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Responding to Discovery Request, Pending MSJ, LVNV, Michigan


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Good point, I gave the OP a link to proper MIch citation earlier

@debtzapper

You are such a valuable resource for CIC. Thank you for all you do! When we were fighting our 2 state court cases back in 2012, I printed out copies of the court rules, rules of evidence and the citation manual. They were very tattered by the time we were done. 

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For all OPs:  As a general matter, when using a brief as a template for your own brief,  always check all citations, particularly those several decades old.   Always use the most current case law you can find.  Even if the citation has not been overturned, there may be a newer case that explains the law better or more fully.  

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@debtzapper

You are such a valuable resource for CIC. Thank you for all you do! When we were fighting our 2 state court cases back in 2012, I printed out copies of the court rules, rules of evidence and the citation manual. They were very tattered by the time we were done. 

 

@Brotherskeeper Thank you for all you do for MIch OP's.  You really providing a LOT of detailed one on one help here.

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@justiceforall3

 

I know you ran out of space, but I wanted others doing research to have this case cite. It is unpublished and not binding, but every major Michigan debt collection firm (not JDB type) has included a blog post about this case to alert their clients to new requirements. (hat tip to BMC100) More to be found at: http://publicdocs.courts.mi.gov:81/opinions/final/coa/20110531_C296660_35_296660.OPN.PDF

 

In Brown Bark II LP v Bay Area Floor Covering & Design Inc, unpublished opinion per curiam of the Court of Appeals, issued May 31, 2011, (Docket No. 296660), plaintiff relied on a half-page document, purported to be an allonge, to prove its assignee status. While the allonge was presented as evidence at trial, it was not attached to the note; nor did Plaintiff introduce the agreement referenced in the allonge as evidence, citing privilege as a reason not to do so. Without an opportunity to review the referenced agreement, and to determine what limitations might exist, the Trier of fact could not reasonably conclude the half page document constituted National City Bank’s intent to transfer all of its rights related to the defaulted loan without the power of revocation. The Court held that plaintiff had failed to establish both the existence of a valid assignment of the defaulted loan at issue and its damages with reasonable certainty, and that the evidence presented at trial was insufficient to establish a valid assignment of the defaulted loan to the plaintiff. 

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@justiceforall3

 

It's the plaintiff's motion, so they go first. The judge controls the proceeding, and may ask you a few questions like, "Is that your address on those cc statements?" . There are posts here where posters describe their hearings. I would advise you study the Michigan Rules of Evidence from that Judge's Benchbook on Evidence I believe I gave you, especially on hearsay.  I'd also look back through for the link to objections and how to object in court on the record.

 

This case is very instructive of the arguments. It's from Vermont, but their evidence rules have the same numbers as Michigan's, both based on federal rules. It doesn't end well for the defendant, because he gave the JDB copies of his own Chase cc statements in discovery. If he hadn't, the court would've ruled for him.

https://www.vermontjudiciary.org/20062010%20TCdecisioncvl/2010-5-12-12.pdf

 

Here's a cheat sheet of the MRE to take to court. 

MRE.docx

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So just curious - when I go to Court and actually have to defend my brief, how much caselaw should I quote? Like should everything I say be backed up by the law and the caselaw to prove it?

 

I am trying to get a feel for how much to memorize.

 

I would not overly memorize or get too bogged down in case law.  You need to know the main points of your case and be prepared to argue it in front of the JDB lawyer and to respond to whatever the judge may say.

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Did the Plaintiff supply you with an affidavit when they sent you any documents from somebody that states they are familiar with the record keeping practices....etc?

 

If not, all you need to do is to attack their evidence on authentication. MRE 902(11) and MRE 803(6). Then attack standing. The judge usually won't allow you much time to talk so make it clear and to the point.

 

The Plaintiff failed to authenticate all their evidence pursuant to Evidence Rules....and without proper authentication, the court as a matter of law cannot put any weighting towards those documents. Further, Plaintiff has not shown standing by providing a complete chain of title to a group of charged off debts from First Heritage to B to C to the alleged current owner. As this court will see, I submitted an affidavit with my opposition denying ever opening an account with First Heritage. The Defendant asks this court to deny the Plaintiff's motion and proceed to trial.

