Jump to content

Lost on technicality after being sued on stated account with proof of full payment


bream133
 Share

Recommended Posts

I have been searching for hours, I'm coming up empty and I'm running out of time...

quick backstory: we built a new house starting in April of last year. We entered into a contract with the excavator/cement contractor for a set amount after he submitted a series of bids over a few months that increased from approx $23k to the final contract amt of $31k. A few weeks after the contract was signed, he submitted a change order increasing the contract to just under $35k. We agreed to it and signed it. He completed 95% of the work by July and we paid the balance of the contract in full. After completing most of the work in the contract (except for two line items for labor or materials we later found out he did not perform or provide), he sent us a bill for an additional $6,800 claiming additional work and material overages. Aside from the first Change Order, he never discussed any additional work or materials and everything listed on the bill was for work/materials covered under the contract. We tried to contact him to discuss the bill and credits we were due and both the office manager and the site manager told us he would contact us but he never did. He did, however, quickly file a lien and then file suit. He did not file suit on the lien in Circuit Court though - he filed on breach of contract and account stated in district court. After asking around, I knew that the Judge we were assigned to was not going to dismiss just because he didn't diligently follow rules concerning Notice of Furnishing and such so we didn't bother going that route. Honestly, it seemed pointless given how slam dunk things seemed... we have a contact for a firm, stated amount. The contract states it can only be changed in writing with both parties signing. Only one such change happened. We have a copy of our certified check, which was cashed. Done deal, right? Here is the kicker - we were already planning on suing this idiot once the house was finished. He made a HUGE error when digging the basement and when the township caught the error, he outright lied to avoid fixing it. We believed his lie and moved forward making changes to the job site to accommodate the error that cost us almost $20k. Also, because of his fraudulent lien on our title, we could not refinance out of our construction loan and have paid about $24k in interest and penalties to date. So we filed our answer, our aff. defenses and counter sued for $20k+ (we hadn't incurred the penalties and interest at that point). We kept GREAT records - photos, receipts, site plans, phone records, emails, etc - and had several witnesses who were eager to make this guy answer for his lies. Also, there is some pretty good case law, with nearly identical details, backing our argument. Basically, our plan was to let him put on his case, move for a directed verdict and then proceed with our counter claim. We had a standing motion prior to trial asking to amend our witness and exhibit list (nothing that wasn't already submitted to the court previously or that wasn't also on the other side's lists.)

Before we can even speak, the judge basically asks P's attorney to show how he would be prejudiced by allowing the amendment and he proceeds to ignore her question and motions the court for a directed verdict. This judge is known for being a bit wishy washy and not at all assertive or in control of her own courtroom so I wasn't super shocked that she just let him ramble on. Basically, his argument was that he was entitled to a directed verdict because we didn't file a counter-affidavit so we defacto agree to owing the amount stated in his client's affidavit - and since he now established prima fascia case, an automatic judgement should be entered in his favor, making our motion irrelevant. Prior to this hearing on OUR motion, we had not been noticed or served with his motion or brief, although I don't think that's required with a motion for DV. I only bring that up because the judge allowed us a 10-15 minute recess to read his brief and formulate an argument. The fun part of that is because we are not attorneys, we were not allowed to bring in a phone or computer into the courthouse - no phone, no computer... no internet. The time allowed was not enough to go out to the car, research and return in time. When she came back in, we argued that the purpose of the affidavit is for a plaintiff to swear "under oath" that the debt is owed because nothing else is signed by him - his attorney wrote and signed all the court pleadings. An affidavit basically eliminates the chance of the P ever claiming later that he had "no knowledge" if an amount was found to be misstated or fraud was being committed. However, because we are in pro per, every pleading entered with the court, denying the existence of this debt and specifically challenging the fraudulent claims made in P's affidavit, were written and signed by us - and entering them with the court is our assertion, under penalty of law, that they are true and correct. In effect, our entire answer, aff def and counter are one long affidavit. She denied that argument and entered a judgment for the P - she even gave him a couple thousand for attorney fees. When my husband went up to the bench to sign whatever it was the judge wanted him to sign, she said "you need to get a lawyer". DUH - we tried and tried to find a lawyer but either they "didn't litigate" or our claim was too small for them to bother or their schedule was already too full. Believe me - we tried and we continued to try through most of the last 8 months. 

