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Responding to Discovery Request, Pending MSJ, LVNV, Michigan


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I would like to add more in Statement 1 about the fact the affidavit doesn't comply, affiant doesn't speak on personal knowledge, etc... But how much do I put in there without arguing my case?

 

Would his be sufficient?

 

Originally on January 2, 2014 (and again on March 26th, 2014), the Plaintiff “LVNV Funding, LLC” filed a complaint in the 44th District Court alleging two claims, a breach of contract, and account stated, along with an affidavit from an authorized representative of LVNV, Matt Pangle, which was dated December 4, 2013 though the summons was issued on January 2, 2014 (and again on March 26th). The affidavit is not dated within 10 days of the summons.  In addition, this affidavit from an authorized representative of LVNV, is an attempt to authenticate records created by another company.  The affiant has not proved that he can be a competent witness to support Plaintiff’s records, as more further explain in Defendant’s brief.   Attached as (Defendant’s Exhibit 1) is a true and correct copy of Plaintiff’s affidavit.

@justiceforall3

I did some research last night on drafting a Statement of Fact. I confess I hadn't really understood its true purpose or its importance. Up until now, with the complaint and the MSD, the plaintiff has been in charge of the facts. You denied most of those facts in your second answer and affidavit. Your affirmative defenses did not include any new facts; here, you allege that the plaintiff's facts are unsupported by admissible evidence. (Because that evidence is absent, essential elements of plaintiff's claim are unsupported. No competent evidence of plaintiff receiving title from its alleged assignor--and the right to sue on this claim comes from the assignor on through the chain of assignment--is the threshold issue to determine plaintiff's standing to bring suit.)

 

Your (2nd) MSD affidavit will include new facts gleaned from discovery. You have sworn copies of documents attached to the 2nd affidavit that support the new facts and will put those new facts in admissible form, because your personal knowledge of those facts and your affidavit lay the proper foundation for those facts. 

 

A Statement of Facts is not a recitation of the timeline, but of the facts (not conclusions or opinions) a judge should consider to decide if their is a genuine dispute of facts that need a trial to resolve. Your Statement of Facts is your opportunity to present important and material facts from your side to the judge. You must support those facts with a reference to a source (i.e. personal knowledge affidavit) or document (one of yours or theirs) that is substantively admissible in order for them to have weight. The judge is the sole fact-finder.  The other really important task your Statement of Facts must accomplish is to demonstrate where plaintiff's material facts are unsupported with competent evidence, or where evidence is missing. You must show where material facts  are disputed by you. Again, you must reference a source or document, or that one is missing. Material facts in dispute or a material issue like standing must be in your Statement. The more succinct you can be, the better. Also, your credibility is on display here, doubly so as a pro se. Don't damage it. The JDB and its attorney will have damaged credibility if you do your job.

 

So, you don't say "plaintiff has proved no evidence..."  Plaintiff alleges in its Complaint at paragraph #X that Defendant did or did not do X. Plaintiff has offered no evidence of any kind ... Or, Plaintiff's Complaint at paragraph. #X refers to a written agreement that Plaintiff has failed to attach to its Complaint.

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I would like to add more in Statement 1 about the fact the affidavit doesn't comply, affiant doesn't speak on personal knowledge, etc... But how much do I put in there without arguing my case?

 

Would his be sufficient?

 

Originally on January 2, 2014 (and again on March 26th, 2014), the Plaintiff “LVNV Funding, LLC” filed a complaint in the 44th District Court alleging two claims, a breach of contract, and account stated, along with an affidavit from an authorized representative of LVNV, Matt Pangle, which was dated December 4, 2013 though the summons was issued on January 2, 2014 (and again on March 26th). The affidavit is not dated within 10 days of the summons.  In addition, this affidavit from an authorized representative of LVNV, is an attempt to authenticate records created by another company.  The affiant has not proved that he can be a competent witness to support Plaintiff’s records, as more further explain in Defendant’s brief.   Attached as (Defendant’s Exhibit 1) is a true and correct copy of Plaintiff’s affidavit.

