cmc54

Being sued in Mi by LVNV Funding

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Short version:

Received and answered complaint and summons

Court set Final Settlement Conference for 6/9/2014, non-jury trial for 6/16/2014

Received Motion for Summary Disposition on 5/27 (they filed it on 5/20/2014 in another county from where I live)

Hearing on Motion set for 15 minutes before my Settlement conference

I prepared an answer to MSD w/brief, but did not get it filed in time because I didn't know I had so many days to answer and there was nothing indicated in the Motion that I had to respond

Trial briefs are due on 6/9/14

 

Plaintiff (LVNV) did not include any affidavits in any of their paperwork, have not got provided a clear chain-of-title. The only papers attached are a generic unreadable Customer Agreement with no signatures , Bill of Sale with signatures, dated 4/14/09, a Declaration of Transfer dated 4/14/09 (neither of these are verified or notarized), an account statement dated 3/19/09 which only shows a continuing account balance due and a statement that the account is closed, and another paper that state; "This is an account summary. It is not a credit card statement from the originating creditor and has not previously been provided to the consumer". "This summary has been generated on behalf of LVNV Funding, LLC, account owner" There are no signatures on this paper and there is no affidavit attached to it.  

 

My questions: Doesn't there have to be some kind of verification attached to these papers?

How do I word the trial brief? Can I file motions? If yes, what motions can I file and when?

 

 

I would really appreciate help and advice on this. Thank you. 

 

 

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Plaintiff (LVNV) did not include any affidavits in any of their paperwork, have not got provided a clear chain-of-title. The only papers attached are a generic unreadable Customer Agreement with no signatures 

 

There is NO such thing as a credit card agreement with signatures on it.  The court will not expect one and the case will not hinge on it.  This is NOT a contract dispute.  They do not even have to show you applied for the account to win the case so requesting the original signed application can be a non-starter as well.

 

My questions: Doesn't there have to be some kind of verification attached to these papers?

How do I word the trial brief? Can I file motions? If yes, what motions can I file and when?

 

 

I would really appreciate help and advice on this. Thank you. 

 

What trial brief are you referring to?  All you need to file is an answer and do discovery.  This actually should have been done right after you were served.  

 

You can file motions but they have to have a legal purpose or you will piss off the court.  Given that trial is Monday it is WAY too late to file motions.  You need to study up on rules of civil procedure every waking hour between now and next week.  You will need to attack their standing to sue and those unnotarized documents.  Notarized they are spurious hearsay.  No notary or affidavit to their authenticity and they are self serving documents with no verification and inadmissible but you have to know how to argue that.

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If you prepared an opposition to their MSD you still have time to file it. Could you post it. You need this to be good to fight theirs. Michigan is a tough state with different rules.  I read that they have to get permission to file an MSD and I am thinking that this is what the hearing is for, so you need some good case law to fight that.  I sent you a PM.

 

Clydesmom, you are being a little ridiculous here. If you cannot give real advise in a nice manner, why do you bother with this????? People asking for help do not need to be bombarded with you and this is not the first time !!!!

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Clydesmom, you are being a little ridiculous here. If you cannot give real advise in a nice manner, why do you bother with this????? People asking for help do not need to be bombarded with you and this is not the first time !!!!

 

This isn't AZ Justice Court that is being run by an elected official.  Small Claims Court in MI is ACTUAL JUDGES.   They go by the rules of civil procedure and if you cannot adhere to them you will LOSE.  The OP is clearly unprepared to go to trial in less than 48 hours.  The first hearing is on MONDAY.  There is no time for hand holding or sugar coating.  The OP needs a wake up call before Monday or they are going to get steam rolled by the MI courts.

 

What is ridiculous is to assume that because AZ does it one way that ALL courts function that way.  Exactly how many MI court cases have you been involved in?  It is utterly ridiculous that you are arguing with me about what the MI courts will do when you have never been in one.  There is NO time to file a response to the MSD and you clearly do not know MI law because NO permission from the court is needed for either party to file for one.  There is a limited time for the other party to respond and once that lapses they can only make oral arguments if the court will even hear them.  

