justiceforall3

Responding to Discovery Request, Pending MSJ, LVNV, Michigan

Recommended Posts

I apologize for not getting back to this thread in a while, been extremely busy.  Anyway, here is where we are at.

 

Tomorrow will be exactly 2 weeks since my last hearing.  The Plaintiff did respond to my Letter to Confer (dated Aug 4th, but mailed Aug 13th), responding with objections similar to the ones in Discovery.  The only difference is this time they admitted they do not have the remaining bank statements and have "provided Defendant copies of all statements currently in its possession, custody and control." They objected to the request for the account agreement, stating that the bank statements "indicate terms of the account and balance due and owing." They also objected to the assignment piece, stating that the documents they gave in Discovery were sufficient to the court to prove assignment.

 

In response to brotherskeeper's question, I do not believe they filed their response to my letter with the court, at least my copies don't show it being filed.  The document they wanted to give to the Judge appeared to be an excel spreadsheet similar to the one they gave me in discovery, except that it wasn't all blacked out and redacted.  I didn't get that good of a look at it.  Can I simply go to court and request to see what was filed?  In addition, would the Judge actual file an order for them to compel to my letter?

 

I am going to type up my 3rd amended answer and affidavit and post it for review.  My plan is to simply lay it out again, and attach their objections to my letter to confer.

Share this post


Link to post
Share on other sites

First run at my 3rd amended answer and affidavit...

 

 

THIRD AMENDED ANSWER TO COMPLAINT

 

            On August 11, 2014. at Plaintiff's motion hearing for summary disposition, this Honorable Court ordered Plaintiff to produce documents in response to Defendant's discovery requests by August 25, 2014. After such time, this Court gave leave for Defendant to amend his answer and affidavit. NOW COMES, Defendant Pro Se, Justiceforall3 and states unto this Honorable Court as follows:

JURISDICTIONAL ALLEGATIONS

            1.         Answering paragraph 1, the Defendant denies the allegations contained therein.  Plaintiff has not provided the documentation attached to the Complaint that the alleged agreement was duly assigned in the normal course of business to Plaintiff.

            2.         Answering paragraph 2, the Defendant admits this allegation in its entirety.

            3.         Answering paragraph 3, the Defendant admits this allegation in its entirety.

GENERAL ALLEGATIONS

            4.         Answering paragraph 4, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of referenced “Agreement”.  Defendant denies the alleged referenced “Agreement” is in his possession.

            5.         Answering paragraph 5 the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of referenced “Agreement”.

            6.         Answering paragraph 6, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of referenced “Agreement” and terms.

            7.         Answering paragraph 7, the Defendant denies the allegations contained therein.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced business records attached to the affidavit or complaint. 

            8.         Answering paragraph 8, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of account, let alone any disputes.

            9.         Answering paragraph 9, the Defendant denies the allegations contained therein.   Defendant denies receiving any benefit from Plaintiff causing a loss to Plaintiff.

COUNT I

BREACH OF CONTRACT

            10.       Answering paragraph 10, the Defendant restates his answers to paragraphs 1 through 9 the same as if set forth herein word for word.

            11.       Answering paragraph 11, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of account, let alone any disputes, referenced contract “Agreement” and its alleged terms.

 

COUNT II

ACCOUNT STATED

            12.       Answering paragraph 12, Defendant restates his answers to paragraphs 1 through 11 the same as if set for therein word for word.

            13.       Answering paragraph 13, the Defendant denies the allegations contained therein.  Plaintiff has not provided the documentation attached to the Complaint that the alleged agreement was duly assigned in the normal course of business to Plaintiff.

            14.       Answering paragraph 14, the Defendant denies the allegations contained therein.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced business records attached to the affidavit or complaint. 

 

 

AFFIRMATIVE DEFENSES

Affirmative Defense I

            15.  Failure to state a claim.  Plaintiff’s and Plaintiff’s Affidavit conclusory statements are offered without the referenced sworn business records attached to the complaint or affidavit to show the existence of a valid contract for the alleged account with Plaintiff’s assignor and Plaintiff’s ownership of it as assignee.

Affirmative Defense II

            16.   Lack of standing.  Plaintiff does not have standing to assert this claim and has failed to state a cause of action for which relief can be granted.

           

            WHEREFORE, the Defendant, Justiceforall3, requests that his Honorable Court dismiss Plaintiff’s Complaint together with costs so wrongfully sustained.