@justiceforall3

You are not arguing your case in the Statement of Facts. You present facts for the judge. You argue the import of those facts in your brief. MCL 600,2145 requires an affidavit on the account and a account statement to be annexed, dated within 10 days of the writ (summons) and complaint or answer to be prima facie evidence. You have to talk about both the affidavit and the account statement here. Here's my rough shot--dates and Plaintiff's exhibit # marked need to be filled in. Plaintiff's exhibits are not marked as Defendant's:

 

On January 2, 2014, and again on March 26th, 2014, the Plaintiff “LVNV Funding, LLC” filed a Complaint in the 44th District Court alleging two claims, a breach of contract, and an account stated, Attached to the Complaint is Plaintiff’s “Affidavit of Indebtedness and Ownership of Account,” as Exhibit X, prepared by an "Authorized Representative for LVNV Funding LLC." The affiant's employer, the person or entity who confers this authorization, and the responsibilities of an Authorized Representative are never identified.  Affiant Matt Pangle, on his information and belief, claims Plaintiff’s business records confer the right to collect a purchased balance owing of $XXXX. This affidavit was purportedly signed and notarized on December 4, 2013, and is not dated within 10 days of the Summons and Complaint. Attached as Exhibit X to the  December 4, 2013 affidavit is a computer generated summary Account Statement prepared on behalf of Plaintiff dated XXXX, 2013, also not dated within 10 days of the Complaint. The preparer of the Account Statement is not identified. No other documents referred to in the Pangle Affidavit are attached. 

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@justiceforall3

 

The judge will have a copy of everything the plaintiff has submitted to the court. You don't need to submit it again. If it hasn't been marked as Plaintiff's exhibit X, just refer to it as the Pangle affidavit. If there's more than one affidavit from the plaintiff, and they haven't been marked as an exhibit, refer to it the <Affiant's Last Name> Affidavit, or affiant <last name> to avoid confusion. 

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Ok I am working on the statement of facts, and am at a loss as to if I am doing this correct or not.  Is it arguing my case if I state I denied something and reference my affidavit? For example if I write that the Plaintiff in its complaint said I failed to make payments, but then I state I denied it in my affidavit, is that appropriate?  Like is my content ok and I just need to reword it, or am trying to put too much in the facts section?  

Here is how I have reworded the first 4:

1.  On January 2, 2014 and again on March 26th, 2014, the Plaintiff “LVNV Funding, LLC” filed a complaint in the 44th District Court alleging two claims, a breach of contract, and account stated.  Attached to the Complaint is “Plaintiff’s Affidavit of Indebtedness and Ownership of Account” as Exhibit A, prepared by an “Authorized Representative for LVNV Funding, LLC”.  The affiant’s employer, the person or entity who confers this authorization, and the responsibilities of an Authorized Representative are never identified.  Affiant Matt Pangle, on his information and belief, claims Plaintiff’s business records confer the right to collect a purchased balance owing of $XXX.  This affidavit was purportedly signed and notarized on December 4, 2013, and is not dated within 10 days of the Summons and Complaint.  Attached as Exhibit B to the complaint is a computer generated summary “Account Statement” prepared on behalf of Plaintiff dated December 17, 2013, also not dated within 10 days of the Complaint.  The preparer of the Account Statement is not identified.  No other documents referred to the Pangle Affidavit are attached.

 

2.  On July 21, 2014, after obtaining proper written consent from Plaintiff and filing Stipulation And Order to Amend Answer pursuant to MCR 2.118(a)(2)(4), Defendant filed a Second Amended Answer to Plaintiff’s Complaint denying the Plaintiff’s allegations and stating two defenses of 1) Lack of Standing, and 2) Failure to State a Claim.  Attached to the amended answer is Defendant’s First Amended Affidavit Denying Plaintiff’s Account Stated Claim, dated July 21, 2014, which herein is incorporated by reference (MCL 600.2145).

 

3. Plaintiff pleads in paragraph 1 of its complaint that Plaintiff is the assignee of Defendant’s Heritage First USA account issued by Chase Bank USA, N.A.  Plaintiff failed to attach exhibits supporting this claim in its complaint pursuant to MCR 2.113(F)(1),(2).

 

4. Plaintiff pleads in paragraph 4 of its complaint that on” September 7, 2006, Defendant opened an account with Chase Bank USA, N.A.  An agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiffs knowledge, is in Defendant's possession.”  The Plaintiff has failed to attach exhibits supporting the claim that the account was opened on September 7, 2006 pursuant to 2.113(F)(1)(2).  Defendant denies having the Agreement in his possession in paragraph 4 of Defendant’s First Amended Affidavit Denying Plaintiff’s Account Stated Claim.