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@justiceforall3

I sent you a PM. I noticed you have the PM notification button turned off. If you want to get an email alert for PMs, you can turn the button to "on." It's on our PM conversation page in the upper left-hand corner in "participants" under your screen name. Of course, you can also block people ou don't want to hear from.

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@bmc100

 

This is what the Plaintiff's affidavit says:

 

Now comes the undersigned affiant, who having first been duly sworn and cautioned according to law, depose and states as follows:

 

1.  I am an Authorized Representative for LVNV Funding LLC (hereafter the "Plaintiff").  I am authorized to make this affidavit on its behalf, and the information below is true and correct to the best of my information and belief based on the Plaintiff's business records.

2.  I have personal knowledge regarding Plaintiff's creation and maintenance of its normal business books and records, including computer records of its accounts receivables.  This information was regularly and contemporaneously maintained during the course of the Plaintiff's business.

3. In the ordinary course of business, Plaintiff regularly acquires revolving credit accounts, installment accounts, service accounts and/or other credit lines.  The records provided to Plaintiff have been represented to include information provided by the original creditor or its successors in interest.  Such information includes the debtor's name, social security number, account balance, the identify of the orginal creditor, and the account number.

4. To the best of my knowledge and belief, the Defendant is not a monor or mentally incompetant person.

5. Based upon the business records maintained on account XXX (hereafter "Account"), which are a compilation of the information provided upon acquisition and information obtained since acquisition, the Account is the result of the extension to Justiceforall3 by Chase Bank USA,N.A. on or about 9/7/2006 (the "Date of Origination"). Said business records further indicate that Account was then owned by Chase Bank USA, N.A., that Chase Bank USA, N.A. later sold and/or assigned Portfolio 15632 to Plaintiff's assignor which included the Defendant's Account on 1/13/2011 (the "Date of Assignment") and on the Date of Assignment, all ownership rights were assigned to, transferred to, and became vested in Plaintiff, including the right to collect the purchased balance owing of $xxx.

 

I affirm under penalty of perjury that the above facts are true and correct.

(Signed Matt Pangle on December 4, 2013)

(Notarized)

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There is still no assignment documentation from First Heritage to Chase and no mention of it anywhere. Two, your affidavit is claiming you never opened the account. Three, you have to ask yourself…Are there any documents created by this JDB that they provided to you?

 

The affidavit makes no reference to having personal knowledge around the records keeping practices of Chase or First Heritage. How can a JDB employee authenticate another companies documents?

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@justiceforall3

 

Here's a NJ Appeals Court ruling that goes into great detail about assignment docs and cc statements, and their admissibility under NJ law/rules. Read carefully to distinguish your facts from those here, so you can prepare to rebut if your JDB or judge raises these arguments. Unfortunately, one consumer did not prevail on getting the MSJ overturned. Philip Stern has appealed to the NJ Supreme Court. 

http://www.philipstern.com/files/a6078-11a6370-11.pdf

 

More briefs and hearing transcripts here:

http://www.philipstern.com/Appeals.html

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@justiceforall3

Your plaintiff asserts it is the assignee of Heritage First USA, rather than Chase Bank USA, NA. Plaintiff's rights come from its assignor, specifically Plaintiff's right to sue (action) you.  MCL 566.132(f) requires that an assignment of ‘things in action’ be ‘in writing and signed with an authorized signature by the party to be charged with the agreement, contract, or promise. http://www.legislature.mi.gov/(S(pg2v4v55wjwi53uiw5v2ty45))/mileg.aspx?page=GetObject&objectname=mcl-566-132  IANAL, but this seems to indicate there must be something written with an authorized signature from Heritage First USA through the various assignees to LVNV.