 

            Dated August 25, 2014                                  Respectfully submitted,

 

                                                                                    _______________________________

                                                                                    Justiceforall3

                                                                                    In Pro Per

                                                                                    123 My Street

                                                                                    My City, Michigan 48XXX

Share this post


Link to post
Share on other sites

@justiceforall3

 

What is the difference between what is in bold above and what the judge refused to accept at the MSD hearing, but JDB hasn't yet provided to you? Is the "declaration of account transfer" notarized or sworn in any way? 

Remember we can't see what evidence or lack thereof you've been given. Please answer the above bolded question? 

 

I apologize for not getting back to this thread in a while, been extremely busy.  Anyway, here is where we are at.

 

Tomorrow will be exactly 2 weeks since my last hearing.  The Plaintiff did respond to my Letter to Confer (dated Aug 4th, but mailed Aug 13th), responding with objections similar to the ones in Discovery.  The only difference is this time they admitted they do not have the remaining bank statements and have "provided Defendant copies of all statements currently in its possession, custody and control." They objected to the request for the account agreement, stating that the bank statements "indicate terms of the account and balance due and owing." They also objected to the assignment piece, stating that the documents they gave in Discovery were sufficient to the court to prove assignment.

 

In response to brotherskeeper's question, I do not believe they filed their response to my letter with the court, at least my copies don't show it being filed.  The document they wanted to give to the Judge appeared to be an excel spreadsheet similar to the one they gave me in discovery, except that it wasn't all blacked out and redacted.  I didn't get that good of a look at it.  Can I simply go to court and request to see what was filed?  In addition, would the Judge actual file an order for them to compel to my letter?

 

I am going to type up my 3rd amended answer and affidavit and post it for review.  My plan is to simply lay it out again, and attach their objections to my letter to confer.

 

@justiceforall3

1.) Do you have proof that their 8/4 response to your M&C letter was mailed on Aug. 14? This means it was prepared before the MSD hearing but mailed after they were ordered by the judge to produce. You may still get something from them tomorrow or later. It's hard to imagine they will disobey the judge's order, but you never know. 

 

2.) IANAL, but I'd want to know what my court file says about what the judge ordered at the MSD hearing. He ordered them from the bench (and not on a motion to compel) to produce your requested documents, but you don't know if he wrote that order in your case file.  I'm not clear if they would file their response with the court or not to show they had complied with the judge's order. If there is a notation in your file, get a copy from the clerk. In our cases, the clerk automatically mailed those out to us.

 

3.) Your 3rd amended answer and counter affidavit need to include any new information after the 8/25 deadline. Also, you know so much more about what they don't have than you did when you first answered and amended. IANAL but it would be beneficial to your case to think very strategically as you prepare them. From what you related about your MSD hearing, you suggested that your judge had not really read your oppo brief beforehand. 

Share this post


Link to post
Share on other sites

DEFENDANT'S SECOND AMMENDED AFFIDAVIT DENYING PLAINTIFF'S ACCOUNT STATED CLAIM

 

NOW COMES Defendant in Pro Per, Justiceforall3, whose residence is 123 My Street, My Street, MI 48XXX, certifies and says the following:

 

1.  I am a resident of the State of Michigan, Oakland County, and I am a competent person over 18 years of age. This 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 opening an account with the Plaintiff or its alleged assignor.

3.  I deny that I am in possession of the "Agreement" alleged in Plaintiff's Complaint at paragraph 4.

4.  I deny receiving statements from the Plaintiff or its alleged assignor prior to this suit.

5.  I deny receiving repeated demands for payment from the Plaintiff or its alleged assignor prior to this suit.

6.  I deny making payments to the Plaintiff or its alleged assignor.

7.  I deny that there have been any transactions or course of dealing between Plaintiff or its alleged assignor and me.

8.  I deny I am justly indebted to Plaintiff in the amount of $XXX.

9.  On July 28th, with email consent previously established with Plaintiff, I emailed a Letter to Confer to Plaintiff. A correct and true copy of this letter is attached as Exhibit 1.

10.  On August 11th, at Plaintiff's motion hearing for summary disposition, this Honorable Court ordered Plaintiff to produce all documents requested in my Letter to Confer by August 25th, and also granted leave for me to amend my answer.

11.  On August 13th, Plaintiff responded and objected to my Letter to Confer requests.  A correct and true copy of Plaintiff's response and objections is attached as Exhibit 2.