SO, as luck would have it (I say with sarcasm), our plumber mentioned that his attorney might be available - he tells us this on the Saturday before our Monday trial. UGGGHHHH I've called and talked to him a couple of times. He also has a full calendar BUT he said that if I can do the research and compose the pleadings, he will review and sign them and represent us in court if needed. But I have to be able to do the legwork. Sidenote: My degree is in paralegal studies and I spent most of my working days in one of those scummy debt collecting law firms - in commercial collections. I was a single mom and it was the only job I could find with the hours I needed - don't judge:) 

He said that we should consider filing a motion for reconsideration and/or a motion for judgment notwithstanding the verdict. He said he thinks we have cause for appeal but he has cautioned that it WILL be expensive and time consuming so that it's important to get these two motions right and hopefully save ourselves the hassle of appeal. I should say that the judge has often seemed very eager to help us, has begged us to get an attorney many times and has all but said we would have won with one. I wish her desire to help gave her a backbone big enough to control her courtroom but that's neither here nor there at this point. I honestly think there is a chance she would grant a motion to reconsider under two conditions - the first and definitely most important is that we have an attorney. The second is that we give her what she needs in our motion brief - if we can show that we would likely win an appeal, I think she'll reconsider. I know its rare but we have to try.

I said a brief background - I lied. I'm sorry:( Here's what I need to know now

 

1) The issue of us not filing a counter affidavit is a fact known to the Plaintiff Attorney as of May 4th when we entered an Amended Complaint. Is there an argument to be made that he did not raise the issue timely by waiting 3.5 months and that the judge shouldn't have even heard his motion based on this argument? Shouldn't he have just filed a MSD back in May on a claim like this? If so, I really, really, really need any Michigan court rules or case law that back it up. Again, I've googled it to death and I have no access to LN or other search engines.

2) Is the fact that we didn't put our denial of the account stated and attached affidavit onto a single page with a heading saying "counter affidavit" really so big of a deal breaker that a judgment so grossly inequitable can be ordered? Is there any case law pertaining to a pro per defendant's answer being considered the counter affidavit? Or any other argument that can be made along those lines here?

3) Can we argue that the time had passed for dispositive motions to be brought and that the court erred in hearing P's motion? This I'm less sure will work because it was a directed verdict motion which is always brought at trial so obviously the time hadn't passed. However, I couldn't bring a motion for DV based on improper service at the trial. There is usually a certain amount of time someone has to motion based on a failure by the other party. At a minimum, could we ask the court to reconsider the award of attorney fees based on P's failure to file a MSD right after the answer was filed? He only incurred additional expenses because of his incompetence or sleaziness (a part of me is pretty certain he waited until trial day to point out the lack of affidavit because if he had filed a MSD, we would have just filed one with the court immediately upon receiving his motion and the court, no doubt, would have accepted it, late as it was. The way he did it allowed him to bill dozens of more hours to his client AND it meant we were blindsided.)

 

if you made it this far, I appreciate it and am grateful for any help you can offer!

Link to comment
Share on other sites

@bream133

I don't know anything about MI law, but I do remember something posted by a MI member, @bmc100.

MI statute 600.2145 says that an affidavit signed within 10 days preceding the filing of the complaint establishes prima facie evidence of an account stated.  If the affidavit is older than that, then it doesn't establish prima facie evidence.   Have you checked the date the plaintiff's affidavit was signed?