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Ok I am working on the statement of facts, and am at a loss as to if I am doing this correct or not.  Is it arguing my case if I state I denied something and reference my affidavit? IANAL, I think you are stating facts and referencing the source, not arguing.  For example if I write that the Plaintiff in its complaint said I failed to make payments,  Where is their evidence of this? If it's the incomplete bunch of Chase cc statements, those statements are authenticated by no one, not even Pangle's affidavit mentions them, no Chase affidavit either, right? Those are important facts. You requested the complete set of cc statements in discovery, but they objected and didn't provide anything more. Those are facts. JDB also mentions demands for payment. Where are those demands? They claim you didn't dispute the bills. Where is the proof of that from Heritage or Chase? The fact tht the allegation has no evidence to support it is a fact.   but then I state I denied it in my affidavit, is that appropriate?  Your denial is a fact, and this makes it a disputed fact, right? Like is my content ok and I just need to reword it, or am trying to put too much in the facts section?  IANAL, but I believe you're on the right track. Get it down first and then edit. Hang in there!

Here is how I have reworded the first 4:

1.  On January 2, 2014 and again on March 26th, 2014, the Plaintiff “LVNV Funding, LLC” filed a complaint in the 44th District Court alleging two claims, a breach of contract, and account stated.  Attached to the Complaint is “Plaintiff’s Affidavit of Indebtedness and Ownership of Account” as Exhibit A, prepared by an “Authorized Representative for LVNV Funding, LLC”.  The affiant’s employer, the person or entity who confers this authorization, and the responsibilities of an Authorized Representative are never identified.  Affiant Matt Pangle, on his information and belief, claims Plaintiff’s business records confer the right to collect a purchased balance owing of $XXX.  This affidavit was purportedly signed and notarized on December 4, 2013, and is not dated within 10 days of the Summons and Complaint.  Attached as Exhibit B to the complaint is a computer generated summary “Account Statement” prepared on behalf of Plaintiff dated December 17, 2013, also not dated within 10 days of the Complaint.  The preparer of the Account Statement is not identified.  No other documents referred to the Pangle Affidavit  or in the Compliant are attached.

 

2.  On July 21, 2014, after obtaining proper written consent from Plaintiff and filing Stipulation And Order to Amend Answer pursuant to MCR 2.118(a) (A)(2)(4), Defendant filed a Second Amended Answer to Plaintiff’s Complaint, denying the Plaintiff’s allegations and stating two Affirmative defenses of 1) Lack of Standing, and 2) Failure to State a Claim.  Attached to the amended answer is Defendant’s First Amended Affidavit Denying Plaintiff’s Account Stated Claim, dated July 21, 2014., which herein is incorporated by reference (MCL 600.2145).

 

3. Plaintiff claims it is the assignee of Defendant’s an alleged Heritage First USA account issued by Chase Bank USA, N.A.(Complaint, paragraph 1.)  Plaintiff failed to attach the chain of assignment agreements exhibits supporting this these claims to its Complaint pursuant to MCR 2.113(F)(1),(2)This one needs work. 

 

4. Plaintiff pleads in paragraph 4 of its complaint that on” September 7, 2006, Defendant opened an account with Chase Bank USA, N.A.  An agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiffs knowledge, is in Defendant's possession.”  The Plaintiff has failed to attach exhibits to supporting these claims. that the account was opened on September 7, 2006 pursuant to 2.113(F)(1)(2).  Defendant denies having the Agreement in his possession in paragraph 4 of Defendant’s First Amended Affidavit Denying Plaintiff’s Account Stated Claim. Didn't you also deny you opened the account? And the other allegations of paragraph 4?

 

There are accepted abbreviations for Complaint, Affidavit, etc. that you can use to shorten the length:

http://www.personal.psu.edu/dhk3/research/Bluebook/T-08-17.htm

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@justiceforall3

 

Pauley v Hall, 124 Mich App 255, 263; 335 NW2d 197 (1983).

"This Court has held that a grant of summary judgment is premature if made before discovery on the disputed issue is complete. Goldman v Loubella Extendables, 91 Mich App 212, 217-218; 283 NW2d 695 (1979), lv den 407 Mich 901 (1979); Johnston v American Oil Co, 51 Mich App 646, 650-651; 215 NW2d 719 (1974). However, there must be a disputed issue before the court. If the party opposing a motion for summary judgment cannot present competent evidence of a disputed fact because his or her discovery is incomplete, the party must at least assert that such a dispute does indeed exist and support the allegation by some independent evidence, even if hearsay." 