12.  As of August 25th, I have not received any of the documents requested in my Letter to Confer.

 

 

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

 

 

 

Dated: August ___, 2014                               _________________________

                                                                                      Justiceforall3

 

STATE OF MICHIGAN

COUNTY OF OAKLAND

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

My commission expires on:___________

                                                                    Signature______________________________________________

Share this post


Link to post
Share on other sites

The declaration of account transfer was not notarized or sworn in at all.  I did not receive anything from the court showing that the Judge actually ordered them to comply (in writing), I will check tomorrow with the clerk to see if anything was filed.

 

I have the letter envelope date stamped for Aug 14th. 

Share this post


Link to post
Share on other sites

The declaration of account transfer was not notarized or sworn in at all.  I did not receive anything from the court showing that the Judge actually ordered them to comply (in writing), I will check tomorrow with the clerk to see if anything was filed.

 

I have the letter envelope date stamped for Aug 14th. 

@justiceforall3

Just so I'm clear--other than their first affidavit attached to the complaint, you have no other affidavit or sworn declaration for any of the documents from them?  

Share this post


Link to post
Share on other sites

correct - they only submitted the original affidavit with their complaint - no other affidavit.

 

Fingers crossed you get nothing else tomorrow. I'm researching "supplemental affidavits."  IANAL, but the judge's bench order to produce, the new response to the M&C (8/4 mailed 8/14) and anything else you get or that you get nothing else, should go in a supplemental affidavit to your affidavit in opposition to plaintiff's motion for summary disposition. IANAL but I believe this is the way to do it, rather than including it in the account stated denial affidavit. 

Share this post


Link to post
Share on other sites

So I just confirmed with the court, the only thing filed since the hearing 2 weeks ago was Plaintiff's proof of service for their response and objections to my Letter to Confer. The court clerk said they don't issue written orders unless they were requested by a party through a motion, so that's why there is no documented order from the Judge for the production of documents.

Share this post


Link to post
Share on other sites

So I just confirmed with the court, the only thing filed since the hearing 2 weeks ago was Plaintiff's proof of service for their response and objections to my Letter to Confer. The court clerk said they don't issue written orders unless they were requested by a party through a motion, so that's why there is no documented order from the Judge for the production of documents.

 

@justiceforall3

 

Let us know if you get anything more in the mail today. It sounds like this court-filed response is their effort to comply with the judge's "order," so they must have taken what the judge said at the MSD seriously. However, it's hard to understand how they could continue to object over the judge's order that they produce all 3 requests. He was, after all, reading from your requests and their first response with objections. We weren't in the court room, so we don't know exactly what your judge said. You characterized it as an "order" right after the MSD hearing; later on, your characterization wasn't as strong. 

 

I hope someone will weigh in here on whether your JDB is defying a judge's order to produce by continuing to object. 

Share this post


Link to post
Share on other sites

First run at my 3rd amended answer and affidavit...

 

 

THIRD AMENDED ANSWER TO COMPLAINT

 

            On August 11, 2014. at Plaintiff's motion hearing for summary disposition, this Honorable Court ordered Plaintiff to produce documents in response to Defendant's discovery requests by August 25, 2014. After such time, this Court gave leave for Defendant to amend his answer and affidavit. NOW COMES, Defendant Pro Se, Justiceforall3 and states unto this Honorable Court as follows:

JURISDICTIONAL ALLEGATIONS

            1.         Answering paragraph 1, the Defendant denies the allegations contained therein.  Plaintiff has not provided the documentation attached to the Complaint that the alleged agreement was duly assigned in the normal course of business to Plaintiff.

            2.         Answering paragraph 2, the Defendant admits this allegation in its entirety.

            3.         Answering paragraph 3, the Defendant admits this allegation in its entirety.

GENERAL ALLEGATIONS

            4.         Answering paragraph 4, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of referenced “Agreement”.  Defendant denies the alleged referenced “Agreement” is in his possession.

            5.         Answering paragraph 5 the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of referenced “Agreement”.

            6.         Answering paragraph 6, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of referenced “Agreement” and terms.

            7.         Answering paragraph 7, the Defendant denies the allegations contained therein.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced business records attached to the affidavit or complaint. 

            8.         Answering paragraph 8, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of account, let alone any disputes.

            9.         Answering paragraph 9, the Defendant denies the allegations contained therein.   Defendant denies receiving any benefit from Plaintiff causing a loss to Plaintiff.