 

This is not the time to try and assert yourself and if the OP wants to follow any advice you sent them privately they do so at their own peril because it is not going to be based on MI law or RCP. 

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@cmc54. I don't know mi rules well, but read BMC100's thread pinned at the top of this forum. He walks you through the process. You are late to the game, but if they did not include an affidavit that was signed within 10 days of serving you I believe they cannot use one in a prima facie case, ie summary judgement. Bmcs explains it in his thread, I think it can help you.

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There is NO such thing as a credit card agreement with signatures on it.  The court will not expect one and the case will not hinge on it.  This is NOT a contract dispute.  They do not even have to show you applied for the account to win the case so requesting the original signed application can be a non-starter as well.

 
 

 

What trial brief are you referring to?  All you need to file is an answer and do discovery.  This actually should have been done right after you were served.  

 

You can file motions but they have to have a legal purpose or you will piss off the court.  Given that trial is Monday it is WAY too late to file motions.  You need to study up on rules of civil procedure every waking hour between now and next week.  You will need to attack their standing to sue and those unnotarized documents.  Notarized they are spurious hearsay.  No notary or affidavit to their authenticity and they are self serving documents with no verification and inadmissible but you have to know how to argue that.

Why are you being rude? I am only asking for help. I am not totally ignorant, and I have spent many, many hours reading these posts and all kinds of other material online. I have read the rules of Civil Procedure many times and I still don't understand the process.I did not know about trial briefs until the judge sent papers with the court date and orders of the court , so I couldn't have done it right after I was served. One of the orders of the court specifies that "Trial briefs with a concise statement of facts; issues presented; argument; supporting law; and requested relief shall be submitted by the parties or their counsel and must be filed with the Court 7 days prior to date of trial. Copy must be served..........If a Customer agreement is not important, why did Plaintiff attach it as an Exhibit? So how do I argue this point-- Notarized they are spurious hearsay.  No notary or affidavit to their authenticity and they are self serving documents with no verification and inadmissible but you have to know how to argue that.

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@cmc54. I don't know mi rules well, but read BMC100's thread pinned at the top of this forum. He walks you through the process. You are late to the game, but if they did not include an affidavit that was signed within 10 days of serving you I believe they cannot use one in a prima facie case, ie summary judgement. Bmcs explains it in his thread, I think it can help you.

Where do I find BMC's thread? I do not see it pinned at the top of this forum

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Why are you being rude?

 

There is NO tone to my posts.  I give you the facts of your situation and you decide what to do with them.  Before you follow the advice of someone from another state you should be aware of their knowledge level:  simply following a single case in another state is insufficient to advise someone on a plan of action.  

 

If you only want people telling you what you want to hear say so in order that I may move on to help others.

 

I did not know about trial briefs until the judge sent papers with the court date and orders of the court , so I couldn't have done it right after I was served. One of the orders of the court specifies that "Trial briefs with a concise statement of facts; issues presented; argument; supporting law; and requested relief shall be submitted by the parties or their counsel and must be filed with the Court 7 days prior to date of trial. Copy must be served.........

 

If the court is asking for a trial brief then you are in Superior/District Court NOT small claims court.  That is a WHOLE different issue and you really need a lawyer. Small claims does not require trial briefs and yours is due Monday at the latest.  My suggestion would be to motion for a continuance so that you can at least consult a lawyer.  Coming up with a salient trial brief in less than a day is going to be nearly impossible.  No one can help you craft one not seeing any of the documents or your answers that you have already filed.  

 

If a Customer agreement is not important, why did Plaintiff attach it as an Exhibit? 

 

It demonstrates the terms you agreed to when you accepted the card and used it.  The court will not be seeking a signed contract this is the most common mistake pro-se defendants make in credit card cases believing that lacking a signed agreement there is no case.  In many states, including MI, the rules of evidence are pro-creditor and the documents a judge will accept are weak at best but sail right through with even the best objections and case law.

 

So how do I argue this point-- Notarized they are spurious hearsay.  No notary or affidavit to their authenticity and they are self serving documents with no verification and inadmissible but you have to know how to argue that.