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Here is my updated Statement of Facts.  I have been jumping around from this to cleaning up my brief, so my brain is a mess.  Let me know if you have any suggestions, or if I am missing something.

 

STATEMENT OF FACTS

1.  On January 2, 2014 and again on March 26th, 2014, the Plaintiff “LVNV Funding, LLC” filed a complaint in the 44th District Court alleging two claims, a breach of contract, and account stated.  Attached to the Complaint is “Plaintiff’s Affidavit of Indebtedness and Ownership of Account” as Exhibit A, prepared by an “Authorized Representative for LVNV Funding, LLC”.  The affiant’s employer, the person or entity who confers this authorization, and the responsibilities of an Authorized Representative are never identified.  Affiant Matt Pangle, on his information and belief, claims Plaintiff’s business records confer the right to collect a purchased balance owing of $XXXX.  This affidavit was purportedly signed and notarized on December 4, 2013, and is not dated within 10 days of the Summons and Complaint.  Attached as Exhibit B to the complaint is a computer generated summary “Account Statement” prepared on behalf of Plaintiff dated December 17, 2013, also not dated within 10 days of the Complaint.  The preparer of the Account Statement is not identified.  No other documents referred to in the Pangle Affidavit or in the complaint are attached.

2.  On July 21, 2014, after obtaining proper written consent from Plaintiff and filing Stipulation And Order to Amend Answer pursuant to MCR 2.118(A)(2)(4), Defendant filed a Second Amended Answer to Plaintiff’s Complaint, denying Plaintiff’s allegations and stating two Affirmative Defenses of 1) Lack of Standing, and 2) Failure to State a Claim.  Attached to the amended answer is Defendant’s First Amended Affidavit Denying Plaintiff’s Account Stated Claim, dated July 21, 2014.

3. Plaintiff claims it is the assignee of an alleged Heritage First USA account issued by Chase Bank USA, N.A (Comp. paragraph 1).  Plaintiff failed to attach the chain of assignment agreements supporting these claims in its Complaint.

4. Plaintiff pleads in paragraph 4 of its complaint that on” September 7, 2006, Defendant opened an account with Chase Bank USA, N.A.  An agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiffs knowledge, is in Defendant's possession.”  The Plaintiff has failed to attach exhibits to support these claims.  Defendant denies applying for credit or having the Agreement in his possession. (Def.’s Aff. paragraphs 3 & 4)

5.  On or around June 30, 2014, the Plaintiff filed its Motion for Summary Disposition, and attached Chain of Title as Exhibit A to verify Plaintiff’s ownership of the alleged account.  Chain of Title shows a Bill of Sale record dated January 12, 2011, with Chase Bank USA. N.A. as the seller and Sherman Originator III, LLC as the purchaser of debts further described in Exhibit 1.  The Plaintiff has failed to attach this referenced Exhibit 1.  The Bill of Sale record states that it is an exhibit to the Credit Card Account Purchase Agreement.  Plaintiff has failed to attach the Credit Card Account Purchase Agreement to which the Bill of Sale is an exhibit to.  The Chain of Title also shows a Declaration of Account Transfer record, with Sherman Originator III, LLC as the assignor and Sherman Originator LLC and LVNV Funding LLC as the assignees.  The preparer of both of these records is not identified.  The Plaintiff’s assignor Heritage First USA is not represented in either of these records.  The Defendant and alleged account number are not represented in either of these records.

6.  Attached in Plaintiff’s Motion for Summary Disposition as Exhibit B are copies of account statements dated between November 7, 2008 and May 6, 2010 that Plaintiff claims were sent to Defendant.  Defendant has denied receiving these statements in his affidavit.  Plaintiff claims these statements indicate Defendant’s knowledge of the account, its terms, and charge-off balance as indicated in the final statement.  These statements do not indicate any purchase transactions and do not show use or how the balances were computed.  The amount due on the final statement is $XXXX and does not indicate a charge-off balance or that the account was charged off.  These records were not created by Plaintiff, nor does Plaintiff’s affidavit attest that these records are sworn copies.  The Plaintiff has failed to submit an affidavit or sworn testimony from Heritage First USA or Chase Bank USA, N.A. attesting to the accuracy of these statements.