COUNT I

BREACH OF CONTRACT

            10.       Answering paragraph 10, the Defendant restates his answers to paragraphs 1 through 9 the same as if set forth herein word for word.

            11.       Answering paragraph 11, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of account, let alone any disputes, referenced contract “Agreement” and its alleged terms.

 

COUNT II

ACCOUNT STATED

            12.       Answering paragraph 12, Defendant restates his answers to paragraphs 1 through 11 the same as if set for therein word for word.

            13.       Answering paragraph 13, the Defendant denies the allegations contained therein.  Plaintiff has not provided the documentation attached to the Complaint that the alleged agreement was duly assigned in the normal course of business to Plaintiff.

            14.       Answering paragraph 14, the Defendant denies the allegations contained therein.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced business records attached to the affidavit or complaint. 

 

 

AFFIRMATIVE DEFENSES

Affirmative Defense I

            15.  Failure to state a claimLack of standing. Plaintiff’s and Plaintiff’s Affiant's conclusory assertions are unsupported by required sworn business records referenced in the Complaint and Affidavit, to show the existence of a valid contract for the alleged account with Plaintiff’s assignor Heritage First USA,  its transfer of all rights, title, and interests conveyed by an unbroken chain of assignment of intermediate assignees to Plaintiff, and Plaintiff's entitlement as assignee to seek the relief requested. 

Affirmative Defense II

            16.   Lack of standing. Failure to state a claim. Absent evidentiary support of Plaintiff's standing as assignee of Heritage First USA, Plaintiff is not entitled to adjudicate its causes of action, and has failed to state a claim for which relief can be granted. 

           

            WHEREFORE, the Defendant, Justiceforall3, requests that his Honorable Court dismiss Plaintiff’s Complaint together with costs so wrongfully sustained.

 

            Dated August 25, 2014                                  Respectfully submitted,

 

                                                                                    _______________________________

                                                                                    Justiceforall3

                                                                                    In Pro Per

                                                                                    123 My Street

                                                                                    My City, Michigan 48XXX

 

@justiceforall3

 

This 3rd amended answer is very valuable real estate. The judge recommended you submit it. He'll likely read it side by side with their complaint. IANAL but I would take this opportunity to be more fact-specific where possible--especially at this stage of the proceeding.  Discovery is over and you've seen their brief in support of the MSD and their evidence. Again IANAL, but I don't think your 3rd amended answer should be virtually the same as a 1st effort where much evidence is unknown. I've taken a crack at the Affirmative Defenses (in red above) to show how i might approach this. YMMV Others may have better ideas. 

Share this post


Link to post
Share on other sites

Pursuant to MCR 2.313(A), a party may move for an order compelling discovery. MCR 2.313(B)(2) sets forth various mechanisms by which a trial court may enforce a discovery order and sanction disobedient parties. MCR 2.313(B)(2) applies, however, only "f a party ... fails to obey an order to provide or permit discovery...." Because plaintiff did not file a motion to compel production of the posttermination e-mails, the trial court never entered an order compelling their production. " KBD & Assoc, Inc v Great Lakes Foam Technologies, Inc, 295 Mich App 666, 677; 816 NW2d 464 (2012).

Share this post


Link to post
Share on other sites

So it is ok if I mention documents submitted in Plaintiff's motion in my answer to their complaint?  Any update on the supplemental affidavit?

 

Here is another shot at the answer...

 

 

THIRD AMENDED ANSWER TO COMPLAINT

 

            On August 11, 2014. at Plaintiff's motion hearing for summary disposition, this Honorable Court ordered Plaintiff to produce documents in response to Defendant's discovery requests by August 25, 2014. After such time, this Court gave leave for Defendant to amend his answer and affidavit. NOW COMES, Defendant Pro Se, Justiceforall3 and states unto this Honorable Court as follows:

JURISDICTIONAL ALLEGATIONS

            1.         Answering paragraph 1, the Defendant denies the allegations contained therein.  Plaintiff has not provided the documentation attached to the Complaint that the alleged agreement was duly assigned in the normal course of business to Plaintiff.  Chain of Title exhibit A attached to Plaintiff's Motion for Summary Disposition also does not show assignment from Heritage First USA, nor are these records sworn copies or authenticated by testimony from a custodian or expert witness, and are therefore hearsay. Plaintiff has not provided assignment from Heritage First USA as requested by Defendant in discovery and more recently in Defendant's Letter to Confer.