 

First you need to read their witness list and make sure they do not have an employee coming to testify about those documents.  That would be the one way that they would not need to be notarized.  If they are presenting no witnesses then you have to know the rules of Superior Court on objecting to evidence and have the case law to back up why the evidence should be excluded should the court ask for support for the objection.  You need to understand the hearsay rule.  

 

While someone can post case law or rules for you when it comes down to it you will be the one in the courtroom defending this case if you do not hire a lawyer.  I highly suggest you get to court early tomorrow and watch how some of the cases go so that you know what to expect and have less chance of succumbing to fear in a court room that surrounds many pro-se defendants.

 

You may not like my answers but you are going to court TOMORROW and by your own words do not understand the process or the rules.  Now is not the time to coddle you because I guarantee you the court is not going to.  Especially not at the State Court level.

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There is NO tone to my posts.  I give you the facts of your situation and you decide what to do with them.  Before you follow the advice of someone from another state you should be aware she LOST her case.  Not exactly the expert you want to follow.

 

 

 

If the court is asking for a trial brief then you are in Superior/District Court NOT small claims court.  That is a WHOLE different issue and you really need a lawyer. Small claims does not require trial briefs and yours is due Monday at the latest.  My suggestion would be to motion for a continuance so that you can at least consult a lawyer.  Coming up with a salient trial brief in less than a day is going to be nearly impossible.  No one can help you craft one not seeing any of the documents or your answers that you have already filed.  

 

 

It demonstrates the terms you agreed to when you accepted the card and used it.  The court will not be seeking a signed contract this is the most common mistake pro-se defendants make in credit card cases believing that lacking a signed agreement there is no case.  In many states, including MI, the rules of evidence are pro-creditor and the documents a judge will accept are weak at best but sail right through with even the best objections and case law.

 

 

First you need to read their witness list and make sure they do not have an employee coming to testify about those documents.  That would be the one way that they would not need to be notarized.  If they are presenting no witnesses then you have to know the rules of Superior Court on objecting to evidence and have the case law to back up why the evidence should be excluded should the court ask for support for the objection.  You need to understand the hearsay rule.  

 

While someone can post case law or rules for you when it comes down to it you will be the one in the courtroom defending this case if you do not hire a lawyer.  I highly suggest you get to court early tomorrow and watch how some of the cases go so that you know what to expect and have less chance of succumbing to fear in a court room that surrounds many pro-se defendants.

 

You may not like my answers but you are going to court TOMORROW and by your own words do not understand the process or the rules.  Now is not the time to coddle you because I guarantee you the court is not going to.  Especially not at the State Court level.

This is a Judicial District Court. The witness lists have to be exchanged 7 days prior to trial. I cannot afford an attorney. I have contacted several and they all say that their fees would be more than I am being sued for. This is my understanding of the Hearsay rule;             Under MRE 803(6), a record of regularly conducted business activity is exempted from the hearsay rule, but the business practices under which the business record is produced must be shown by the testimony of the custodian or other qualified witness, or by certification that complies with the rule promulgated by the supreme court or a statute permitting certification. Here the documents are not supported by the testimony of the custodian or competent witness, nor are they accompanied by a declaration under oath by the custodian or other qualified person as provided in MRE 902(11). Maiden v. Rozwood 461 Mich 109, 124-25; 597 NW2d 817 (1999), Affidavits must be made on personal knowledge and state with particularity facts admissible as evidence establishing the grounds stated in the motion MCR 2.119(B)(1). 

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This is a Judicial District Court. 

 

That is what I feared.  This is NOT small claims court which is less formal.  District Court will go by ALL the rules of civil procedure and evidence.  However, that sword cuts both ways.  Just as the court should hold the attorney to the rules of evidence you have to know how to legally object to their evidence and get it excluded. You will also have to file a trial brief tomorrow since the actual trial is next Monday and having less than a day to write a brief is a huge obstacle.  That is something that you work on over a couple of weeks.  Even seasoned attorneys do not do this over night as they require several revisions before filing.  

