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Please help me with my MI Defendant motion for MSD


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Hey guys, to give you a background of my case, I have a case where i am being sued by midland funding for a defaulted Chase debt.  I admitted that I defaulted on the debt....however, ive been arguing that midland doesn't have standing to sue me.  Plaintiff filed their MSJ and it got denied....now, im filing my own msj....could someone please critique my msj.  I know that im supposed to bring it under MCR.....but im not sure which one to choose.  Thank you.

 

 

 

 

 

Brief

 

 

Introduction

 

       Plaintiff, Midland Funding is attempting to obtain a judgment in the amount of $####.## However, they have not demonstrated that have they have standing to sue the defendant. Defendant motion's for summary disposition.

 

Facts

 

       Plaintiff does not have standing to obtain monetary fees from Defendant via a judgment. Plaintiff has not proved that he is the rightful owner of the alleged debt.

The documents that have been submitted by Plaintiff are inadmissible evidence, as they are hearsay.

 

Law and argument

 

       To begin with, during the Discovery process, Defendant requested that Plaintiff provide the original signed credit card agreement between Defendant and Chase Bank. Plaintiff failed to provide this document or an original written agreement between Defendant and the original creditor. Plaintiff's failure to produce the contract on which its claim is based is fatal to its claims. MCR 2.113(F) requires that, when a claim is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading. More specifically it says:

 

(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 in the record is stated in the pleading;

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

© inaccessible to the pleader and the pleading so states, giving the

reason; or

(d) of a nature that attaching the instrument would be unnecessary or

impractical and the pleading so states, giving the reason.

 

In Woodward Nursing Home v Medical Arts, 2006 Mich App LEXIA 207 (Mich Ct of App 2006), the Court ruled that the contract claim warranted dismissal because plaintiff had failed to provide copies of the pertinent contracts. Plaintiff's failure to attach a copy of the real contract to its complaint is fatal to its claim. In addition, in English Gardens Condominium, LLC v Howell Twp, 273 Mich App 69, 81; 729 NW2d 242, 250 (2006), the plaintiff failed to produce a copy of the contract in which its claim was based. The magnitude of the fact that the plaintiff did not produce this document was so grand that it “warrant(ed) dismissal of the contract claim without prejudice.”

 

       In addition, Plaintiff has attempted to submit into evidence an affidavit of Paul Fruth. However this is not admissible evidence. Paula Fruth states that she is authorized to make this affidavit on behalf of Midland Credit Management, Inc. According to MCR 2.119( B), an affidavit must be made on personal knowledge and state with particularity facts admissible as evidence establishing the grounds stated in the motion. Plaintiff's affidavit signer does not state with particularity the data that she is basing her testimony on. She does not have the required personal knowledge to support Plaintiff's claim, as she is an employee of the assignee rather than the employee of the original creditor. In many cases, courts have upheld the fact that an employee of the assignee of a debt does not have the personal knowledge necessary to testify about events or documents pertaining to the original creditor. Please see Assett Acceptance v Lodge, 325 SW3d 525, (MO App 2010). Because Paula Fruth not have personal knowledge of how Chase Bank's business records were kept, the affidavit is hearsay. As a result, she can not testify as to the accuracy or truthfullness of any of the documents that Plaintiff has attempted to submit into evidence. In addition, the affidavit of Ms. Fruth is untimely, as it does not properly comply with MCL 600.2145. This rule requires that an affidavit is submitted within ten days of the issuance of the summons or complaint. The summons was issued on July 22, 2013; however, the affidavit was not signed until November 26, 2013. Therefore, the courts are unable to assign prima facie evidentiary weight to an untimely affidavit.

 

        Next, the documents submitted by Plaintiff are inadmissible hearsay. Under MRE 803(6), a record of regularly conducted activity is excepted from the hearsay rule, but the business practice under which the record was produced must be “shown by the testimony of the custodian or other qualified witness, or by certification that complies with a rule promulgated by the supreme court or a statute permitting certification...” Here, the documents are not supported by the testimony of the custodian or other competent witness nor are they accompanied by a written declaration under oath by the custodian or other qualified person as provided in MRE 902(11).