            2.         Answering paragraph 2, the Defendant admits this allegation in its entirety.

            3.         Answering paragraph 3, the Defendant admits this allegation in its entirety.

GENERAL ALLEGATIONS

            4.         Answering paragraph 4, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of referenced “Agreement”.  Defendant denies the alleged referenced “Agreement” is in his possession. The Plaintiff has not provided the alleged referenced "Agreement" as requested by Defendant in discovery and more recently in Defendant's Letter to Confer.

            5.         Answering paragraph 5 the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of referenced “Agreement”.  Defendant denies the alleged referenced “Agreement” is in his possession. The Plaintiff has not provided the alleged referenced "Agreement" as requested by Defendant in discovery and more recently in Defendant's Letter to Confer.

            6.         Answering paragraph 6, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of referenced “Agreement” and terms.  Defendant denies the alleged referenced “Agreement” is in his possession. The Plaintiff has not provided the alleged referenced "Agreement" as requested by Defendant in discovery and more recently in Defendant's Letter to Confer.

 

            7.         Answering paragraph 7, the Defendant denies the allegations contained therein.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced business records attached to the Complaint or Affidavit.  The Chase Bank billing statements attached as Exhibit B to Plaintiff's Motion for Summary Disposition do not show any purchase transactions and do not indicate a charge-off balance, nor a final payment due of $XXX.  In addition, the statements are unsworn business records that have not been authenticated by testimony from a custodian or expert witness, and are hearsay.

            8.         Answering paragraph 8, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of account, let alone any disputes.  The Defendant denies that repeated demands have been made for payment.  The Plaintiff has not provided the "Agreement" with its terms by which the alleged account can be deemed in default.

            9.         Answering paragraph 9, the Defendant denies the allegations contained therein.   Defendant denies receiving any benefit from Plaintiff causing a loss to Plaintiff.

COUNT I

BREACH OF CONTRACT

            10.       Answering paragraph 10, the Defendant restates his answers to paragraphs 1 through 9 the same as if set forth herein word for word.

            11.       Answering paragraph 11, the Defendant denies the allegations contained therein.  Plaintiff's statement is conclusory and offered without attached admissible evidence of account or referenced contract “Agreement” and its alleged terms.  Defendant denies the alleged referenced “Agreement” is in his possession. The Plaintiff has not provided the alleged referenced "Agreement" as requested by Defendant in discovery and more recently in Defendant's Letter to Confer.

 

COUNT II

ACCOUNT STATED

            12.       Answering paragraph 12, Defendant restates his answers to paragraphs 1 through 11 the same as if set for therein word for word.

            13.       Answering paragraph 13, the Defendant denies the allegations contained therein.  Plaintiff has not provided the documentation attached to the Complaint that the alleged agreement was duly assigned in the normal course of business to Plaintiff.

            14.       Answering paragraph 14, the Defendant denies the allegations contained therein.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced business records attached to the affidavit or complaint. 

 

 

AFFIRMATIVE DEFENSES

Affirmative Defense I

            15.   Lack of standing. Plaintiff’s and Plaintiff’s Affiant's conclusory assertions are unsupported by required sworn business records referenced in the Complaint and Affidavit, to show the existence of a valid contract for the alleged account with Plaintiff’s assignor Heritage First USA,  its transfer of all rights, title, and interests conveyed by an unbroken chain of assignment of intermediate assignees to Plaintiff, and Plaintiff's entitlement as assignee to seek the relief requested. 

Affirmative Defense II

           16.   Failure to state a claim. Absent evidentiary support of Plaintiff's standing as assignee of Heritage First USA, Plaintiff is not entitled to adjudicate its causes of action, and has failed to state a claim for which relief can be granted. 

           

            WHEREFORE, the Defendant, Justiceforall, requests that his Honorable Court dismiss Plaintiff’s Complaint together with costs so wrongfully sustained.

 

            Dated August 29, 2014                                  Respectfully submitted,

 

                                                                                    _______________________________

                                                                                   Justiceforall

                                                                                    In Pro Per

                                                                                    123 My Street

                                                                                    My City, Michigan 48XXX

Share this post


Link to post
Share on other sites

@justiceforall3

I don't think you argue your oppo to MSD in your answer. You answer each allegation with some facts if possible and prudent. The MSD M&C stuff (IANAL) I would put in an affidavit titled Supplement to Defendant Justiceforall3 's Affidavit or how ever you titled your MSD affidavit. 