 

Under MRE 803(6), a record of regularly conducted business activity is exempted from the hearsay rule, but the business practices under which the business record is produced must be shown by the testimony of the custodian or other qualified witness, or by certification that complies with the rule promulgated by the supreme court or a statute permitting certification. Here the documents are not supported by the testimony of the custodian or competent witness, nor are they accompanied by a declaration under oath by the custodian or other qualified person as provided in MRE 902(11). Maiden v. Rozwood 461 Mich 109, 124-25; 597 NW2d 817 (1999), Affidavits must be made on personal knowledge and state with particularity facts admissible as evidence establishing the grounds stated in the motion MCR 2.119( B)(1). 

 

They basically have a bunch of paper right now. You said none of it was notarized.  Either they are bringing a witness to attest to the documents (in which case you have to know how to cross examine and impeach their credibility) or they are submitting sworn affidavits attesting to the documents which COULD meet the business records rule(s).

 

Your best hope is that they have no witness and no sworn affidavits.  IF they do not you need to object and make sure you want it noted FOR THE RECORD so that it preserves your appeal if they judge still allows the hearsay documents in as evidence.

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I have not seen much of an indication of "pro-creditor" rules of evidence in "many states". I would be interested in the specifics for MI of the "pro-creditor" rules of evidence. Regardless, it is critical to be an expert on one's rules of evidence and even more important to know how the law interprets them.

 

It is critical to know ones civil rules of procedure very well.

It is critical to comply with deadlines and force one's opponent to comply with their deadlines.

 

I would want to make sure there is a proper record of the MSD hearing and the trial to permit a successful appeal to reverse any errors or abuse of discretion made by the judge that resulted in an adverse to me decision.

 

A plaintiff bringing a cause of action must be properly challenged on and for the record if they fail to prove up by admissible evidence any of the required elements of their cause of action. MI breach of contract required elements:

The elements of a breach of contract action are (1) the existence of a contract between the parties, (2) the terms of the contract require performance of a certain action by the defendant, (3) the defendant breached its obligation to perform, and (4) the plaintiff incurred damages as a result of the breach. Synthes Spine Co, LP v Calvert, 270 F Supp 2d 939, 942 (ED Mich, 2003).

 

The essential elements required in MI to prove up a contract by admissible evidence:

The essential elements of a valid contract are: (1) parties competent to contract; (2) a proper subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Hess v. Cannon Township, 265 Mich.App. 582, 592, 696 N.W.2d 742 (Mich.App.2005).

 

If I show on and for the trial court record that a plaintiff that brings a cause of action for a breach of contract fails to provide admissible evidence for even one of the 9 elements required for BoC & contract, the plaintiff should fail in their cause of action. Either at the trial level or upon my timely and proper appeal.

 

Not a CC agreement but this shows some of the case law in MI relative to signatures:

 

Furthermore, we approve of the following principles set forth in 17 CJS, Contracts, § 62, pp 731-733:

    ignature is not always essential to the binding force of an agreement, and whether a writing constitutes a binding contract even though it is not signed or whether the signing of the instrument is a condition precedent to its becoming a binding contract usually depends on the intentions of the parties. The object of a signature is to show mutuality or assent, but these facts may be shown in other ways....

    In the absence of a statute or arbitrary rule to the contrary, an agreement need not be signed, provided it is accepted and acted on, or is delivered and acted on.

Plaintiff does not deny that he accepted the delivery of the agreements and operated under their terms by, for example, enjoying a leased automobile, an American Express credit card, reimbursement for expenses, and payment of compensation.

...

Affirmed.

---

The "Plaintiff does not deny..."  and similar comments by the courts, in their decisions. light the path and shows the outcome *may* have been different if the party alleged or affirmed differently than the record shows. IMHO

 

An unpublished MI case with a different outcome: AUBURN FINANCIAL CENTER v. Adams, No. 285002 (Mich. Ct. App. June 2, 2009).

Based on the present record, we conclude that there was insufficient evidence of mutual assent to bind plaintiffs to the arbitration provision of the proposed operating agreement.

...

We reverse the trial court's grant of summary disposition for defendant and remand for further proceedings. We do not retain jurisdiction. As the prevailing party, plaintiff may tax costs.

 

Another unpublished decision providing good insight as to how the courts are likely to interpret things:

In response to Citibank's motion, Muldrow argued that Citibank's documents were unsigned and unsupported and, therefore, could not be used to support its motion. She also argued that the affidavit was invalid, that Citibank lacked standing to sue because it was not registered to do business in Michigan, had unclean hands, and violated federal law in seeking to collect the debt.