7.  As a result, there is a genuine issue of material fact that shows that the Plaintiff is not entitled to relief for $XXXX plus interest, costs and attorneys fees under MCR 2.116©(9) and MCR 2.116©(10).

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@justiceforall3

Please read carefully:

 
Rule 2.119 Motion Practice
(A) Form of Motions.
 
(2) A motion or response to a motion that presents an issue of law must be 
accompanied by a brief citing the authority on which it is based. Except as 
permitted by the court, the combined length of any motion and brief, or of a 
response and brief, may not exceed 20 pages double spaced, exclusive of attachments and exhibits.
Quotations and footnotes may be single-spaced. At least one-inch margins must be used, and printing shall not be smaller
than 12-point type. A copy of a motion or response (including brief) filed under this rule 
must be provided by counsel to the office of the judge hearing the motion. The 
judge's copy must be clearly marked judge's copy on the cover sheet; that 
notation may be handwritten.
 
Your motion response (See post # 95) if you decide to include one, and your oppo brief can't be more than 20 pages, double-spaced. Attachments and exhibits are not included in the count. 
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Thanks for all your help.  I didn't realize the 20 page limit obviously haha. Anyway here is the complete list of facts.

 

 

STATEMENT OF FACTS

1.  On January 2, 2014 and again on March 26th, 2014, the Plaintiff “LVNV Funding, LLC” filed a complaint in the 44th District Court alleging two claims, a breach of contract, and account stated.  Attached to the Complaint is “Plaintiff’s Affidavit of Indebtedness and Ownership of Account” as Exhibit A, prepared by an “Authorized Representative for LVNV Funding, LLC”.  The affiant’s employer, the person or entity who confers this authorization, and the responsibilities of an Authorized Representative are never identified.  Affiant Matt Pangle, on his information and belief, claims Plaintiff’s business records confer the right to collect a purchased balance owing of $XXXX.  This affidavit was purportedly signed and notarized on December 4, 2013, and is not dated within 10 days of the Summons and Complaint.  Attached as Exhibit B to the complaint is a computer generated summary “Account Statement” prepared on behalf of Plaintiff dated December 17, 2013, also not dated within 10 days of the Complaint.  The preparer of the Account Statement is not identified.  No other documents referred to in the Pangle Affidavit or in the complaint are attached.

2.  On July 21, 2014, after obtaining proper written consent from Plaintiff and filing Stipulation And Order to Amend Answer pursuant to MCR 2.118(A)(2)(4), Defendant filed a Second Amended Answer to Plaintiff’s Complaint, denying Plaintiff’s allegations and stating two Affirmative Defenses of 1) Lack of Standing, and 2) Failure to State a Claim.  Attached to the amended answer is Defendant’s First Amended Affidavit Denying Plaintiff’s Account Stated Claim, dated July 21, 2014.

3. Plaintiff claims it is the assignee of an alleged Heritage First USA account issued by Chase Bank USA, N.A (Comp. paragraph 1).  Plaintiff failed to attach the chain of assignment agreements supporting these claims in its Complaint.

4. Plaintiff pleads in paragraph 4 of its complaint that on” September 7, 2006, Defendant opened an account with Chase Bank USA, N.A.  An agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiffs knowledge, is in Defendant's possession.”  The Plaintiff has failed to attach exhibits to support these claims.  Defendant denies applying for credit or having the Agreement in his possession. (Def.’s Aff. paragraphs 3 & 4)

5.  On or around June 30, 2014, the Plaintiff filed its Motion for Summary Disposition, and attached Chain of Title as Exhibit A to verify Plaintiff’s ownership of the alleged account.  Chain of Title shows a Bill of Sale record dated January 12, 2011, with Chase Bank USA. N.A. as the seller and Sherman Originator III, LLC as the purchaser of debts further described in Exhibit 1.  The Plaintiff has failed to attach this referenced Exhibit 1.  The Bill of Sale record states that it is an exhibit to the Credit Card Account Purchase Agreement.  Plaintiff has failed to attach the Credit Card Account Purchase Agreement to which the Bill of Sale is an exhibit to.  The Chain of Title also shows a Declaration of Account Transfer record, with Sherman Originator III, LLC as the assignor and Sherman Originator LLC and LVNV Funding LLC as the assignees.  The preparer of both of these records is not identified.  The Plaintiff’s assignor Heritage First USA is not represented in either of these records.  The Defendant and alleged account number are not represented in either of these records. 