 

Did you get anything else from the JDB in yesterday's mail? 

Share this post


Link to post
Share on other sites

Yeah I felt weird about putting that info in my answer. I will edit.

 

So if I understand correctly, I will have my 3rd amended answer, with my 2nd amended affidavit denying the Plaintiff's account stated, and then an additional affidavit as a supplement.  It is starting to come together for me.  I will try and post this all soon, as I would like to file by Friday with the long weekend coming up.

 

And to answer your last question, no I didn't get anything from JDB yesterday in the mail.  

Share this post


Link to post
Share on other sites

@justiceforall3

 

"The judge came back and asked Plaintiff about their Chain of Title and how it is they didn't submit proof of my actual account.  The Plaintiff had an excel spreadsheet and was stating it was in the file, but it wasn't, she went to go show it to the Judge, but he declined to see it stating the Defendant hadn't seen it.  The judge was reading my discovery requests and their objections (THANK YOU @BROTHERSKEEPER) and said they must submit to me proof of assignment (the excel spreadsheet she had in her hand).  He then was about to wrap it up and was going to say that once they do, he will have no choice but to rule in their favor unless I object (he recommended a 3rd amended answer to complaint with straight denials)."

 

This needs to be unpacked. The bold underlined text needs more explanation. You can PM me if you don't want to discuss this in the open forum.

1.) Good to know that whatever is in your court file as of 8/11--according to your judge--isn't proof of your actual account. 

 

2.) Who claimed the excel spreadsheet was "proof" of assignment? The judge? 

 

3.) The hearing lawyer didn't know that the excel spreadsheet wasn't in your file or whether you did or did not receive it, even in redacted form to shield other accounts in the portfolio. 

 

4.) Is a redacted spreadsheet now in your court file, submitted with their response to your M&C email? 

 

5.) During your hearing did you object formally (for the record to preserve the issue for appeal) or informally to any of the evidence? The judge gave you a strong hint to do so. 

 

6.) Did you interpret the judge's suggestion to submit a 3rd answer to mean that this would help you to defeat their MSD if you do this and object to their evidence?

 

The above paragraph quote from you is where I believe (IANAL) you will win or lose this on your next steps. I'm dismayed by your judge saying he'd have to rule for them once they give you more unauthenticated, unsworn hearsay documents!  Learning the various available motions and process procedures is where your attention needs to be after you complete this amended answer and affidavits.  @BV80 has given you good info on searching the MCRs on discovery and sanctions. I reread them and you have options. 

 

BTW--I have no idea how much money is at stake here. This will determine how hard they fight. 

 

 

 

 

Share this post


Link to post
Share on other sites

@Brotherskeeper

 

The case law I posted shows that an order compelling production has to filed with the court.  It would appear that occurs after a motion to compel is filed and granted.   If there was no order signed by the judge and filed by the court, it may not be possible to say that the plaintiff is disobeying an order.

Share this post


Link to post
Share on other sites

@Brotherskeeper

 

The case law I posted shows that an order compelling production has to filed with the court.  It would appear that occurs after a motion to compel is filed and granted.   If there was no order signed by the judge and filed by the court, it may not be possible to say that the plaintiff is disobeying an order.

 

@BV80  @justiceforall3

 

Rule 2.302 General Rules Governing Discovery

 

(E) Supplementation of Responses.
(1) Duty to Supplement. A party who has responded to a request for discovery 
with a response that was complete when made is under no duty to supplement 
the response to include information acquired later, except as follows: 
© A duty to supplement responses may be imposed by order of the court
agreement of the parties, or at any time before trial through new requests 
for supplementation of prior responses.
(2) Failure to Supplement. If the court finds, by way of motion or otherwise
that a party has not seasonably supplemented responses as required by this 
subrule the court may enter an order as is just, including an order providing the 
sanctions stated in MCR 2.313( B ), and, in particular, MCR 2.313( B )(2)( b ).
(F) Stipulations Regarding Discovery Procedure. Unless the court orders otherwise, 
(G) Signing of Discovery Requests, Responses, and Objections; Sanctions.
(1) In addition to any other signature required by these rules, every request for 
discovery and every response or objection to such a request made by a party 
represented by an attorney shall be signed by at least one attorney of record. A 
party who is not represented by an attorney must sign the request, response, 
or objection.
(2) If a request, response, or objection is not signed, it shall be stricken unless 
it is signed promptly after the omission is called to the attention of the party 
making the request, response, or objection, and another party need not take 
any action with respect to it until it is signed.
(3) The signature of the attorney or party constitutes a certification that he or 
she has read the request, response, or objection, and that to the best of the 
signer's knowledge, information, and belief formed after a reasonable inquiry it 
is:
 

Share this post


Link to post
Share on other sites

@Brotherskeeper

 

A duty to supplement responses may be imposed by order of the court, 

agreement of the parties, or at any time before trial through new requests 
for supplementation of prior responses.
 