...

Further, the records plainly established that Muldrow applied for a credit card, which application was approved, transferred a substantial balance to the account, made numerous purchases on the account, made some payments, and ultimately breached the agreement by failing to make the required payments. This evidence was minimally sufficient to establish a meeting of the minds as to the material terms of a lending agreement, Muldrow's breach of that agreement, and the amount of Citibank's damages. See Hess v Cannon Twp, 265 Mich App 582, 592; 696 NW2d 742 (2005) (noting the elements to form a contract); Stoken v JET Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988) (stating that, in order to prove breach of contract, the plaintiff must prove the existence of a contract, a breach of the contract, and damages). Because Citibank properly supported its motion for summary disposition, Muldrow had to respond by presenting evidence that established a question of fact on at least one element of Citibank's claim, which she did not do. Barnard Mfg, 285 Mich App at 374. Therefore, the trial court properly granted Citibank's motion.

...

There were no errors warranting relief.

Affirmed.

--

I view my task, in defending a collection lawsuit, as to object to any evidence that is hearsay or inadmissible with a focus of showing they failed to prove by admissible evidence on or more of the essential elements to their cause of action. I assist the trial judge in ruling in favor of the law and rules (cited in my trial record) that supports my arguments and defeats my opposition's arguments. Having made my proper record I appeal if the judge errors and rules against me.

 

My priority at this point would likely be defeating the MSD and making a proper trial court record so that, if the court should rule against me, I can show that the court has erred on the laws and the admissible evidence. Meanwhile I would want to be preparing for trial. Getting a continuance on the trial date and propounding discovery on opposing, if permitted by the rules, would be something I would be interested in researching. Timely filing any required trial brief documents would be high on my todo list.

 

Having never been sued by a JDB it appears that the defense often pursued against JDBs is the issue of standing. The thread in #10 is likely a good resource and I would speculate it probably touches on the issue of standing.

 

Objection (some insights here: http://www.jameseducationcenter.com/articles/essential-objections-checklist/ ), followed by the reason I am objecting would probably be frequently voiced by me at an MSD/MSJ hearing that is being preserved by a court reporter, audio recording, or whatever is proper in my jurisdiction. If I have no money for a court reporter and there is no recording made by the court I would probably request the court allow me to record it myself and offer to provide opposing a copy of the recording. The worst they can say is no.

 

I would not expect to be sworn in or have to affirm anything and would refuse to be the plaintiff's witness at a motion hearing.

 

I would expect opposing counsel to testify and I would object to it.

 

In federal 28 U.S. Code § 1746 and AZ Rule 80(i). Unsworn declarations under penalty of perjury declarations appear to fill the shoes of a sworn affidavit. I have yet to see a CC related collection use a declaration in AZ. I do not know if declarations are permitted in lieu of affidavits in MI. I did not see MI on this list: http://apps.americanbar.org/dch/thedl.cfm?filename=/IC756000/newsletterpubs/UnswornDecs.DOC . In CA the court rules appear to prohibit the use of an out of state declaration. I have used an out of state declaration in a CA Superior Court on a minor issue and the court did not reject such usage.

 

If MI courts accept declarations by witnesses I would want to make sure that any declarations that opposing has filed with the court were in compliance with the requirements for a declaration in MI.

 

Collection litigation, it is so easy I don't know why everyone doesn't want to do it. :razz:

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I would not expect to be sworn in or have to affirm anything and would refuse to be the plaintiff's witness at a motion hearing.

 

I would expect opposing counsel to testify and I would object to it.

@Credator

 

Opposing counsel will not be testifying as this case is in District Court and the Judge will adhere to all the rules.  This fight is going to be ugly because it is not in the relaxed format of small claims in MI.  By missing the deadline to file an opposition to the MSD the odds are very high the court will grant it and the entire trial issue will be moot.  Add to that even if the MSD is not granted the OP has to file their trial brief tomorrow and the problems compound.  Tomorrow will tell how the court will lean.