 

       Moreover, Plaintiff has not provided a complete assignment of the alleged debt. The Michigan Court of Appeals has reaffirmed the necessity of proving the assignment. In Brown Bark, II LP v Bay Area Floorcovering & Design, 2011 Mich App LEXIS 1003, (May 21, 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. Although the allonge was presented as evidence at trial, it was not attached to the note, nor did the plaintiff include the agreement referenced in the allonge as evidence. Because the trial court did not have an opportunity to review the the referenced agreement, and consequently could not determine what limitations might exist, they could not conclude that the half-page document constituted National City Bank's intent to transfer all of its rights related to the defaulted loan. In the present case, Midland Funding LLC has not produced the entire agreement by which they allegedly acquired the debt. Furthermore, the alleged affidavit of sale of account by original creditor, the alleged bill of sale, nor the closing statement state that Defendant's account was one of the accounts that Midland Funding LLC purchased from Chase Bank.

Conclusion

       Plaintiff, Midland Funding LLC has failed to show that they have standing in this court case. Plaintiff has not met his burden of proof, as they have not proved that Defendant's alleged account was one of the accounts purchased. The alleged Bill of Sale from the original creditor does not contain any personal information pertaining to the defendant named in this suit.

Wherefore, Defendant respectfully requests that this Honorable Court grant judgment in Defendant's favor and dismiss this suit with prejudice.

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@ar4966

First of all, congrats on getting this far!  What reason did the judge give for denying Midland's MSD (for those reading who are not familiar, Michigan calls summary judgment "summary disposition" or MSD)? Did you submit an opposition brief? 

 

Second, unless you're trying to get Midland to dismiss or settle, you need to understand more fully what you must do and why in order to prevail on your motion with your judge. In drafting your MSD, did you follow the format that Midland's attorney used in its MSD? 

 

Here's an informative overview on Motions for Summary Disposition from Michigan's Institute of Continuing Legal Education (ICLE)

http://www.icle.org/modules/books/chapter.aspx?chapter=17&book=2012555670&lib=litigation&sections=2&from=store

exerpt:

"The most common basis for a motion for summary disposition is MCR 2.116©(10): there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. A party seeking summary disposition under this subpart is required specifically to identify those issues about which the party believes there are no disputed material facts and must submit affidavits, depositions, admissions, or other documentary evidence in support of the motion. When faced with a properly supported motion under MCR 2.116©(10), an opposing party may not rest on mere allegations or denials in its pleadings but must by affidavit or other documentary evidence set forth specific facts showing that there is a genuine issue for trial. Granting the nonmoving party the benefit of any reasonable doubt about material facts, the court must then determine whether a factual dispute exists to warrant a trial—but may not make factual findings or weigh credibility. Although there are no specific deadlines set forth in the rule for such motions, they are generally considered to be premature if discovery concerning a disputed issue is incomplete.

If the grounds asserted for summary disposition are based on MCR 2.116©(8)(9), or (10), the court “shall give” the parties an opportunity to amend their pleadings to correct the defect as provided by MCR 2.118 unless the evidence indicates that an amendment would not be justified. MCR 2.116(I)(5)."

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@Brotherskeeper, thank you very much for the information!  The judge was a visiting judge and didn't tell the regular judge why he denied it.  Now the regular judge is back and he has encouraged me to file my own motion.  Yes, I followed the format of midland for my summary disposition...is that bad? Im scared that i will file the motion under the wrong MCR.  If I file it under MCR 2.116c10, do you think i would be ok?  Thank you!

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@ar4966

Don't you have another thread that deals with a signed application? Is this the same lawsuit? This is dealt with under a breach of contract cause of action in "Defense of Assigned Consumer Debts," by California consumer attorney Clinton Rooney. If you haven't read this, you should. 

http://www.courts.ca.gov/partners/documents/2011SRL5eRooney.pdf

"To establish a contract's validity, the debt buyer must also prove that the consumer assented to the terms and received consideration. A common tactic of debt buyers is to introduce a signed application, which is usually merely an offer, and claim that the application establishes the consumer's assent to the terms of a nonexistent contract. Because courts are prone to accept this specious argument, at trial you must emphasize that the signed application is simply an offer, not a contract. The debt buyer must establish the contract itself in order to prevail on a claim of breach or, in the case of common-counts causes of action, to establish a right to charge interest or fees. The debt buyer may claim that use of the account constitutes acceptance of the offer. This is false, however, since the signed application typically contains no interest rate and fees unstated and thus determined by default under state law, which typically is far more consumer-friendly than the onerous terms in credit-card contracts contract terms. At best, acceptance of an offer by use of the account should yield a verbal contract, with terms such a with terms such as consumer-friendly than the onerous terms in credit-card contracts."
 