  • Like 1
Link to comment
Share on other sites

Holy crap my heart breaks for you.   Note, this is what I think what happen under Louisiana law and I have no idea what a Michigan appeals court would do.

Was your answer sworn?   In front a notary?   Would qualify as an affidavit even if the word affidavit is no where on the document?

I think a court of appeals would reverse and send this back down for a new trial.   I am not sure what a JNOV or Motion to Reconsider would do because those are usually reserved for jury trials here.   They may be required for an appeal under MI law so I would follow the attorney you talked to and his advise.   

In Louisiana you would want to file a "suspensive appeal" because that type of appeal stops a judgment creditor from executing on the judgment.   It requires the posting of a bond.   We also have what we call a devolutive appeal but that appeal allows the judgment creditor to execute on a judgment while the appeal is pending.    MI may have a similar setup and it's probably called something different because Louisiana has different names for everything.

I would find it unbelievable a court would say you did not file a counter affidavit solely because your sworn answer and pleadings did not have the words "counter-affidavit" written on it.   Louisiana law says you read the document and it does not matter what you call it, you look at the substance of the document and it fits the criteria for x, even though you call it y, it is x and possibly y as well.

I hope your state law is the same.

Unfortunately appeals are expensive.   Just the cost of compiling the record on a one day bench trial was $3,750.00 in one of my last appeals.   That is not even counting the costs of the appeal bond and my fees.

  • Like 1
Link to comment
Share on other sites

@bream133

I'm gobsmacked by your story! @BV80 gave a good suggestion to look at the date of plaintiff's affidavit to see if it is more than 10 days prior to the complaint's filing date. (I am not a lawyer) Here is an unpublished court of appeals ruling, but it has a persuasive argument outlined:

Velardo & Associates v Oram, No. 279801 (Mich. Ct. App. Oct. 7, 2008). 

https://scholar.google.com/scholar_case?q=velardo+assoc+v+oram&hl=en&as_sdt=4,23&case=17615806624660466040&scilh=0

 

Because Oram failed to submit an affidavit denying the statement of account, Velardo's affidavit became prima facie evidence of the existence of an account stated and the balance of that account. MCL 600.2145. And, for that reason, the burden of going forward with the evidence shifted to Oram. American Casualty Co, supra at 7; see also Lipa v Asset Acceptance, LLC, ___ F Supp 2d ___ (ED Mich, 2008) (noting that an uncontested affidavit filed under MCL 600.2145 merely shifts the burden of going forward with proof to the defendant). Hence, on the basis of the prima facie evidence alone, Velardo would be entitled to summary disposition or, at trial, a directed verdict, unless Oram presented evidence sufficient to rebut Velardo's prima facie evidence. American Casualty Co, supra at 7. However, because Oram could present evidence to rebut Velardo's prima facie case, the trial court erred when it gave Velardo's prima facie evidence conclusive weight and granted summary disposition in favor of Velardo under MCR 2.116(C)(9). See Slater v Ann Arbor Bd of Ed, 250 Mich App 419, 425-426; 648 Nw2d 205 (2002) (noting that summary disposition under MCR 2.116(C)(9) is appropriate only "when the defendant's pleadings are so clearly untenable that as a matter of law no factual development could possibly deny the plaintiff's right to recovery."). Likewise, Velardo was not entitled to summary disposition under MCR 2.116(C)(10).

  • Like 1
Link to comment
Share on other sites

19 hours ago, bream133 said:

Aside from the first Change Order, he never discussed any additional work or materials and everything listed on the bill was for work/materials covered under the contract.

In his "evidence", did he present a Change Order for the additional $6800?

Link to comment
Share on other sites

Here's the MCR for a motion for reconsideration:

Rule 2.119 Motion Practice

(F) Motions for Rehearing or Reconsideration.

(1) Unless another rule provides a different procedure for reconsideration of a decision (see, e.g., MCR 2.604[A], 2.612), a motion for rehearing or reconsideration of the decision on a motion must be served and filed not later than 21 days after entry of an order deciding the motion.