6.  Attached in Plaintiff’s Motion for Summary Disposition as Exhibit B are copies of account statements dated between November 7, 2008 and May 6, 2010 that Plaintiff claims were sent to Defendant.  Defendant has denied receiving these statements in his affidavit.  Plaintiff claims these statements indicate Defendant’s knowledge of the account, its terms, and charge-off balance as indicated in the final statement.  These statements do not indicate any purchase transactions and do not show use or how the balances were computed.  The amount due on the final statement is $XXX and does not indicate a charge-off balance or that the account was charged off.  These records were not created by Plaintiff, nor does Plaintiff’s affidavit attest that these records are sworn copies.  The Plaintiff has failed to submit an affidavit or sworn testimony from Heritage First USA or Chase Bank USA, N.A. attesting to the accuracy of these statements.

7.  On June 23, 2014, Defendant served Plaintiff with a Request For Production (Def.’s Exhibit 1), requesting Plaintiff provide all statements generated while the alleged account was open to demonstrate use and to show how the alleged balance was computed.  The Defendant also requested the “Account Agreement” with the terms and conditions purportedly governing the alleged Heritage First USA account. Lastly, the Defendant requested proof of assignment on the alleged account.

8.  On or around July 22, 2014, Defendant received Plaintiff's objections and response to the Request for Production of Documents (Def.’s Exhibit 2). Plaintiff provided the account statements and Chain of Title documents already attached as exhibits to Plaintiff’s Motion for Summary Disposition.  Defendant denies receiving all statements generated on the account as well as the Account Agreement in paragraph’s 5 and 6 of Defendant’s First Affidavit Supporting Opposition to Summary Disposition. 

9.  On July 18, 2014, pursuant to instructions by Plaintiff, Defendant emailed an authorization to establish email communication (Def.’s Exhibit 3).  On July, 28, 2014, Defendant emailed Plaintiff a Letter to Confer (Def.’s Exhibits 4, 5).  Defendant denies receiving a response from Plaintiff for the outstanding discovery records in paragraph 9 of Defendant’s First Affidavit Supporting Opposition to Summary Disposition.

10.  As a result, there is a genuine issue of material fact that shows that the Plaintiff is not entitled to relief for $XXXX plus interest, costs and attorneys fees under MCR 2.116©(9) and MCR 2.116©(10).

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Thanks for all your help.  I didn't realize the 20 page limit obviously haha. Anyway here is the complete list of facts.

 

 

STATEMENT OF FACTS

1.  On January 2, 2014 and again on March 26th, 2014, the Plaintiff “LVNV Funding, LLC” filed a complaint in the 44th District Court alleging two claims, a breach of contract, and account stated.  Attached to the Complaint is “Plaintiff’s Affidavit of Indebtedness and Ownership of Account” as Exhibit A, prepared by an “Authorized Representative for LVNV Funding, LLC”.  The affiant’s employer, the person or entity who confers this authorization, and the responsibilities of an Authorized Representative are never identified. 

2.   Affiant Matt Pangle, on his information and belief, claims Plaintiff’s business records confer the right to collect a purchased balance owing of $XXXX.  This affidavit was purportedly signed and notarized on December 4, 2013, and is not dated within 10 days of the Summons and Complaint.  Attached as Exhibit B to the complaint is a computer generated summary “Account Statement” prepared on behalf of Plaintiff dated December 17, 2013, also not dated within 10 days of the Complaint.  The preparer of the Account Statement is not identified.  No other documents referred to in the Pangle Affidavit or in the complaint are attached.

3..  On July 21, 2014, after obtaining proper written consent from Plaintiff and filing Stipulation And Order to Amend Answer pursuant to MCR 2.118(A)(2)(4), Defendant filed a Second Amended Answer to Plaintiff’s Complaint, denying Plaintiff’s allegations and stating two Affirmative Defenses of 1) Lack of Standing, and 2) Failure to State a Claim.  Attached to the amended answer is Defendant’s First Amended Affidavit Denying Plaintiff’s Account Stated Claim, dated July 21, 2014.

4.. Plaintiff claimed it is the assignee of an alleged Heritage First USA account issued by Chase Bank USA, N.A (Comp. paragraph 1).  Plaintiff failed to attach the chain of assignment agreements supporting these claims in its Complaint.