"Defending Junk-Debt-Buyer Lawsuits," by Peter A. Holland is another great article. 
 
There is so much about your case that we don't know, so it's hard to suggest grounds for your MSD. More experienced CIC members are needed here. Did you plead any affirmative defenses under MCR 2.116( C )(7)--like statute of limitations or payment--that you need to include in your MSD?
D) Time to Raise Defenses and Objections. The grounds listed in subrule ( C ) must be raised as follows:
 
(1) The grounds listed in subrule ( C )(1), (2), and (3) must be raised in a party’s first motion under this rule or in the party’s responsive pleading, whichever is filed first, or they are waived.
 
(2) The grounds listed in subrule ( C )(5), (6), and (7) must be raised in a party’s responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party’s first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.
 
(3) The ground listed in subrule ( C )(4) and the ground of governmental immunity may be raised at any time, regardless of whether the motion is filed after the expiration of the period in which to file dispositive motions under a scheduling order entered pursuant to MCR 2.401.
 
(4) The grounds listed in subrule ( C )(8), (9), and (10) may be raised at any time, unless a period in which to file dispositive motions is established under a scheduling order entered pursuant to MCR 2.401. It is within the trial court’s discretion to allow a motion filed under this subsection to be considered if the motion is filed after such period.
 
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@Brotherskeeper, no its not the same lawsuit.  For this case they don't have the original signed credit card application.  Thank you for the helpful info that you posted.  I've decided ill go ahead and use MCR 2.116 C (9) and (10)....hopefully ill be ok.  :-)

MCR 2.116( C )(10) is the one to read up on and look at published cases for the burden you must meet to prevail. 
IANAL, but not sure about 2.116( C )(9), perhaps ( C )(8)? Or, did you make any counterclaims they didn't defend against? see http://thelawdictionary.org/defense/   
 
(8) The opposing party has failed to state a claim on which relief can be granted.
 
(9) The opposing party has failed to state a valid defense to the claim asserted against him or her.
 
"Finally, note that if a party bringing a motion for summary disposition mislabels the motion by incorrectly stating the subrule of MCR 2.116 that the party relies on, the defect is not fatal as long as summary disposition is appropriate under another subrule. Ellsworth v Highland Lakes Dev Assocs198 Mich App 55, 57–58, 498 NW2d 5 (1993); see also Detroit News, Inc v Policemen & Firemen Ret Sys252 Mich App 59, 66, 651 NW2d 127 (2002) (“If summary disposition is granted under one subpart of the court rule when it was actually appropriate under another, the defect is not fatal and does not preclude appellate review as long as the record permits review under the correct subpart.”) (citation omitted)."
 
Again, IANAL, but it looks like you're covered if you mislabel the subrule as long as MSD is appropriate under another subrule.
We had a solid SOL defense which became clear after discovery, so we--after defeating their MSD--did a motion to dismiss, or in the alternative, a MSD, which we prevailed on. 
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@ar4966

These judicial benchbooks are invaluable resources and you can safely use the cases cited in them, as they are updated every year.

1.)  Michigan Civil Proceedings Benchbook for judgeshttp://courts.mi.gov/education/mji/Publications/Documents/Circuit-Court-Civil.pdf

 

See 2.7 Standing Page 2‐33; 3.10 Summary Disposition Page 3‐32; peruse the contents.

