CandyCLC

Here We Go Again, PRA this time

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On 7/23/2018 at 10:29 PM, Harry Seaward said:

Maybe I'm going blind. I see PRA's affidavit on page 2, but I don't see an affidavit from you. 

I haven't posted any of the papers I am filing here, my affidavit attached to my MTC this time around will just be the CC agreement, I'm not even giving the PRA affidavit any of my time right now. I am filing the same motion to compel that I did last time but obviously changing it to reflect current information.

I am going to file it next week, I have 5 days left.

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On 7/30/2018 at 11:02 PM, castle said:

Hi CandyCLC,

My answer and/or MTC is due on 8/8 also. Do you recommend filing both or just the MTC arbitration first?

Thanks

I keep overthinking the stupid answer form when I have already written a motion in lieu of answer before, including the corresponding case law (my other thread has it posted on there). You have to answer the lawsuit first and file the MTC either with it or after, OR, file an MTC in Lieu of an answer. I am going to file the MTC in Lieu again. It's $20 to file a motion in my county. but you definitely HAVE to answer by the date wether its a motion or an actual answer.

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1 hour ago, BV80 said:

I guess @bob5150gave up.  :-)  Thank  goodness!  There's enough stupid and incorrect information on the internet without it infiltrating this site. 

Man I am all caught up! I don't even understand how someone in Idaho who doesn't know anything about Michigan laws can even come in here and spew some random things and expect me or anyone reading this, to just be scared and run from Arb. Honestly I think it's a troll debt buyer. Last time I was sued I didn't get the ball rolling in Arb but I filed an MTC that was serious enough that I was able to leverage a settlement on my terms, not theirs. I'm pretty confident in the MTC I did, and for this case, I am taking my case laws supporting why I'd like the case to move to Arb, so they can't come out with the account stated mess.

 Right now I just need to get my stuff filed and wait for the court date, and be awesome at my new job. It's factory work, and I am 40, so please say a quick prayer for my bones not to start feeling my actual age anytime soon 😁

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9 hours ago, CandyCLC said:

I'm pretty confident in the MTC I did, and for this case, I am taking my case laws supporting why I'd like the case to move to Arb, so they can't come out with the account stated mess.

@CandyCLC

In your last case, your motion in lieu contained some cites that did not apply. I would encourage you to post your drafts for input before filing them. The amount of this debt is far greater than the last. It may be possible to include language/support to nip opposition arguments in the bud. 

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On 8/3/2018 at 11:01 AM, Brotherskeeper said:

@CandyCLC

In your last case, your motion in lieu contained some cites that did not apply. I would encourage you to post your drafts for input before filing them. The amount of this debt is far greater than the last. It may be possible to include language/support to nip opposition arguments in the bud. 

Here is my current. Personal info redacted and changed of course and the formatting is off per the usual -

 

---------------------------------------

 STATE OF AMAZING

IN THE XXA DISTRICT COURT, XXXXX COUNTY

  

 

PRA, LLC

 

          Plaintiff

 

VS                                                                                                       Case No: XX-XXXXXX

CANDYCLC

 

            Defendant

 

 

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION, IN LIEU OF AN ANSWER

 

      NOW COMES , Cand, Defendant in pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank Cardholder Agreement, (" the Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority.  Pursuant to MCR 2.108(A)(1) and MCR 2.111(F)(2), Defendant in pro se is filing this Motion in lieu of filing an Answer and states the following:

 

1.   On July 18, 2018, Defendant was personally served with the Summons and Complaint in the above-captioned matter. Plaintiff claims it is an assignee of Defendant's account with Synchrony Bank/GAP and seeks to collect an account stated balance. None of the documents referred to in the Complaint were attached as exhibits. 

2. Defendant obtained a copy of the applicable 2016 Synchrony Bank/GAP Cardholder Agreement, (the "Agreement"), from the Consumer Financial Protection Bureau (CFPB) database at https://www.consumerfinance.gov/credit-cards/agreements/ (accessed July 19th, 2018). Under Section 204 of the Credit CARD Act of 2009, Synchrony Bank/GAP is required to provide copies of its written agreements to the CFPB so as to be easily accessible and retrievable by the public. A true and correct copy of the applicable Agreement is attached to the Affidavit of CandyCLC filed and served herewith as Exhibit A, and incorporated herein by reference. For the convenience of this Court, I have highlighted the section of the agreement that contains the Arbitration Clause, found on pages 4-5.

