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Hello All - Anyway ever have a Bank fail to submit an Affidavit in the Complaint and Motion for Summary Judgement and then just magically produce a new one dated that week and served that day to Defendent in Court? I did.

 

I have been watching this forum for help as I have decided to fight BIG BANK Discover over a credit card debt. I think I have zeroed in on something but need some case law.

 

1) They filed the Complaint in October, 2014 using an account stated theory with 1 statement attached for a 10 year account.

 

2) I filed an answer but not an affidavit. I didn't know that I needed to.  But I did find some case law disputing that, but the REAL gangbuster is they neither did they.

 

3) Then they moved for Sumary Disposition, and I responded with genuine issues of material fact, but in the Motion, they explicitly said twice that they had properly filed and Affidavit to the Complaint and that it was also attached to this Motion. Yet, their exhibit summary did not contain it listed and it wasn't there.

 

4) The Judge offered them two weeks, and the lawyer shot back one. This was on a Friday when on that next Monday both Michigan and Ohio were shut down, including Courts due to a blizzard. The next Friday was the new hearing. I amended my Response with more time and served them on Wednedsay. On Thursday I went to the court to see if they filed anything yet, and they had filed an Affadavit DATED that previous Monday February 2nd, 2015 not October 2014 when they filed the Complaint. It was the standard Robo Affidavit where Discover Bank has its factory in Franklin Ohio by an Abigail Paton of Discover Financial Products (4 entities removed from Discover Financial Services with which the alleged contract was made). I googled and saw Ms. Patton has signed Affidavits as far away as SanDiego.

 

5) I prepared a Motion to strike that night. Plaintiffs waited to serve me until the actual hearing, and I served them back my pre-paid Motion. Their lawyer got out his law book and started fliiping through it. I asked the Judge to Move to Strike, and he said he would Strike but then asked the Plaintiff if they would just re-file again and he said yes, so the judge changed his mind and said he would give me more time. I said I didn't need it but he seemed like he wanted my motion in writing. I pointed out that the affidavit they neglected to submit with the Complaint affected their account stated theory, and they have failed to produce 4 years of statements, an orginal agreement with terms on it, so there is no way to determine the amount. The six years I did get had 2 purchases totoalling $700 yet I paid $15,000 (or 1700% interest) as far as what they could prove. He "gave me" 2 more weeks but their lawyer was too busy so it ended up being six weeks.

 

QUESTION: Can the Bank claim they filed an affidavit with a Complaint dated in October 2014 and then again in a January 2015 Motion to dismiss and then when compelled to produce the Affidavit because I showed up (unlike 90% who don't bother) and produce an Affidavit dated the next business day (Monday - blizzard Day) 2015 and use it like it just fell behind a file cabinet and they found it? That would certainly make it cheaper for Banks to eliminate the paperwork until someone demands it.

 

You can't swear in legal proceedings that you did something - have someone with knowledge review your records (even though sehe failed to attach them as required) before filing the Complaint, and wait unti the second hearing for a Summay Disposition to creat a new Affidavit. I know there is a problem there, but can't find the Michigan law or case law to cite for the next hearing.

 

Please help - you scholare are fabulous! 

 

 

 

 

 

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@GirlFightsBack

 

3) Then they moved for Sumary Disposition, and I responded with genuine issues of material fact, but in the Motion, they explicitly said twice that they had properly filed and Affidavit to the Complaint and that it was also attached to this Motion. Yet, their exhibit summary did not contain it listed and it wasn't there.

 

 

If it was filed, it would have been in the court's files.  So what do they think happened to it?   Is the attorney going to try to claim that the court has a dog that "eats your homework"?

 

 

On Thursday I went to the court to see if they filed anything yet, and they had filed an Affadavit DATED that previous Monday February 2nd, 2015 not October 2014 when they filed the Complaint.

 

 

In MI, isn't an affidavit supposed to show a date that's within 10 days before the date of the filing of the complaint?   If so, then that affidavit is not timely.

 

Anyway, I'm not sure the date on the affidavit indicates post-dating.  That affidavit may very well have been created February 2, 2015, but I don't think it matters here.  The date on the affidavit should show that it was created within 10 days before the complaint was filed in October, 2014.  Even the affidavit had been created in Oct. 2014, it wasn't filed with the complaint. (MCL 600.2145)

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Thanks folks. Let me clarify.

 

The Complaint was filed in October 2014. There was no Affidavit attached. The MSJ was filed in January. Although it states "as in a form letter style", that an affidavit was filed with the Complaint and the MSJ, it was not. They had a list of Exhibits on the MSJ and it wasn't even listed.

 

The Judge saw this, gave us both a week on Friday July 31st. They created a new Affidavit dated Monday February 2nd (when the Courts were closed).

 

1) So it was a "dog ate the original one" on both pleadings, so we just made a new one.

 

2) That the affiant was able to gain personal knowledge of my account within one day, when courts were closed (and most businesses).

 

So I think the question here is can they say that MCL 600.2145 states 10 days before but it silent on filing an affidavit 4 months later than the Complaint (which seems absurd).