 

2.)  Evidence Benchbook for judgeshttp://courts.mi.gov/education/mji/Publications/Documents/Evidence.pdf

 

Here are 2 good cases to read on the standard of review for MSD:

Maiden v Rozwoodhttp://scholar.google.com/scholar_case?q=maiden+v+rozwood&hl=en&as_sdt=4,23&case=7860266323170384999&scilh=0

"Today we clarify the correct legal standard under MCR 2.116( C )(10) because our Court has inconsistently applied the standard since the 1985 amendment of the court rules.  Compare Johnson v. Detroit, 457 Mich. 695, 579 N.W.2d 895 (1998);Oakland Co. Bd. of Co. Rd. Comm'rs v. Mich. Property & Casualty Guaranty Association, 456 Mich. 590, 575 N.W.2d 751 (1998); Landelius v. Sackellares, 453 Mich. 470, 556 N.W.2d 472 (1996); Quinto v. Cross & Peters Co, supra, with Lytle v. Malady (On Rehearing), 458 Mich. 153, 579 N.W.2d 906 (1998);Weymers v. Khera, 454 Mich. 639, 563 N.W.2d 647 (1997); Radtke v. Everett, 442 Mich. 368, 501 N.W.2d 155 (1993); Farm Bureau Mut. Ins. Co. of Michigan v. Stark, 437 Mich. 175, 468 N.W.2d 498 (1991).The reviewing court should evaluate a motion for summary disposition under MCR 2.116( C )(10) by considering the substantively admissible evidence actually proffered in opposition to the motion. A reviewing court may not employ a standard citing the mere possibility that the claim might be supported by evidence produced at trial. A mere promise is insufficient under our court rules."

 

Quinto v Cross & Peters Co.http://scholar.google.com/scholar_case?q=quinto&hl=en&as_sdt=4,23&case=15856027126319033867&scilh=0

"In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. Neubacher v. Globe Furniture Rentals, 205 Mich.App. 418, 420, 522 N.W.2d 335 (1994). The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Id. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists.  McCart v. J Walter Thompson, 437 Mich. 109, 115, 469 N.W.2d 284 (1991). If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly grantedMcCormic v. Auto Club Ins. a$$'n, 202 Mich.App. 233, 237, 507 N.W.2d 741 (1993)."

 

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@Brotherskeeper, i really appreciate ur help! ! Would you happen to know if i have to file my own affidavit if I'm filling a motion under mcr 2.116 c 10?

 

http://statecasefiles.justia.com/documents/michigan/court-of-appeals-unpublished/20100706_C289856_67_289856.OPN.PDF?ts=1323898484

'First, defendants have not identified any court rule or other authority requiring the submission of an affidavit in support of a ©(10) motion. In fact, MCR 2.116(G)(3) provides 
that “[a]ffidavits, depositions, admissions or other documentary evidence in support of thgrounds asserted in the motion are required” when the motion is brought pursuant to MCR 
2.116©(10)(emphasis added). An affidavit, then, is but one of the identified forms of evidence that may be submitted. Second, the trial court was free to consider the submitted documentation as long as there was a plausible basis for its admission. MCR 2.116(G)(6) provides: 
 
Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule ©(1)-(7) or (10) shall only be 
considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion. (emphasis added). 
 
With a proper foundation, the documents would be admissible as records of regularly conducted activity. See MRE 803(6); Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 373-374; 775 NW2d 618 (2009).'
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@ar4966

I accidentally posted the above before I was finished. We don't know enough about the facts, evidence and procedural history of your case to be of much help. Is this an account stated cause of action? If so, did you submit an affidavit denying the account stated with your answer? What do you think you need to include in an affidavit? Do you have documentary evidence or admissions to submit?

 

I'm afraid I don't have a handle on whether you're cutting and pasting from BMC100's documents or if you understand what you must do and why--based on the specific facts of your case. 

 

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@Brotherskeeper, no, I didn't know to file an affidavit with my answer, unfortunately...found the forum later.....however, I did eventually make an affidavit and got it notarized. it basically said how I dispute the amount that Plaintiff is claiming that I owe, I am not in possession of the terms and conditions, I never entered into an agreement with midland funding, and how midland doesn't have standing.....I got it notatized back in February......do you think id be able to use this in filing my msj since its dated some months back?