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@Clydesmom

@Credator

 

Opposing counsel will not be testifying as this case is in District Court and the Judge will adhere to all the rules.  This fight is going to be ugly because it is not in the relaxed format of small claims in MI.  By missing the deadline to file an opposition to the MSD the odds are very high the court will grant it and the entire trial issue will be moot.  Add to that even if the MSD is not granted the OP has to file their trial brief tomorrow and the problems compound.  Tomorrow will tell how the court will lean.

http://www.jameseduc...ions-checklist/

9. Counsel is testifying.

“OBJECTION: Your Honor, counsel is trying to testify himself, instead of having the witness do it.”

DISCUSSION: The objection that “Counsel is testifying” is heard so often, that we include it in this list of “the basic two dozen.” However, the objection usually could just as well be phrased as “leading” or “argumentative” or “assumes facts not in evidence.” The objection is to parts of the question which contain facts or opinions not in evidence.

 

The MI District Court has limited jurisdiction compared to the Circuit Court in MI. The MI Circuit Court seem more on par with the jurisdiction of an AZ Superior Court. In my experience the AZ Superior Court judges do not "adhere to all the rules". If they did my litigation wins would be much quicker and easier.

 

An appeal of a reversible error made by a MI District Court judge would be made to the MI Circuit Court. I may be wrong, but I doubt the decisions of the MI Circuit Court have any significance as precedent setting or citable law.

 

The need for appellate review would diminish in MI (and elsewhere) *if* we could rely on the "Judge will adhere to all the rules". In google's scholar there are currently 3,510 hits in MI for the phrase "reverse and remand". These cases are likely being remanded back to the Circuit Court and not the District Court.

 

If the circuit court judge's cannot adhere to all the rules and have to often be reversed on appellate review, I am not sure how one could make the assumption that judges in the district court beneath them are somehow better qualified to adhere to the rules.

 

This trial judge did not seem to adhere to the "rule" requiring a jury trial: Benjamin v. SAVIN LAKE SERVICE, INC., No. 304246 (Mich. Ct. App. June 12, 2012).

We find that the trial court erred in concluding that Benjamin was not entitled to a jury trial for his wrongful termination claim. Applying the rule above, Benjamin had a right to a jury trial on his wrongful termination claim,[7] which he appropriately invoked by filing a timely demand.

...

Reversed and remanded for proceedings consistent with this opinion.

--

Whether or not I have representation, when it has my name on the caption, I assume it is my case to win or lose. I will not rely on the judge to do his/her job properly for my ability to "win". It is a risk in litigation that I refuse to take and it is why I believe that if I don't plan to appeal I plan to lose. I suppose others are free to choose to rely on their judge "adhering to all the rules".

 

When opposing counsel does testify (they cannot help themselves), I would immediately object on and for the record if the judge doesn't shut them down mid-sentence.

 

It is not a trivial job that the OP has engineered for themselves IMHO. If an issue matters to me, I would always give it my best. If the opposing party fails to be granted their MSD and a proper trial brief is timely filed it *may* cause the opposing party to become interested in settling FAIK.

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The MI District Court has limited jurisdiction compared to the Circuit Court in MI. The MI Circuit Court seem more on par with the jurisdiction of an AZ Superior Court. In my experience the AZ Superior Court judges do not "adhere to all the rules". If they did my litigation wins would be much quicker and easier.

 

What happens in an AZ court or happened in your case has NO bearing on what will happen in a MI court.  They are not even in the same Federal.District so making a comparison is a waste of time.

 

What your judge did is not relevant unless they moved to MI and are not sitting on the bench here.

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My #16 post presented numbers and facts about MI courts that will appear to remain unchallenged. They appear to be reliable facts to me but others are free to take issue and introduce their contradictory facts.

 

I did take 43 word out of my 542 word post to simply state what should be fairly obvious to anyone that happened to be famiiar with both AZ and MI courts. "The MI Circuit Court seem more on par with the jurisdiction of an AZ Superior Court. In my experience the AZ Superior Court judges do not "adhere to all the rules". If they did my litigation wins would be much quicker and easier."