 

So (if it is untimely) they lose their account stated prima face case, and have to proceed on a MSJ on an open account. But they failed to poduce the first 4 years of statements and an underlying agreement.

 

But the judge asked if they would just refile? Meaning if he dismisses their case without predjudice, they just do it right this time. They said they would. That sounds like double jeapordy to me?

 

Can I file a motion to dissmiss because of their fatal error?

 

Thanks again

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What company did the affidavit come from?

 

MCL 600.2145 applies when the Plaintiff or Defendant wants to create a Prima Facie case, where the affidavit is enough to warrant judgment if no counter-affidavit is filed. In order for the Plaintiff to support any documents they have to be weighed as evidence, an affidavit is needed to support it. 

 

What does the affidavit state? From that, you can determine what rule of evidence they are trying to use. 

 

Does this affidavit really state that it was filed with the complaint? 

 

Does the complaint state that the agreement is in the possession of the adverse party?

 

It is hard to even give you direction without knowing who the plaintiff is, what the complaint states, what you put in your answer, what the affidavit states, what evidence they supplied to you, what discovery questions you served to them, their responses, what their MSJ states, what rule(s) they are using, what your opposition states.

 

It makes no sense create a motion to strike, those are used at trial. They will state whatever they want to the judge to get the judge to do what they want. Chances are if this thing is dismissed, they will drop this thing if it is a small amount. 

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Thanks and so many good points. 

 

Ok so I uploaded the redacted Affidavit. Here are the problems I saw.

 

1. It was filed four months following the Complaint (October, 2014)

 

2. It was stated in the MSJ that it was in the Complaint and in the MSJ (January 2015) and was not. The MSJ had a list of Exhibits right above the signature swearing the truthfulness and it was NOT included as an Exhibit. (Mich law requires a written instrument to be attached MCR 2.113(F)(1).

 

3. At the first hearing (Friday Jan 31st) the Judge gave us a week to amend filings because they had no affidavit or succession from Discover Financial Services through 4 entities to Plaintiff, Discover Bank. 

 

4, Plaintiff created the attached Affidavit on Feb 2, 2015 (the following Monday when courts were closed in both states due to storms) but failed to serve me until the hearing Friday February 6th.

 

5. The Affidavit appears to be a form. Font type and size for Affiant is different than the form.

 

6. Paragraph 3 The Afffiant claims "is made on my personal knowledge (SUBJECT MISSING of what - art history, snowboarding) and in support of the Plaintiff's suit."

 

7. Paragraph 4 seems to say she knows people who have personal knowledge and computers who has personal knowledge. Again, she did not attach the records she claims to have personally reviewed. Required?

 

8. The class identified "Terms level 20H" means nothing. There is no interest rate, on the application with redacted balance transfers.

 

9. Missing the first 4 years and material terms make the last statement attached useless in calculating damages.

 

10. So account stated is gone, the missing Affidavit should strike the MSJ. He could dismiss without prejudice, but there is case law that suggests that lack of diligence and/or false pleadings (I swore we included an October Affidavit and we didn't) could allow a judge discretion to dismiss with prejudice. 

 

Thanks for your help!

RedactedAffidavit.pdf

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What are exhibits A and B?

 

IS Discover the Plaintiff?

 

The card number is redacted, so there is case law that shows us that in an affidavit, no information can be redacted. I had a couple cases, but they were on my old  computer that crashed.

 

In your opposition and counter affidavit needs to address a few topics. 

 

1. They did not provide the terms and conditions to conform with MCR 2.113(F). 

2. The affidavit does not comply with MRE 902(11). 

3. That the exhibits stated as evidence were not provided to you in advance, which provided an unfair opportunity to the Plaintiff and did not allow you the ability to challenge them. 

 

What rules under MCR 2.116 are they using for their MSJ? 

 

That affidavit might not be viable at this point per the rules.

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Hi BMC - an thank you!

 

Yes Discover is Plaintiff, represented by a local law firm (that is a debt collection mill - thus sloppy work like not including an Affidavit). Exhibits A and B are the last two statements.

 

They are using MCR 2.116©(10) which tests whether there is factual support for a claim. "The court must consider the pleadings, affidavits, depositions, admissions, or other documentary evidence available to it. I filed a response denying but not an Affidavit.

 

Failure to attach an Afffidavit to the original complaint means they don't have a prima facia case of account stated. They claim I have no genuine issues of material fact (I do), and asked for MSJ. yet if forced to prove an open account, they haven't provided agreement (other than general policy) and first four years of statements. How can damage can damages be calculated when I have no idea what the alleged balance transfers were, terms, and changes, etc.?

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Account Stated goes beyond proving a Prima Facie case against you. Now, they have to prove account stated in the traditional sense. Here is an example of a MSJ opposition I put together a couple years ago. There is a case law that goes into detail on open account, account stated…etc.