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@Brotherskeeper, no, I didn't know to file an affidavit with my answer, unfortunately...found the forum later.....however, I did eventually make an affidavit and got it notarized. it basically said how I dispute the amount that Plaintiff is claiming that I owe, I am not in possession of the terms and conditions, I never entered into an agreement with midland funding, and how midland doesn't have standing.....I got it notatized back in February......do you think id be able to use this in filing my msj since its dated some months back?

Sorry this is so long. We really have little idea of what's gone on in your case, other than it appears to be typical JDB. The brief you posted above is lacking. It's too hard to help without knowing so much more. Please answer:

1.)  Are you being sued for an Account Stated?

2.)  Are there any other causes of action, such as breach of contract, unjust enrichment?

3.)  Did you request discovery--documents and admissions--that they responded to?

4.)  What grounds did your JDB use in its MSD? MCR 2.116( C )(9) and (10)?

5.)  Did you file an opposition brief to their MSD?

6.)  Did you submit your affidavit of denial with your opposition brief?

7.)  If not, are you saying you drafted an affidavit and never gave it the court?

8.)  Does the affidavit you drafted comply with the required elements below? 

 

From the Judge's Benchbook:

http://courts.mi.gov/education/mji/Publications/Documents/Circuit-Court-Civil.pdf

B. Affidavit (If Required)
“If an affidavit is filed in support of or in opposition to a motion, it
must:
“(a) be made on personal knowledge;
“( b ) state with particularity facts admissible as evidence
establishing  or  denying  the  grounds  stated  in  the
motion; and 
“( c )  show  affirmatively that the  affiant, if  sworn  as  a
witness, can testify competently to the facts stated in the
affidavit.” MCR 2.119( B )(1). .
 
An affidavit is valid if it is: “(1) a written or printed declaration or
statement of facts, (2) voluntarily made, and (3) confirmed by the
oath or affirmation of the party making it, taken before a person
having authority to administer such oath or affirmation.” Sherry v
East  Suburban  Football  League,  292  Mich  App  23,  31  (2011).  An
affidavit lacking notarization is invalid, and a trial court may refuse to consider
it sua sponte or on motion by a party. Sherry, supra at 31. 
 
All papers or parts of papers that are referred to in the affidavit
must be attached to the affidavit as sworn or certified copies, unless
the papers or copies:
“(a) have already been filed in the action;
“( b ) are matters of public record in the county in which
the action is pending;
“( c ) are in the possession of the adverse party, and this
fact is stated in the affidavit or motion; or 
“(d) are of  such nature that attaching them would be
unreasonable  or  impracticable,  and  this  fact  and  the
reasons are stated in the affidavit or the motion.” MCR
2.119( B )(2).
 
Here's info from MsWolverine's  Michigan thread post #137. The italicized bolded text (except Eaton County; you'd put your county) is required for an affidavit in support or opposition to an MSD.

I am NOT an attorney, so do not rely on my opinions! There are better affidavit examples on this forum, but basically it has your case header (Savoir posted a template somewhere) Affidavit of MsWolverine, and goes something like this:

AFFIDAVIT DENYING PLAINTIFF'S CLAIM

NOW COMES Defendant in Pro Per, MsWolverine, whose residence is xxxxx, MI 48xxx, certifies and says:

1.  I am a resident of the State of Michigan, Eaton County, and I am a competent person over 18 years of age. This is affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify competently to the facts in this affidavit.

2.  I deny Plaintiff's statement of account served upon me on xxxx.

3.  I deny I am justly indebted to Plaintiff in the amount of $1300.

4.  Plaintiff never extended credit to me.

5.  There have been no transactions between Plaintiff and me.

6.  I disputed the alleged debt account with Plaintiff. The Experian, Equifax an TransUnion credit reporting agencies all report that the alleged account is disputed by consumer. Upon information and belief, Plaintiff has possession of the credit agency reports. Or, attached are true and correct copies of the three reports accessed online on xxxx. 

 

I certify under penalty of perjury that the foregoing statements are true and correct. 

Dated: December ___, 2013       _________________________(MsWolverine's signature)

                                                    MsWolverine

STATE OF MICHIGAN

COUNTY OF EATON

Signed and sworn to (or affirmed) before me on:____________

My commission expires on:___________

(seal)                                                                     _________________(Notary's signature)

                                                                             Notary Public

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