 

I fail to see any significant controversy in such a simple and high level jurisdictional comparison unless one is somehow sensitive enough to actually be offended at even a tangential jurisdictional scope comparison of the purported rule-adhering MI courts to those scummy rule-violating AZ courts.

 

It is doubtful anyone could read into my mere two sentences that AZ law and rules are the same as MI. I suppose anything is possible even if not plausible.

 

Before I would be comfortable suggesting that the MI District Court is where "the Judge will adhere to all the rules" I would want to review the record of the District Court judges on appeal.

 

The MI Circuit Court that reviews the MI District Court judges decisions for errors made over 3500 reversed and remanded errors. Whether this number is excessive or fairly good compared to other jurisdictions does not matter IMHO. What matters is if I am one of the 3500+ that appealed or one or the unknown litigants that never appealed and my trial judge made a reversible error.

 

Perhaps MI is really different from other states and the lower court judges routinely outshine their appellate judges in making less reversible errors in their decisions based on their better adherence to the rules. I am a bit skeptical and will await supporting facts should they exist.

 

Since I will routinely make a proper trial court record for appeal, I suppose I don't need to concern myself with whether a judge adheres to the rules (like MI District Court is purported to) or does not adhere to the rules/ law (like I have experienced in AZ). I just document it for the next judge to reverse. Others are free to rely on a unsupported claim, "that in District Court and the Judge will adhere to all the rules". The numbers show that It does not work that way in the MI Circuit Court that does the appellate review for the MI District Court.

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@cmc54. I don't know mi rules well, but read BMC100's thread pinned at the top of this forum. He walks you through the process. You are late to the game, but if they did not include an affidavit that was signed within 10 days of serving you I believe they cannot use one in a prima facie case, ie summary judgement. Bmcs explains it in his thread, I think it can help you.

Thank you

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@Credator

 

Opposing counsel will not be testifying as this case is in District Court and the Judge will adhere to all the rules.  This fight is going to be ugly because it is not in the relaxed format of small claims in MI.  By missing the deadline to file an opposition to the MSD the odds are very high the court will grant it and the entire trial issue will be moot.  Add to that even if the MSD is not granted the OP has to file their trial brief tomorrow and the problems compound.  Tomorrow will tell how the court will lean.

I have lost much sleep and a chunk of my life writing my objection to the MSD and trial brief.  I was pretty confident with what I had done and thought it was well written. Then I read your post and now I am scared half to death because you make it sound like it won't matter because the Plaintiff can get away with anything. You make it sound as if I'm beaten before I walk into the courtroom--so why bother.

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My #16 post presented numbers and facts about MI courts that will appear to remain unchallenged. They appear to be reliable facts to me but others are free to take issue and introduce their contradictory facts.

 

I did take 43 word out of my 542 word post to simply state what should be fairly obvious to anyone that happened to be famiiar with both AZ and MI courts. "The MI Circuit Court seem more on par with the jurisdiction of an AZ Superior Court. In my experience the AZ Superior Court judges do not "adhere to all the rules". If they did my litigation wins would be much quicker and easier."

 

I fail to see any significant controversy in such a simple and high level jurisdictional comparison unless one is somehow sensitive enough to actually be offended at even a tangential jurisdictional scope comparison of the purported rule-adhering MI courts to those scummy rule-violating AZ courts.

 

It is doubtful anyone could read into my mere two sentences that AZ law and rules are the same as MI. I suppose anything is possible even if not plausible.

 

Before I would be comfortable suggesting that the MI District Court is where "the Judge will adhere to all the rules" I would want to review the record of the District Court judges on appeal.

 

The MI Circuit Court that reviews the MI District Court judges decisions for errors made over 3500 reversed and remanded errors. Whether this number is excessive or fairly good compared to other jurisdictions does not matter IMHO. What matters is if I am one of the 3500+ that appealed or one or the unknown litigants that never appealed and my trial judge made a reversible error.

 

Perhaps MI is really different from other states and the lower court judges routinely outshine their appellate judges in making less reversible errors in their decisions based on their better adherence to the rules. I am a bit skeptical and will await supporting facts should they exist.