3. The "Agreement" states "If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Gap Inc. if it relates to your account. " (Page 4 Paragraph 16) Exhibit A

4. The “Agreement” states “This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA)” (Page 5 Paragraph 5) Exhibit A

5. The Federal Arbitration Act (FAA) 9 USC, §2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract.” 

6. The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Burns v. Olde Discount Corp., 212 Mich App 576, 580, 538 N.W.2d 686 (1995). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Kauffman v Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). To ascertain the arbitrability of an issue, a court must consider whether there is an arbitration provision in the parties' contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. Burns, supra, at 580.  Any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Id. In the present case, all three of the requisites to arbitration are established.  There is a written arbitration clause that is part of a valid written contract.  The claims at issue fall under the scope of the arbitration clause. Defendant, at the first opportunity, has sought to compel arbitration as permitted in the Agreement's "Enforcement" section.  (Exhibit A, page 4 paragraph 16)

7.  Additionally, the agreement states that “The party filing arbitration must choose an administrator, which can be either the American Arbitration Association  (“AAA”), or JAMS, (Page 5 Paragraph 1) Exhibit A

8. The Supreme Court emphasized in its decision in AT&T Mobility L.L.C. v. Concepcion, 563 U.S. 333 (2011), that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " Id.

7. In lieu of filing an answer to Plaintiff's Complaint, Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Agreement (Exhibit A), pursuant to MCR 2.108(A), 2.108(B), 2.116(C)(7), 2.116(D)(2). "[D]efendants are entitled to file their motion to dismiss in lieu of filing an answer to plaintiffs' complaint." See Huntington Nat'l Bank v Ristich, 292 Mich App 376, 387-388; 808 NW2d 518 (2011); DeCaminada v Coopers & Lybrand, LLP, 232 Mich App 492, 494-496; 591 NW2d 364-367 (1998).

9. The FAA and the USC have determined that there is an absolute right to arbitration, if a contract contains a clause allowing for private contractual arbitration in lieu of litigation.

 

   WHEREFORE, for the foregoing reasons, Defendant respectfully requests that this Honorable Court grant this Motion to compel Plaintiff to arbitrate all of its claims alleged in the Complaint per the terms of the Arbitration Agreement and dismiss this action.  In the alternative, the Court should order that this action be stayed pending completion of private contractual arbitration in JAMS.

 

                                                                                                Respectfully submitted,

 

_____________                                                                      _________________________

Dated                                                                                      Cand, Pro Se

 

CERTIFICATE OF SERVICE

I certify that on this date I served a copy of this Motion to Dismiss, or in the Alternative, Stay Case and Compel Arbitration In Lieu of Answer on the plaintiffs or their attorneys by certified first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3). 

 



__________________Date ___________________________________Signed

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Affidavit

---------------------

STATE OF MICHIGAN

IN THE XXX DISTRICT COURT, XXXXX COUNTY

AFFIDAVIT OF CANDYCLC

Case No: XX-XXXXXX

 

 

 

     NOW COMES Defendant in Pro Se, CandyCLC, whose residence is NunyaBusiness, MI certifies and says:

1. I am a resident of the State of Michigan, XXXXX County, and I am a competent person over 18 years of age.  This affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify to the facts in this affidavit.

2.  On July 18, 2018, I was personally served at my residence with a copy of the Summons and Complaint in the above-captioned matter. None of the documents referred to in Plaintiff's Complaint were attached as exhibits.

3.  I obtained a copy of the applicable 2016 Synchrony Bank Cardholder Agreement from the Consumer Financial Protection Bureau (CFPB) database at  https://www.consumerfinance.gov/credit-cards/agreements/. (Accessed on July 18, 2018.) Under the Credit CARD Act of 2009, Synchrony Bank is required to provide copies of its written agreements to the CFPB so as to be easily accessible and retrievable by the public. A true and correct copy of the applicable Agreement is attached as Exhibit A. For the convenience of this Court, I have highlighted the section of the agreement that contains the Arbitration Clause, found on pages 4-5.