(2) No response to the motion may be filed, and there is no oral argument, unless the court otherwise directs.

(3) Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.

Link to comment
Share on other sites

21 hours ago, BV80 said:

@bream133

I don't know anything about MI law, but I do remember something posted by a MI member, @bmc100.

MI statute 600.2145 says that an affidavit signed within 10 days preceding the filing of the complaint establishes prima facie evidence of an account stated.  If the affidavit is older than that, then it doesn't establish prima facie evidence.   Have you checked the date the plaintiff's affidavit was signed?

I did - thank you! It was notarized on the date it was filed:(

Link to comment
Share on other sites

20 hours ago, neweuquol said:

Holy crap my heart breaks for you.   Note, this is what I think what happen under Louisiana law and I have no idea what a Michigan appeals court would do.

Was your answer sworn?   In front a notary?   Would qualify as an affidavit even if the word affidavit is no where on the document?

I think a court of appeals would reverse and send this back down for a new trial.   I am not sure what a JNOV or Motion to Reconsider would do because those are usually reserved for jury trials here.   They may be required for an appeal under MI law so I would follow the attorney you talked to and his advise.   

In Louisiana you would want to file a "suspensive appeal" because that type of appeal stops a judgment creditor from executing on the judgment.   It requires the posting of a bond.   We also have what we call a devolutive appeal but that appeal allows the judgment creditor to execute on a judgment while the appeal is pending.    MI may have a similar setup and it's probably called something different because Louisiana has different names for everything.

I would find it unbelievable a court would say you did not file a counter affidavit solely because your sworn answer and pleadings did not have the words "counter-affidavit" written on it.   Louisiana law says you read the document and it does not matter what you call it, you look at the substance of the document and it fits the criteria for x, even though you call it y, it is x and possibly y as well.

I hope your state law is the same.

Unfortunately appeals are expensive.   Just the cost of compiling the record on a one day bench trial was $3,750.00 in one of my last appeals.   That is not even counting the costs of the appeal bond and my fees.

An answer in MI does not have to be notarized and it never occurred to me that we should. I really love the law but I can't help but get annoyed at how it's been bastardized like this. Most of these procedures and laws were initially put in place to protect innocent people and now they have been twisted to screw innocent people:(

I also suspect that there's a good chance it might be reversed on appeal but my husband and I have decided that unless we have something concrete, we just can't justify the money - it's too risky and during the whole process we would still have the lien on our house preventing us from refinancing. It costs us about $3500 every month in additional interest and penalties to stay in our private loan because we are beyond the maturity date. 

The whole thing sucks - it's literally comes down to not writing "counter affidavit" at the top. Every criteria required in a counter affidavit was included in our answer and aff. defenses. The fact that it wasn't notarized isn't insurmountable - I found a case where a decision to throw out a pro per affidavit that wasn't notarized was reversed. It wasn't published but still, a case could be made - it's all coming down to the tile:(

Link to comment
Share on other sites

I searched old appeals to give you an idea of a worst case scenario:

Cost of compiling the record (1 day bench trial):   $13,435.80 (pre paid before the record is even sent to the appeals court)

Time from payment of that amount to decision:    17 months, 23 days

So if it is going to cost you $3500/month, my advice if you were in my office, "Man I know this is tough to hear but sometimes life just sucks, you have to pay something you should not have to pay, and learn for the next time."

One of my heart breaking stories from when I first start practicing law was a young couple who purchased a home from someone who was putting himself out there as a home builder.   In Louisiana, the new home warranty act has very specific SOL provisions and in a lot of cases it is one year.   This "home builder" sold them a home that was defective in every way imaginable but he built it in a way where no one would discover it for a while.   $300,000 house.   Fell apart 2 1/2 to 3 years later.    Case dismissed as SOL.