 

Since I will routinely make a proper trial court record for appeal, I suppose I don't need to concern myself with whether a judge adheres to the rules (like MI District Court is purported to) or does not adhere to the rules/ law (like I have experienced in AZ). I just document it for the next judge to reverse. Others are free to rely on a unsupported claim, "that in District Court and the Judge will adhere to all the rules". The numbers show that It does not work that way in the MI Circuit Court that does the appellate review for the MI District Court.

I do not understand most of what you said. Plain english would be good and some kind of order to what you are saying. You are all over the place. Just saying........

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I do not understand most of what you said. Plain english would be good and some kind of order to what you are saying. You are all over the place. Just saying........

Thanks for the feedback. I'll try to work on that.

 

Perhaps my post at #14 is more readable.

 

Best of luck.

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I have lost much sleep and a chunk of my life writing my objection to the MSD and trial brief.  I was pretty confident with what I had done and thought it was well written. Then I read your post and now I am scared half to death because you make it sound like it won't matter because the Plaintiff can get away with anything. You make it sound as if I'm beaten before I walk into the courtroom--so why bother.

 

What you have done may have been fine.  Given what you posted yesterday I had my doubts that you would get that far.  The court may give you some leeway as a pro-se defendant and they may not.  Not knowing which District Court it is I cannot say.  I didn't say the Plaintiff would get away with anything.  I said if you did not respond to the motion(s) then the court would have no choice but to award the MSD.  There is a huge difference.

 

This is NOT a game as some would lead you to believe.  Small claims court tends to be a little less formal but District Court is NOT.  You need to be prepared for ANYTHING because even the Judge could start grilling you and if you collapse so does your defense.  

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What you have done may have been fine.  Given what you posted yesterday I had my doubts that you would get that far.  The court may give you some leeway as a pro-se defendant and they may not.  Not knowing which District Court it is I cannot say.  I didn't say the Plaintiff would get away with anything.  I said if you did not respond to the motion(s) then the court would have no choice but to award the MSD.  There is a huge difference.

 

This is NOT a game as some would lead you to believe.  Small claims court tends to be a little less formal but District Court is NOT.  You need to be prepared for ANYTHING because even the Judge could start grilling you and if you collapse so does your defense.  

Went to court, another lawyer substituted for the Attorney who filed the case and the MSD. He spoke to me a few minutes before the hearing to find out if I would be willing to settle. He offered a settlement for $200 less than the original amount. I said no, so we went into court. I explained to the judge that I did not receive the MSD until 5/27, and I had prepared an answer but did not have time to file it by 6/2 (per rules of procedure, it had to be filed 7 days prior to hearing). He asked if I had it with me--I handed it to him. He said that what I had prepared was much more involved than what he anticipated. He asked me if I had any legal training, did I have a lawyer help me, was I a law student. I told him no--I wrote it myself. After explaining all the factors involved, that I am entitled to have an attorney and where to go to find one that would represent me for little cost, or for free (Legal Aide), and a short version of this kind of lawsuit and the legal issues, he started reading out loud , the complaint, and the summary disposition. He did not seem to like the fact that I did not back up my Interrogatory questions with facts or proofs. He explained that I cannot simply deny a question--I had to give reasons to for my denials. He went on to explain the dangers of a frivolous defense and sanctions that could be applied if I was wasting the court's time. That said, he read my answer to the MSD and asked me what I was basically objecting to. I told him that the proofs presented by Plaintiff were not authenticated, nor was there  a clear chain of title, and the 1 credit card statement had an address on it I had never lived at. He asked Plaintiff if he had any other bank statements. Plaintiff said no, the one he included was all LVNV received from Credit One when they bought the debt. The judge said that he usually receives a stack of them with purchases and payments on them. He must have found something in my answer that showed I had something to base my objection on. He did not deny the MSD, said that he was going to continue the case, grant me leave of the court to amend my answers, and extend discovery for 30 days, extending trial for another 60 days (attorney asked for 60 after the judge said 45). He said that would allow Plaintiff to come up with proofs to those that  I had objected to and/or witnesses. He said that it would give me time for the same and that I could send Plaintiff my own Interrogatories and file any affidavits of my own. I would receive all of this information in the mail explaining everything. The end. I think this was all good, but not a victory and I know I have a long way to go.  

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