 

4.  I elect to exercise my contractual right to have the disputes of this account and the disputed amount of $X,XXX.XX to be resolved by a JAMS arbitrator rather than in this Court. 

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

 

 

 Dated: August 6, 2018   

_________________________

CandyCLC, Pro Se

 

STATE OF MICHIGAN

COUNTY OF XXXXX

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

My commission expires on:___________

 

 

                                                                                                                                           ______________________(Notary's signature)                                                                                           Notary Public

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4 hours ago, CandyCLC said:

1.   On July 18, 2018, Defendant was personally served with the Summons and Complaint in the above-captioned matter. Plaintiff claims it is an assignee of Defendant's account with Synchrony Bank/GAP and seeks to collect an account stated balance. None of the documents referred to in the Complaint were attached as exhibits. 

Is this accurate? What is their Exhibit A? Attached as Exhibit A was a PRA affidavit to satisfy the account stated requirement (MCL 600.2145)--except it appears, depending on when the complaint was actually filed, to be dated more than 10 days prior to the filing date. (Remember, this doesn't invalidate the affidavit; it means the affidavit is no longer considered prima facie evidence of the stated account.) 

Isn't it more accurate to state that none of the documents referred to in PRA's Exhibit A affidavit are attached to the affidavit?

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19 minutes ago, Brotherskeeper said:

Is this accurate? What is their Exhibit A? Attached as Exhibit A was a PRA affidavit to satisfy the account stated requirement (MCL 600.2145)--except it appears, depending on when the complaint was actually filed, to be dated more than 10 days prior to the filing date. (Remember, this doesn't invalidate the affidavit; it means the affidavit is no longer considered prima facie evidence of the stated account.) 

Isn't it more accurate to state that none of the documents referred to in PRA's Exhibit A affidavit are attached to the affidavit?

It is more accurate! As for the dates, the date the PRA affidavit was stamped was March 30. The day the summons/complaint was issued was June 12th. And then the day I was actually served was July 18th.

I will make the change you suggested, how does everything else look? Should I change the wording on my affidavit too about the documents not being attached to their exhibit A? I am more than likely filing Tuesday, because I start my new job tomorrow and I will not know what my training hours will be until then. I will be running up against the time clock if I try to make it after work tomorrow but want to have everything ready in case I can still make it, but if I get put straight on the shift for days I know I will have another hour at least, and it's an hour drive from my work to the courthouse.

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17 hours ago, CandyCLC said:

Should I change the wording on my affidavit too about the documents not being attached to their exhibit A?

Sorry, my internet was out most of yesterday. Your affidavit is your sworn testimony. Should you correct known inaccuracies in it before swearing to it? What do you think?

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BK - I did change my affidavit!

Long overdue update but nothing exciting, filed my motion, got a pre trial conference hearing for Sept. 10. In other news, my new job is kicking my arse. Factory hard work at sometimes 6 days/58 hours a week. I am not used to this level of activity and my house is a tornado but I am getting it back together. My focus right now is pin pointing the case laws that are in favor of Arb in Michigan and also and finding the response if they try to say "account stated" can't be arbitrated. I want a handy dandy print out right in front of me, but also maybe try to commit the info to memory during my breaks at work.

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Does anyone else think it is necessary, in paragraph 2, to include where OP obtained the card agreement from?  I don't like it because it seems to be extra information that can muddy the waters needlessly.  I would want to simply state something along the lines of:    "A true and correct copy of the applicable Card Agreement that was in effect on the account at the time of the alleged default is attached as Exhibit "X" along with an affidavit verifying authenticity."

I would only bring up how it was obtained if THEY bring it up in the opposition.  Too much information can help the other side form opposing arguments they would have otherwise perhaps not raised.  I don't want to give them any extra unnecessary info at this time.

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@fisthardcheese In Michigan the complaint allegations for breach of CC contract usually include the allegation that the defendant has a copy of the agreement in his/her possession as the reason (see MCL 2.113(F)(1)(b) below) it isn't attached to the complaint or JDB affidavit. Michigan defendants are often uncomfortable with the idea of not asserting a denial of this allegation in an answer. Including the language of the agreement's source being the OC by way of a federal respository in the defendant's MTC affidavit gets around the "just got it off the Internet" argument without admitting to having had the original account. You may be right that it isn't necessary. 