 

Link to comment
Share on other sites

10 hours ago, Brotherskeeper said:

@bream133

I'm gobsmacked by your story! @BV80 gave a good suggestion to look at the date of plaintiff's affidavit to see if it is more than 10 days prior to the complaint's filing date. (I am not a lawyer) Here is an unpublished court of appeals ruling, but it has a persuasive argument outlined:

Velardo & Associates v Oram, No. 279801 (Mich. Ct. App. Oct. 7, 2008). 

https://scholar.google.com/scholar_case?q=velardo+assoc+v+oram&hl=en&as_sdt=4,23&case=17615806624660466040&scilh=0

 

Because Oram failed to submit an affidavit denying the statement of account, Velardo's affidavit became prima facie evidence of the existence of an account stated and the balance of that account. MCL 600.2145. And, for that reason, the burden of going forward with the evidence shifted to Oram. American Casualty Co, supra at 7; see also Lipa v Asset Acceptance, LLC, ___ F Supp 2d ___ (ED Mich, 2008) (noting that an uncontested affidavit filed under MCL 600.2145 merely shifts the burden of going forward with proof to the defendant). Hence, on the basis of the prima facie evidence alone, Velardo would be entitled to summary disposition or, at trial, a directed verdict, unless Oram presented evidence sufficient to rebut Velardo's prima facie evidence. American Casualty Co, supra at 7. However, because Oram could present evidence to rebut Velardo's prima facie case, the trial court erred when it gave Velardo's prima facie evidence conclusive weight and granted summary disposition in favor of Velardo under MCR 2.116(C)(9). See Slater v Ann Arbor Bd of Ed, 250 Mich App 419, 425-426; 648 Nw2d 205 (2002) (noting that summary disposition under MCR 2.116(C)(9) is appropriate only "when the defendant's pleadings are so clearly untenable that as a matter of law no factual development could possibly deny the plaintiff's right to recovery."). Likewise, Velardo was not entitled to summary disposition under MCR 2.116(C)(10).

The major difference here is that Oram filed a counter affidavit in response to the msd so when they got to the hearing, there was one on file (albeit late). The judge did allow us to present "proof of credits owed, etc" and we did but his attorney objected to most of it as hearsay or irrelevant - like he objected to a copy of our payment being entered because we aren't authorities with the bank who are qualified to testify to the validity of the check? And the picture we took of our garage foundation walls being 6'6" instead of 8'10" were objected to because they could have been any garage foundation walls that we measured. 

Again, she really had no backbone and the opposing attorney ran roughshod over her. I've never seen anyone so blatantly interrupt a judge or just start talking and continue to talk until the judge shuts up and listens to them. I felt like I was in the twilight zone:(

I really do think that this case is the reason he didn't file a msd months ago but instead waited to motion for a directed verdict. If he filed a msd, this case basically allows us to file a counter affidavit in response and he knew it:(

Link to comment
Share on other sites

21 hours ago, CCRP626 said:

@bream133 have you looked into filings complaints with the state licensing authorities who handle contractors? If they're with the Better Business Bureau also file there.

We have already started this process! Also, I left negative reviews for him on FB and Angie's list and a few other more local review pages. Then I got a good chuckle out of his attorney sending me a letter of intent to sue me for slander and libel if I didn't take the reviews down? He also ended our court session by demanding that the court tell me to stop writing "lies" about his client on the Internet. They are reviews in a review section - they are by definition an opinion based on my own perspective of my dealings with the company. I just told him good luck and do what he thinks he needs to do but that I  in no way done submitting reviews of my experience with his clients business.

Link to comment
Share on other sites

9 hours ago, kraftykrab said:

I like reading unpublished cases like this, because they often contain published case law cites in them.  Slater v. Ann Arbor Bd. of Ed is such a case.