He needs to find out if there needs to be a written order or written agreement between the parties.  If not, I don't see how sanctions can be imposed.

Share this post


Link to post
Share on other sites

 

@Brotherskeeper

 

A duty to supplement responses may be imposed by order of the court, 

agreement of the parties, or at any time before trial through new requests 
for supplementation of prior responses.
 
He needs to find out if there needs to be a written order or written agreement between the parties.  If not, I don't see how sanctions can be imposed.

 

 

@BV80

 
I think the judge has discretion to impose a laundry list of sanctions under MCR 2.313 ( B )(2) ( a-e ), if he chooses, or not. The judge read the discovery requests and JDB's objections from the bench. He then told the plaintiff's attorney (is this an order?) to provide all 3 requests--over their objections--and gave them a deadline to do so. He adjourned the MSD hearing for this reason. They did not file for a protective order. I have no idea if justiceforall3 needs to motion to compel or what he should do. I don't think the judge will be happy with the JDB.
 
Rule 2.313 Failure to Provide or to Permit Discovery; Sanctions
( B ) Failure to Comply With Order.
(2) Sanctions by Court in Which Action Is Pending. If a party or an officer, 
director, or managing agent of a party, or a person designated under MCR 
2.306( B )(5) or 2.307(A)(1) to testify on behalf of a party, fails to obey an order 
to provide or permit discovery, including an order entered under subrule (A) of 
this rule or under MCR 2.311, the court in which the action is pending may 
order such sanctions as are just, including, but not limited to the following:

Share this post


Link to post
Share on other sites

It is alright to put forth the laws or rules of CP he JDB attorney did not follow when filing the complaint i.e. attaching documents or outdated documents…etc. 

 

You can use MCR 2.113(F)(B)(1) or MCL 600.2145….etc. Use these so that you clearly have a chain or arguments made from your first pleading through your last. Yu already know the attorney did not provide to you the documents the judge told them to provide. 

Share this post


Link to post
Share on other sites

So I did get another response from LVNV on Tuesday. It was a supplement to their original response to my discovery requests, not a supplement to their response to my letter to confer. They got it to me over a week late. Here is what it says:

Pursuant to M.C.R. 2.302,2.309, and 2.310, Plaintiff, LVNV Funding LLC, hereby submits the following responses and objections to Defendant's Interrogatories and Requests for Production of Documents.

1. Please provide copies of all statements generated while this alleged account was opened with Plaintiff.

ANSWER: Plaintiff attached to its initial response all statements generated by the original creditor currently in Plaintiff's possession, custody or control. See Exhibit A (the same statements as before)

2. Please provide the original copy of the account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws that the agreement and account are governed plus other important facts.

ANSWER: Plaintiff does not currently have in its possession custody or control a copy of the original account agreement; however, Plaintiff refers Defendant to the account statements which indicate numerous terms of the account, including interest, as well as the balance due and owing.

3. Please provide a copy of the assignment between LVNV Funding LLC and Chase Bank for this alleged account.

ANSWER: Plaintiff refers Defendant to the assignment documentation attached to its original responses. The assignment documentation provides the bills of sales between all assignees on the account as well as verification that the account at issue was included in the assignment to LVNV Funding LLC (EXHIBIT B) ***(They did include the redacted excel spreadsheet with the other documents previously submitted, with the SSN blacked out, however did not give me the Credit Card Purchase Agreement referenced in their Bill of Sale) They included a proof of service that they mailed it out on August 27th.

Because I had already received their objections and responses to my Letter to Confer, I had filed my 3rd amended answer on Friday last week, along with an amended affidavit, as well as the supplemental affidavit (with their responses to my letter to confer). They of course don't abide by any deadlines or court rules. I am thinking of filing a motion to strike their affidavit and see if I can get it scheduled for the same date as the MSJ hearing (sept 23). I have found two other affidavits notarized by the same "Gayle Johnson" from South Carolina, with the same commission expiration date, and the signatures DON'T MATCH at all to the one I have. I was thinking to add them as exhibits in my motion to strike. Any thoughts on this, and if it would be appropriate?