 

I believe the bolded part from (published authority) Burkhardt v Bailey, quoted below in (unpublished, not binding) Brown Bark II, was left out of your brief. IANAL, but I'd suggest having this Burkhardt at 654 citation, plus footnote 3 below, and the text of MCL 566.132(f) in your MSD hearing prep notes, so you can have the reference handy.

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20110531_C296660_35_296660.OPN.PDF

 
A determination related to an assignment is a question of fact. See Keyes v Scharer, 14 Mich App 68, 74-75; 165 NW2d 498 (1968).
 
 An assignment is defined as a transfer or making over to another of the 
whole of any property, real or personal, in possession or in action, or any estate or 
right therein. To constitute a valid assignment there must be a perfected 
transaction between the parties which is intended to vest in the assignee a present 
right in the thing assigned. [Weston v Dowty, 163 Mich App 238, 242; 414 NW2d 
165 (1987) (quotation marks and citation omitted).] 

 

 
“[A]n assignee stands in the shoes of the assignor and acquires the same rights as the assignor possessed.” Prof Rehab Assoc v State Farm Mut Auto Ins Co, 228 Mich App 167, 177; 577 NW2d 909 (1998). An assignment requires no particular form of words; rather, the assignor must simply “manifest an intent to transfer and must not retain any control or any power of revocation.” Burkhardt v Bailey, 260 Mich App 636, 654-655; 680 NW2d 453 (2004) (quotation marks and citation omitted). Stated differently, even a poorly drafted written instrument can create a valid assignment so long as it clearly reflects the necessary intent on the part of the assignor. Id. at 654. However, “Michigan’s version of the statute of frauds [still] requires that an assignment of ‘things in action’ be ‘in writing and signed with an authorized signature by the party to be charged with the agreement, contract, or promise . . . .’” Id. at 654, quoting MCL 566.132(f).3
 
footnote 3 Burkhardt provided the following definition of “thing in action”: 
A “chose in action” is a “‘right to personal things of which the owner has not the possession, but merely a right of action for their possession.’” City of Holland v Fillmore Twp, 363 Mich. 38, 43; 108 NW2d 840 (1961), quoting Black’s Law Dictionary (4th ed), p 305. A “thing in action” is synonymous with a “chose in action.” See Powers v Fisher, 279 Mich. 442, 448-449; 272 NW 737 (1937). See also Ballentine’s Law Dictionary (3d ed), defining “chose in action” as “the right of a creditor to be paid; a right not reduced to possession but recoverable by bringing and maintaining an action,” and “thing in action” as the “same as chose in action.” [Burkhardt, 260 Mich App at 654 n 9]. 
 
###

Action A case or lawsuit; a legal and formal demand for enforcement of one's rights against another party asserted in a court of justice. The term action includes all the proceedings attendant upon a legal demand, its adjudication, and its denial or its enforcement by a court. Specifically, it is the legal proceedings, while a Cause of Action is the underlying right that gives rise to them.

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So I went to court today.  The Plaintiff had sent a new attorney I have never met before. She tried to settle, I declined.  She didn't even have the whole file, but her whole argument was I didn't deny and that I simply said I didn't have information and belief to say either way. I started by stating that the Plaintiff didn't provide proof of assignment, nor proof of how the balance was computed, and none of their documents were authenticated and were hearsay. I asked the court to deny their motion because they haven't proven they own the debt, nor the amount owed.  The judge then excused himself for like 20 minutes.  Talk about nerve wrecking.

 

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).  

 

The Plaintiff made a mistake in my opinion, because the next words out of her month were "Your Honor, just to be clear, you want Plaintiff to provide only request #3 (the rest of the assignment) to the Defendant?"  He said yes and then I immediately asked for the account agreement and the remaining credit card statements to show use.  The judge ordered the Plaintiff to give me ALL of my 3 requests, adjourned the decision until September 23rd, and said they must give me the required documents in two weeks.  He then said once I receive these documents, to submit my 3rd amended answer denying with an affidavit. (I really don't believe he read my brief, nor my actual complaint, because what he was asking me to do is already in the file).

 

Make a long story short, I consider this a win.  Lets see what the Plaintiff provides now in their 2 week window.

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