 

PLAINTIFF FAILS TO CREATE AN ACCOUNT STATED CLAIM

The Plaintiff “LVNV” states that this is a collection case in which they are relying upon an affidavit from an employee of LVNV to create a Prima Facie case against the Defendant. They also claim that the affidavit was served to the Defendant, along with the complaint. Therefore since there was not a counter-affidavit attached to the Defendant’s complaint denying the amount owed, the Plaintiff is claiming it is entitled to judgment due to the fact that the Defendant did not deny the amount owed to LVNV.

Plaintiff is relying upon an affidavit from a LVNV employee that does not properly comply with MCL 600.2145. (EXHBIT 1 - LVNV AFFIDAVIT) The Plaintiff almost stated verbatim MCL 600.2145, but failed to include the most important sentence in that law. “Any affidavit in this section mentioned shall be deemed sufficient if the same made within 10 days next proceeding the issuing of the writ or filing of the complaint or answer“, Smith v. Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28 (1999). As stated in the Statement of Facts, the original affidavit attached to the complaint was dated more than 10 days prior to the filing of the complaint or the issuance of the writ of summons.

 

In Capital One Bank v. Ringelberg, Mich App Ct (Unpublished 2005), We review the trial court’s decision to grant summary disposition under MCR 2.116©(10) de novo. Spiek v. Michigan Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The affidavit presented in this case at bar was made more than ten days before the complaint was filed, and therefore was improperly considered by the trial court as prima facie evidence of indebtedness. The plain language of MCL 600.2145 prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit.

 

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

The affidavit submitted in the complaint clearly states, “The right to collect the purchase balance of owing of $745.68, but the account statements submitted clearly state different amounts than the amount that they are claiming.

 

 

Plaintiff does not show a common law “Account Stated”. Even if the documents submitted by the Plaintiff were deemed admissible, Plaintiff would still not be entitled summary disposition based upon the theory of account stated. To probe an account stated, a party must show that the other party agreed he owes the amount claimed. “An Account Stated means a balance struck between parties on a settlement”. Watkins v. Ford (syllabus) 69 Mich 357, quoted in Kaunitz v. Wheeler, 344 Mich 181, 185; 73 NW2d 263 (1955). Kaunitz is similar to the present case. In that case, the Plaintiff sent a statement of account to the Defendant indicating a balance due of $29,427.10 and Defendant replied with a letter in which it stated “we hereby acknowledge our indebtness to you...” Nevertheless, the court held that the trial court erred in granting Plaintiff summary judgment. Defendant’s acknowledgement of an indebtness was not sufficient to show that Defendant admitted it owed the amount claimed. “The conversion of an open account into an account stated is an operation by which the parties assent to a certain sum as the correct balance due from one to the other, and whether this operation has been performed or not, in any instance, must depend upon the facts. That it has taken place, may appear by evidence or an express understanding, or of words and acts, and the necessary and proper inferences from them. When accomplished, it does not necessarily all inquiry into the rectitude of the account.” White v. Campbell, 25, Mich 463, 468.

“An Account Stated means a balance struck between the parties on a settlement.” Watkins v. Ford (syllabus) 69 Mich 357.
To the same effect, see Kusterer Brewing Co. v. Friar, 99 Mich 190; Thomas v. Carpenter, 175 Mich 428 (45 LRA NS 543, Ann Cas 1915A, 690).

Merely sending bills or attaching a few bills to the complaint or motion for summary judgment does not create an account stated. There must be some acknowledgement by the party billed that he admits owing the debt and that he further admits the amount claimed is accurate. (EXHIBIT 2 - DEFENDANT’S AFFIDAVIT) Unlike Kaunitz, the present case, Plaintiff does not show that Defendant ever acknowledged he owes the Plaintiff anything and there has been no acknowledgment by the Defendant that he owes the amount claimed. Further looking at recent case law, In Unifund CCR Partners v. Riley, Mich; Court of Appeals (2010), In this case, the submitted evidence shows that the defendant originally had an open account based on the credit card issued by Citibank. Plaintiff also provided evidence that payments were made on the account, thereby establishing that a debt was owed. However, this is insufficient to transform an open account to an account stated without evidence that the Defendant was the one who made payments. There is no evidence that Defendant made the asserted payments. Furthermore, the fact that Defendant did not question the accuracy of the charges is insufficient to transform an open account to account stated absent proof that the Defendant was aware of the account and the charges being made thereon.

 

The Defendant did deny the account, the amount owed, denied receiving billing statements and denied making payment on the account in the Defendant’s answer. Since the Plaintiff is relying upon a stale affidavit with no additional documentation or authenticated evidence showing the amount claimed is due an owing, the Court must as a matter of law deny the Plaintiff’s account stated claim for summary judgment. 

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Thanks - it is a tough hurdle in Michigan to defend an account stated.

 

But the Supreme Court seems to assume or it was fact that Plaintiff attached and "AFFIDAVIT OF ACCOUNT STATED". IF I understand you, a missing affidavit would just remove their prima facia case but they could proceed to prove account stated by proving mutual assent, and any payment made, regardless of the lack of substantiation as to the balance due, proves that and the plaintiff's damages without proving the amount?

 

That seems to eliminate the need for affidavits altogether. What am I missing here?

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