Share this post


Link to post
Share on other sites

The motion to strike is only used at trial when a party to trying to submit into evidence a document. An MSJ hearing is not the same as a trial.

Share this post


Link to post
Share on other sites

Sorry, but I don't have any ability to edit, bold or italicize. "Michigan Litigation Forms and Analysis" has a section on striking affidavits not drawn in conformity with MCR 2.113, 2.115, 2.114, and 2.119.

Rule 2.113 Form of Pleadings and Other Papers

(A) Applicability. The rules on the form, captioning, signing, and verifying of

pleadings apply to all motions, affidavits, and other papers provided for by these

rules. However, an affidavit must be verified by oath or affirmation.

Rule 2.115 Motion to Correct or to Strike Pleadings

( B ) Motion to Strike. On motion by a party or on the court's own initiative, the court

may strike from a pleading redundant, immaterial, impertinent, scandalous, or

indecent matter, or may strike all or part of a pleading not drawn in conformity with

these rules.

Here's an actual brief filed in support of a motion to strike an affidavit in Hon. Kwame Kilpatrick v Hon. Jennifer Granholm

http://www.mi.gov/do...ef_247413_7.pdf

Here's a case with a motion to strike portions of an affidavit submitted in support of summary disposition:

SCO Group v Daimler Chrysler Motion to Strike Affidavit:

http://scofacts.org/DC-2004-06-30-B.pdf

 

SCO Group v Daimler Opposition to Motion to Strike Affidavit

http://scofacts.org/DC-2004-07-16-C.pdf

Share this post


Link to post
Share on other sites

 

So I did get another response from LVNV on Tuesday. It was a supplement to their original response to my discovery requests, not a supplement to their response to my letter to confer. They got it to me over a week late. Here is what it says:Pursuant to M.C.R. 2.302,2.309, and 2.310, Plaintiff, LVNV Funding LLC, hereby submits the following responses and objections to Defendant's Interrogatories and Requests for Production of Documents. 1. Please provide copies of all statements generated while this alleged account was opened with Plaintiff. ANSWER: Plaintiff attached to its initial response all statements generated by the original creditor currently in Plaintiff's possession, custody or control. See Exhibit A (the same statements as before) 2. Please provide the original copy of the account agreement that states interest rate, grace period, finance charge, assignment, and specifically the State Laws that the agreement and account are governed plus other important facts. ANSWER: Plaintiff does not currently have in its possession custody or control a copy of the original account agreement; however, Plaintiff refers Defendant to the account statements which indicate numerous terms of the account, including interest, as well as the balance due and owing. 3. Please provide a copy of the assignment between LVNV Funding LLC and Chase Bank for this alleged account. ANSWER: Plaintiff refers Defendant to the assignment documentation attached to its original responses. The assignment documentation provides the bills of sales between all assignees on the account as well as verification that the account at issue was included in the assignment to LVNV Funding LLC (EXHIBIT B) ***(They did include the redacted excel spreadsheet with the other documents previously submitted, with the SSN blacked out, however did not give me the Credit Card Purchase Agreement referenced in their Bill of Sale) They included a proof of service that they mailed it out on August 27th. Because I had already received their objections and responses to my Letter to Confer, I had filed my 3rd amended answer on Friday last week, along with an amended affidavit, as well as the supplemental affidavit (with their responses to my letter to confer). They of course don't abide by any deadlines or court rules. I am thinking of filing a motion to strike their affidavit and see if I can get it scheduled for the same date as the MSJ hearing (sept 23). I have found two other affidavits notarized by the same "Gayle Johnson" from South Carolina, with the same commission expiration date, and the signatures DON'T MATCH at all to the one I have. I was thinking to add them as exhibits in my motion to strike. Any thoughts on this, and if it would be appropriate?

 

I apologize if this has been answered, but did they file with the court the redacted excel spreadsheet you just received? That redacted excel spreadsheet was not attached as an exhibit to their MSD, correct? Did they file anything new with the court?

IANAL, but if the redacted spreadsheet isn't filed with the court, and it was NOT submitted with the MSD motion, how can they put it into the record during the resumed MSD hearing? They may attempt to file it claiming you had advance notice to challenge the evidence. This is an area of court process I'm not familiar with.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.