Thanks! I agree - it's my favorite fast resource... someone has already done half the legwork for you, lol. I'll read this one too and hopefully find something that helps me:)

Link to comment
Share on other sites

7 hours ago, BV80 said:

In his "evidence", did he present a Change Order for the additional $6800?

No, he didn't need to present a single piece of evidence that he was owed the money he was suing for because he submitted a notarized affidavit saying he IS owed it and only because we didn't submit the counter affidavit saying we don't, his word becomes the only piece of evidence he needs. Pretty stupid huh?

Link to comment
Share on other sites

4 hours ago, Brotherskeeper said:

Here's the MCR for a motion for reconsideration:

Rule 2.119 Motion Practice

(F) Motions for Rehearing or Reconsideration.

(1) Unless another rule provides a different procedure for reconsideration of a decision (see, e.g., MCR 2.604[A], 2.612), a motion for rehearing or reconsideration of the decision on a motion must be served and filed not later than 21 days after entry of an order deciding the motion.

(2) No response to the motion may be filed, and there is no oral argument, unless the court otherwise directs.

(3) Generally, and without restricting the discretion of the court, a motion for rehearing or reconsideration which merely presents the same issues ruled on by the court, either expressly or by reasonable implication, will not be granted. The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.

Thanks - that's exactly why I'm hoping to find a case or law that supports our oral argument at the hearing that the complaint, aff defenses and counter suit, in their entirety and having all the required wording of a counter affidavit and having been signed by us, should be considered a counter affidavit. If she erred in not accepting the ans, aff def and counter suit as a defacto counter affidavit, we have the basis for a motion to reconsider.

Link to comment
Share on other sites

21 minutes ago, bream133 said:

No, he didn't need to present a single piece of evidence that he was owed the money he was suing for because he submitted a notarized affidavit saying he IS owed it and only because we didn't submit the counter affidavit saying we don't, his word becomes the only piece of evidence he needs. Pretty stupid huh?

So in MI, I could pick a name out of the phone book, file suit, attach an affidavit, offer no documentation, and if that person doesn't attach a counteraffidavit to his answer, the court would grant summary disposition in my favor?

Link to comment
Share on other sites

1 hour ago, BV80 said:

So in MI, I could pick a name out of the phone book, file suit, attach an affidavit, offer no documentation, and if that person doesn't attach a counteraffidavit to his answer, the court would grant summary disposition in my favor?

@BV80 No. (See quote below)  It sounds like OP's evidence to rebut was allowed to be presented, but was objected to as hearsay, without proper foundation, and the objections were sustained. 

1 hour ago, bream133 said:

The judge did allow us to present "proof of credits owed, etc" and we did but his attorney objected to most of it as hearsay or irrelevant - like he objected to a copy of our payment being entered because we aren't authorities with the bank who are qualified to testify to the validity of the check? And the picture we took of our garage foundation walls being 6'6" instead of 8'10" were objected to because they could have been any garage foundation walls that we measured. 

 

"On appeal, Velardo argues that permitting a defendant an opportunity to rebut the prima facie evidence even after the defendant failed to submit the affidavit required by MCL 600.2145 would render the statute "a useless act that does nothing to advance the litigation of an account stated," and would add "nothing to summary disposition proceedings that does not already exist by virtue of the court rules and the case law." For this reason, Velardo urges this Court to reject an interpretation of MCL 600.2145 that would permit a defendant to rebut the prima facie evidence during summary disposition or at trial. Initially, we note that there is no language within MCL 600.2145 that would suggest that the Legislature intended the presumption to be conclusive. Rather, the Legislature's use of the legal term of art "prima facie evidence" indicates an intent to create a rebuttable presumption. See American Casualty, supra at 8. Hence, our application of this statute is consistent with the Legislature's intent as expressed by the words actually used in the statute. MCL 8.3a; Mayberry v Gen Orthopedics, PC, 474 Mich 1, 7; 704 Nw2d 69 (2005). Nevertheless, we also do not agree that interpreting prima facie evidence in this way renders the statute "useless."

