foundation for her testimony. Later she says "I am not aware of any errors in these accounts." However, I could easily say the same thing and I know nothing about Chase's record keeping practices. The witness does not set forth facts demonstrating that she WOULD know if there had been errors in the accounts. General familiarity with assignment of electronic records has nothing to do with account data entry and reconciliation. That statement should not be admitted.

        In the case of both declarations, Plaintiff attempts to include hearsay evidence in the proceedings without the ability of the trier of fact to evaluate the credibility of the witness.

CONCLUSION

       Plaintiff has failed to meet its burden of proof. Midland LLC has failed to show an account stated exists or existed at any time. Plaintiff has not itemized the total sum upon which the complaint is based, including the date of each item or transaction; a description of the services, materials or goods supplied or other considerations rendered; and the price or charge made for each item or transaction. The documentation supporting the alleged Bill of Sale from the original creditor to Midland DOES NOT CONTAIN OR REFERENCE ANY PERSONAL INFORMATION PERTAINING TO THE DEFENDANT NAMED IN THIS SUIT.  Based upon Michigan and other cited case law, Defendant is entitled to a Summary Disposition and judgement as a matter of law.

       WHEREFORE, Defendant respectfully requests that this Honorable Court grant judgement in Defendant’s favor and dismiss this suit with prejudice.

 

Dated:  Xxxxxx xx, xxxx                                               _____________________________

                                                                                       Beefer Real

                                                                                       Defendant, In Pro Per

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You should keep everything in your case all in one thread so we know what has happened to get you to this point. I know the rules are different in mi, but in my state I would not file that unless the discovery period is over.

I could be off base here, your rules are different in what is required to file against you, I do not know if they have met that burden, but if your discovery period is not over, this might get you into trouble. If you want an example of a cic person who did what you are about to do, go look at browniebrownie's thread. During discovery they stated they were not in possession of the contract, she filed a MSJ. Discovery was not over, they came up with a signed application. Now she is having to back peddle, her hearing is in jan.

Just want you to be sure you know what you are doing.

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You should keep everything in your case all in one thread so we know what has happened to get you to this point. I know the rules are different in mi, but in my state I would not file that unless the discovery period is over.

I could be off base here, your rules are different in what is required to file against you, I do not know if they have met that burden, but if your discovery period is not over, this might get you into trouble. If you want an example of a cic person who did what you are about to do, go look at browniebrownie's thread. During discovery they stated they were not in possession of the contract, she filed a MSJ. Discovery was not over, they came up with a signed application. Now she is having to back peddle, her hearing is in jan.

Just want you to be sure you know what you are doing.

Much appreciated, Shell. In this case, Discovery is over...I made a point to ask at the Motion To Set Aside and Vacate Judgement hearing last week. I guess the gray area would be contained in their numerous responses in the interrogatories where they stated they would produce certain documents 'on receipt'. The thing is, they should have had the documents in the first place when they filed the suit.

 

Also, I've amended the motion and brief, this also involves MCR 2.116 © (8), which states that "the opposing party has failed to state a claim upon which relief can be granted".

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You need to breakdown each section in this motion:

 

I. PLAINTIFF FAILED TO ESTABLISH A BREACH OF CONTRACT

 

II. PLAINTIFF FAILED TO CREATE AN ACCOUNT STATED CLAIM

 

III. PLAINTIFF FAILED TO ESTABLISH STANDING...etc.

 

Also, you need to establish a legal standard to bring forth the motion under MCR 2.116©(10).

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You need to breakdown each section in this motion:

 

I. PLAINTIFF FAILED TO ESTABLISH A BREACH OF CONTRACT

 

II. PLAINTIFF FAILED TO CREATE AN ACCOUNT STATED CLAIM

 

III. PLAINTIFF FAILED TO ESTABLISH STANDING...etc.

 

Also, you need to establish a legal standard to bring forth the motion under MCR 2.116©(10).

Thanx bmc100; they never have tried to establish a breach of contract, but I am picking up what you are putting down. This is an easy fix; for the most part, I used my opposition motion to their MSJ to create this document. Like a fool, I cut out the section headings when I created the 'new' document.

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Hi gang, this is my next item on the agenda as I continue to battle Midland. Last week was my opposition to Midland's 'Motion to Vacate Judgement and Set Aside' (Look for that post elsewhere on the forum; just the fact that I am now preparing a Motion for Summary Disposition is a clue as to how last Friday's events turned out). The trial date is set for a few weeks down the road; in the meantime I am going to hit them with a MSJ (it's actually a MSD in Michigan). This'll be a two-parter; first comes the motion, then comes the brief. I followed the exact form that Plaintiff followed when they filed their own MSJ on me last August.

 

DEFENDANT’S MOTION FOR SUMMARY DISPOSITION PURSUANT TO MCR 2.116 © (10)

     Now comes Defendant Beefer Real, Pro Se, for his Motion for Summary Disposition pursuant to MCR 2.116 © (10) states as follows:

1)      That on or about June 20, 2013, Plaintiff filed his action, and Defendant was properly served.

2)      The action filed by the Plaintiff was related to a credit card account that Plaintiff alleges belonged to the Defendant and was allegedly procured by Plaintiff from Chase Bank. 

3)      Defendant sent Request for Discovery via certified mail with return receipt to Plaintiff’s council on Xxxxxx xx, xxxx. Defendant received Plaintiff’s answers on or about Xxxxx xx, xxxx.

4)      That Plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find that Defendant is indebted to the Plaintiff.

5)      The Plaintiff has used hearsay statements in the pleadings of this case.

6)      That an examination of the attached documentation originally provided by Plaintiff, along with Plaintiff’s responses to interrogatories during discovery, has left Plaintiff with a lack of standing. Without standing, the case cannot be ruled in Plaintiffs favor. 

WHEREFORE, Defendant respectfully requests that this Honorable Court grant judgement in Defendant’s favor and dismiss this suit with prejudice.

Dated:  Xxxxxx xx, xxxx                                              _____________________________

                                                                                       Beefer Real

for effective pleading writing we do not need to use this comes now stuff anymore,,,,,,judge prefer plain English and short to the point statements.

The Defendant in this matter states the following under penalties of perjury,

This Motion is pursuant to MCR 2.116 © (10). Plaintiff has offered no evidence to support their claim. It is well settled that statements of council in brief or argument are not facts before the court. Plaintiff has failed to meet even the minimum standard to prove standing to sue. Plaintiff has not plead facts sufficient enough to invoke the courts authority. The court lacks subject matter jurisdiction. Until plaintiff establishes standing to sue and invokes the courts authority to hear this case the court cannot even review the merits of this case. It is well settled that Subject matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt, United States v Cotton, 535 U.S. 625, 630 (2002). It is also well settled that jurisdiction of the court cannot be ignored, Joyce v. US, 474 F2d 215. Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action, Melo v. US, 505 F2d 1026. Annotated law states actual facts, not mere allegations in a complaint, are determinative of jurisdiction.

 

Plaintiffs case should be dismissed for lack of standing to sue and want of subject matter jurisdiction of the court.

 

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