5.. Plaintiff pleads in paragraph 4 of its complaint that on” September 7, 2006, Defendant opened an account with Chase Bank USA, N.A.  An agreement ("Agreement") was delivered to Defendant(s) and to the best of Plaintiffs knowledge, is in Defendant's possession.”  The Plaintiff has failed to attach exhibits to support these claims.  Defendant denies applying for credit or having the Agreement in his possession. (Def.’s Aff. paragraphs 3 & 4)

6.  On or around June 30, 2014, the Plaintiff filed its Motion for Summary Disposition, and attached Chain of Title as Exhibit A to verify Plaintiff’s ownership of the alleged account.  Chain of Title shows a Bill of Sale record dated January 12, 2011, with Chase Bank USA. N.A. as the seller and Sherman Originator III, LLC as the purchaser of debts further described in Exhibit 1.  The Plaintiff has failed to attach this referenced Exhibit 1.  The Bill of Sale record states that it is an exhibit to the Credit Card Account Purchase Agreement.  Plaintiff has failed to attach the Credit Card Account Purchase Agreement to which the Bill of Sale is an exhibit to.  The Chain of Title also shows a Declaration of Account Transfer record, with Sherman Originator III, LLC as the assignor and Sherman Originator LLC and LVNV Funding LLC as the assignees.  The preparer of both of these records is not identified.  The Plaintiff’s assignor Heritage First USA is not represented in either of these records.  The Defendant and alleged account number are not represented in either of these records. 

7.  Attached in Plaintiff’s Motion for Summary Disposition as Exhibit B are copies of account statements dated between November 7, 2008 and May 6, 2010 that Plaintiff claims were sent to Defendant.  Defendant has denied receiving these statements in his affidavit.  Plaintiff claims these statements indicate Defendant’s knowledge of the account, its terms, and charge-off balance as indicated in the final statement.  These statements do not indicate any purchase transactions and do not show use or how the balances were computed.  The amount due on the final statement is $XXX and does not indicate a charge-off balance or that the account was charged off.  These records were not created by Plaintiff, nor does Plaintiff’s affidavit attest that these records are sworn copies.  The Plaintiff has failed to submit an affidavit or sworn testimony from Heritage First USA or Chase Bank USA, N.A. attesting to the accuracy of these statements.

8.  On June 23, 2014, Defendant served Plaintiff with a Request For Production (Def.’s Exhibit 1), requesting Plaintiff provide all statements generated while the alleged account was open to demonstrate use and to show how the alleged balance was computed.  The Defendant also requested the “Account Agreement” with the terms and conditions purportedly governing the alleged Heritage First USA account. Lastly, the Defendant requested proof of assignment on the alleged account.

9.  On or around July 22, 2014, Defendant received Plaintiff's objections and response to the Request for Production of Documents (Def.’s Exhibit 2). Plaintiff provided the alleged account statements and alleged Chain of Title documents as attached as exhibits to Plaintiff’s Motion for Summary Disposition.  Defendant denies receiving all statements generated on the account as well as the Account Agreement in paragraph’s 5 and 6 of Defendant’s First Affidavit Supporting Opposition to Summary Disposition.

10.  On July 18, 2014, pursuant to instructions by Plaintiff, Defendant emailed an authorization to establish email communication (Def.’s Exhibit 3).  On July, 28, 2014, Defendant emailed Plaintiff a Letter to Confer (Def.’s Exhibits 4, 5).  Defendant denies receiving a response from Plaintiff for the outstanding discovery records in paragraph 9 of Defendant’s First Affidavit Supporting Opposition to Summary Disposition.  As a result, there is a genuine issue of material fact that shows that the Plaintiff is not entitled to relief for $XXXX plus interest, costs and attorneys fees under MCR 2.116©(9) and MCR 2.116©(10).

 

ok areas I crossed out, you are arguing your case.  Save that for the brief.

 

You will now in your brief take each statement and turn it into a paragraph or 2 or 3 as to why it is not to be considered by the court.  This is where you argue your case.  Keep it in order of the statement of facts so the judge can refer it.

 

So the brief you had before with all that case law, you need to figure out where to put it, following the outline of statement of facts.  you can start a new paragraph to argue each statement, or you can titile each one in bold, then argue it.  Like for instance statement of facts number 4.. Title it assignment of account.  Then go into how they didn't notify you of an assignemnt, (if tht is required in your state) how they didn't reference heritage bank, etc. the stuff you put up above.