MCL 600.2145 creates a valuable and, in many cases, dispositive presumption. Absent the presumption, a party might have to engage in extensive discovery in order to accumulate the evidence necessary to support a motion for summary disposition, survive a motion for summary disposition, or proceed to trial. Hence, the presumption can serve to expedite summary proceedings and preparation for trial. Further, a plaintiff that has the benefit of the presumption has established factual support sufficient to survive a motion for a summary disposition or directed verdict by the defendant. Indeed, as already noted, the existence of the prima facie evidence shifts the burden of going forward with the evidence to the defendant and forces the defendant to carefully prepare proofs to rebut the plaintiff's case at every stage of the litigation. The plaintiff could even elect to rely solely on the prima facie evidence at trial and a jury could find for the plaintiff on that basis alone. See American Casualty Co, supra at 7. Consequently, there are definite and substantial penalties to a defendant who ignores the requirements of MCL 600.2145.

The trial court erred when it treated Velardo's prima facie evidence as conclusive proof of its claim for an account stated. Further, because Oram presented evidence that, if believed, would rebut Velardo's prima facie evidence, the trial court erred when it granted summary disposition in favor of Velardo. . ."

Link to comment
Share on other sites

@Brotherskeeper I wonder what the validity of the check argument means? This is the check I wrote. I entered the amount in my checkbook prior to sending it. Here is the cashed check copy obtained from the bank with Plaintiff's signature on it. Do we need three samples of the contractor's handwriting? Here is my bank statement showing the account balance is this much lighter? You don't have an affidavit, put me on the stand.

 

 

Link to comment
Share on other sites

6 minutes ago, CCRP626 said:

@Brotherskeeper I wonder what the validity of the check argument means? This is the check I wrote. I entered the amount in my checkbook prior to sending it. Here is the cashed check copy obtained from the bank with Plaintiff's signature on it. Do we need three samples of the contractor's handwriting? Here is my bank statement showing the account balance is this much lighter? You don't have an affidavit, put me on the stand.

 

 

The problem is you have proven everything with competent non-heresay evidence except that the money cleared the bank.   Most attorneys let that slide but if you are called on it, the notation of the check that it cleared is heresay without an officer of the bank to testify to that fact.   Look up the rules on "heresay within heresay."

The bank statement?  Again, that's the bank's out of court statement and you would need a custodian of records to verify any uncertified copy of a bank statement.

  • Like 3
Link to comment
Share on other sites

@neweuquol outside of having a bank employee appear wouldn't putting the contractor on the stand do the job? Is this his signature? If you've got the person writing the check and the person cashing it present under oath, what purpose would a bank employee serve? Was there a question of money clearing the bank? Is the contractor saying he did cash this check but it bounced? Is today on the stand the first time the contractor is saying the check bounced?

Link to comment
Share on other sites

3 hours ago, CCRP626 said:

@neweuquol outside of having a bank employee appear wouldn't putting the contractor on the stand do the job? Is this his signature? If you've got the person writing the check and the person cashing it present under oath, what purpose would a bank employee serve? Was there a question of money clearing the bank? Is the contractor saying he did cash this check but it bounced? Is today on the stand the first time the contractor is saying the check bounced?

One of the reasons you should hire an attorney for almost everything is that, with all the emotions involved, we think of things you do not.    You should never rely on the opposing side to establish a critical fact unless it has been done pursuant to written stipulations signed by all parties.   Ever.

I can see the exchange going like this:

Q:  Is that your endorsement on the back of the check:

A:  I do not handle the bookkeeping.

Q:  Is that not your business name stamped?

A:  Yes.

Q:  So it is your endorsement?

A:  I do not handle the bookkeeping.   I do not know what they do to deposit funds in my accounts?   I do not know if checks clear or bounce unless someone brings it to my attention, etc.

Q:  Did someone ever tell you whether this check bounced.

A:  I do not recall

Since you have the burden of proof you just lost your burden on establishing the payment was made if the judge wants to be hyper-technical and finds the witness "credible."

In a case like this an attorney would have issued subpoenas to the bank for certified copies of all records.  If he reviewed them and saw they were not certified he would have issued a subpoena for the records custodian (which I promises you gets the attention needed) for trial and either had the "pointless" (she's not pointless) witness present at trial, had the records certified so they qualified for an exception to the heresay rule, and/or had a stipulation well before trial regarding their admission.

I do not say this to sound rude.   Usually when I consult with someone who royally screwed their case going at it at pro se, they were under some delusion they would get special treatment because they are not a lawyer.   They get in the middle of a hearing or a trial, have no idea how to present evidence, lay a foundation to introduce evidence, and look to the judge as if the judge can help them when he/she simply cannot and just do not establish a burden of proof or even a foundation for the introduction of a simple piece of evidence.   

I have read trial transcripts of trials involving pro se litigants and it's almost heart breaking to read what is happening and have the vision of someone way out his/her element looking to the judge with puppy dog eyes and saying "but I am not a lawyer help me."

Edited by neweuquol
Typo
  • Like 1
Link to comment
Share on other sites

IANAL. There is no requirement under MCL 600.2145 to title the affidavit as "Counter Affidavit." 

I  "...unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon,. . . ."http://legislature.mi.gov/doc.aspx?mcl-600-2145

 

II  “For a document to constitute a ‘valid affidavit,’ it must be: ‘(1) a written or printed declaration or statement of facts, (2) made voluntarily, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.’ Thus, . . . a document that is not notarized is not a ‘valid affidavit.’Detroit Leasing Co v City of Detroit, 269 Mich. App. 233, 236; 713 NW2d 269 (2005).

 

III  Rule 2.114 Signatures of Attorneys and Parties; Verification; Effect; Sanctions

(A) Applicability. This rule applies to all pleadings, motions, affidavits, and other papers provided for by these rules. See MCR 2.113(A). In this rule, the term "document" refers to all such papers.

(B) Verification.

(1) Except when otherwise specifically provided by rule or statute, a document need not be verified or accompanied by an affidavit.

(2) If a document is required or permitted to be verified, it may be verified by

(a) oath or affirmation of the party or of someone having knowledge of the facts stated; or

(b) except as to an affidavit, including the following signed and dated declaration: "I declare that the statements above are true to the best of my information, knowledge, and belief."

In addition to the sanctions provided by subrule (E), a person who knowingly makes a false declaration under subrule (B)(2)(b) may be found in contempt of court.

(C) Signature.

(1) Requirement. Every document of 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 document.

(2) Failure to Sign. If a document is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party.

(3) An electronic signature is acceptable provided it complies with MCR 1.109(D).

(D) Effect of Signature. The signature of an attorney or party, whether or not the party is represented by an attorney, constitutes a certification by the signer that

(1) he or she has read the document;

(2) to the best of his or her knowledge, information, and belief formed after reasonable inquiry, the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law; and

(3) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (

Link to comment
Share on other sites

14 hours ago, BV80 said:

So in MI, I could pick a name out of the phone book, file suit, attach an affidavit, offer no documentation, and if that person doesn't attach a counteraffidavit to his answer, the court would grant summary disposition in my favor?

Yes - and also, you can file a lien on someone's home with no documentation as well. So, he filed a lien on our home, filed in district court in breach of contract and account stated instead of foreclosing on the lien in circuit court. We failed to file a counter affidavit so he never had to show proof to win and now he has a judgment against us that he can take over to circuit court and use to foreclose on our house. AND HE'S NEVER ONCE HAD TO PROVE WE OWN HIM A DIME. 

Thats what I mean when I said that the whole process HS been bastardized by sleazy people with sleazy attorneys:(

Link to comment
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.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.