 

For number 2. you can title it Plaintiff's affidavidt by m. pringle (or whatever his name it)  Then go into why the affidavidt should not be entered into evidence.  Etc.

 

I'm not good at putting words on paper either, but when they are there, I understand them, if that makes any sense lol.  I know how it should look, but I can't write it for you.

 

Statement of facts are only for facts that HAVE occured, not any opinions, conclusions, unless they were already ruled upon. Just the things that have occurred in the case this far, and not if they should be allowed into evidence.  That is what the opposition brief is for.

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"Fact n. an actual thing or happening, which must be proved at trial by presentation of evidence and which is evaluated by the finder of fact (a jury in a jury trial, or by the judge if he/she sits without a jury)."  http://legal-diction...ionary.com/fact

 

If I am interpreting this correct, something that actually happened (i.e. Plaintiff failing to submit evidence) is a fact.  Whether or not it is true is for the Judge/Jury to decide, but I state my facts (or things in dispute), then use caselaw and court rules to back it all up in my brief.  I understand my facts appear very lengthy, but in my opinion they are all facts.  I will have to go back and proofread to make sure but just a thought.

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Good points. I may be reading into it, they look like conclusions to me.

@Brotherskeeper yes I know he needs to include the stale affidavit holds no weight as prima facie evidence, that could be listed in the facts I was thinking it in the argument with the case law to follow. ( or civil code)

All in all I don't think the court is going to grade you on spelling and grammar, as long as it makes sense, you will be good to go.

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@justiceforall3 @shellieh98

 

As I understand it, the most important aspect of the Statement of Facts (SOF) is to show there are material facts in dispute, with a reference/source for each fact that makes it substantively admissible as such at the MSD stage. (Admissible at trial is another matter.) Disputed material facts may create a material issue that can't be resolved without trial. The point is to defeat the MSD. 

There is a possibility that the judge in this case may read the SOF and skim the rest. Equally possible is the scenario that the judge's clerk reads it. This happened in both our cases.

I agree that arguing whether an untimely affidavit/account statement is prima facie or not is best left to the brief. I do believe it is an important fact to note the dates of the 2 documents and that the date is more than 10 days. IANAL YMMV

 

Important; affecting the merits of a case; causing a particular course of action; significant; substantial. A description of the quality of evidence that possesses such substantial Probative value as to establish the truth or falsity of a point in issue in a lawsuit.
 
material fact is an occurrence, event, or information that is sufficiently significant to influence an individual into acting in a certain way, such as entering into a contract. In formal court procedures, a material fact is anything needed to prove one party's case, or tending to establish a point that is crucial to a person's position.
 
material issue is a question that is in dispute between two parties involved in litigation, and that must be answered in order for the conflict to be resolved."
 
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Your motion response (See post # 95) if you decide to include one, and your oppo brief can't be more than 20 pages, double-spaced. Attachments and exhibits are not included in the count. 
 
I did incorporate a motion response, and with it plus my brief, plus my affidavit I am at 17 pages double spaced at 12 point font. I have it all in the same word document at the moment.  I do still need to argue my discovery as well as tweak some pieces in my other sections, but I feel I should be able to stay within the 20 pages.  I can always attach my (2nd) affidavit as exhibit 1 and that will give me an extra page.
 
The proof of service doesnt count as part of the motion correct?
 
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@justiceforall3

 

"This affidavit was purportedly signed and notarized on December 4, 2013, and is not dated within 10 days of the Summons and Complaint.  Attached as Exhibit B is a computer generated summary “Account Statement” prepared on behalf of LVNV dated December 17, 2013, also not within 10 days of the Complaint date."

 

Are these dates correct? If so, you have the account statement dated AFTER the affidavit it is attached to! Pangle could not have reviewed it before signing his affidavit!

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Attachments of evidence, proof of service, affidavits do not count in the total pages.@Brotherskeeper is from your state so I would listen to him. Mich. Has different rules than most other states, what works in mine or Cali won't work in yours, but you got some good council. ;-)

 

Scary thought to listen to me! I gave @justiceforall3  the Michigan court Rule for page length. Proof of service isn't mentioned. It isn't really a part of the motion response, but a required doc under another court rule. IANAL.

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