Rule 2.113 Form of Pleadings and Other Papers

F) Exhibits; Written Instruments.

(1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is

(a) a matter of public record in the county in which the action is commenced and its location in the record is stated in the pleading;

(b) in the possession of the adverse party and the pleading so states;

(c) inaccessible to the pleader and the pleading so states, giving the reason; or

(d) of a nature that attaching the instrument would be unnecessary or impractical and the pleading so states, giving the reason.

(2) An exhibit attached or referred to under subrule (F)(1)(a) or (b) is a part of the pleading for all purposes.

.

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18 hours ago, Brotherskeeper said:

@fisthardcheese In Michigan the complaint allegations for breach of CC contract usually include the allegation that the defendant has a copy of the agreement in his/her possession as the reason (see MCL 2.113(F)(1)(b) below) it isn't attached to the complaint or JDB affidavit. Michigan defendants are often uncomfortable with the idea of not asserting a denial of this allegation in an answer. Including the language of the agreement's source being the OC by way of a federal respository in the defendant's MTC affidavit gets around the "just got it off the Internet" argument without admitting to having had the original account. You may be right that it isn't necessary. 

Rule 2.113 Form of Pleadings and Other Papers

F) Exhibits; Written Instruments.

(1) If a claim or defense is based on a written instrument, a copy of the instrument or its pertinent parts must be attached to the pleading as an exhibit unless the instrument is

(a) a matter of public record in the county in which the action is commenced and its location in the record is stated in the pleading;

(b) in the possession of the adverse party and the pleading so states;

(c) inaccessible to the pleader and the pleading so states, giving the reason; or

(d) of a nature that attaching the instrument would be unnecessary or impractical and the pleading so states, giving the reason.

(2) An exhibit attached or referred to under subrule (F)(1)(a) or (b) is a part of the pleading for all purposes.

.

Using this, if they did not attach the document to the complaint and are relying on section (b) that the agreement was provided to the Defendant, then I would say that is even more reason not to go into detail on where it was obtained.  They admit I have the card agreement, I produce a card agreement.  They can not now state I have the wrong one because they already said I had it therefore they did not provide it as required. 

While it does answer the "just got it off the internet" argument, I don't like to answer arguments that have not yet been made.  That is the same as making the argument yourself and then refuting the argument against yourself that you just made.

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4 hours ago, fisthardcheese said:

They admit I have the card agreement, I produce a card agreement. 

Wouldn't you need to make certain then to admit to the complaint allegation that the contract is in your possession in your answer? Defendants usually deny or use lack of information and therefore deny to answer JDB allegations of the original account.  

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I recall this was an argument several years ago - that in order to elect arbitration, one essentially needed to admit to the debt. I believe Fist said, worst case, you argue that you have had many cards over the years and perhaps some from same OC - that the agreement DOES apply to this type of account, and it is up to the arbitrator to adjudicate these specific claims.

So you would be saying "these claims may or may not be valid, but we all agree that this arbitration clause governs the account that the plaintiff is alleging is mine." You just keep arguing that the OC's contract + arbitration clause + FAA + local rules mean that any and all disputes are to be resolved in arbitration.

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2 hours ago, Brotherskeeper said:

Wouldn't you need to make certain then to admit to the complaint allegation that the contract is in your possession in your answer? Defendants usually deny or use lack of information and therefore deny to answer JDB allegations of the original account.  

I read the complaint posted on page 2 here and they make no such allegation.  They simply allege that they bought an account and that an amount is due and owing on said account.  Denying that entire complaint does not specifically deny that you hold in your possession a card agreement from synchrony bank.

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11 minutes ago, fisthardcheese said:

I read the complaint posted on page 2 here and they make no such allegation.

Correct. The complaint's cause of action is on an account stated, not breach of contract. According to the rules cited above, if an affirmative defense is pleaded based on a written instrument, a copy of the instrument or its pertinent parts must be attached as an exhibit, or state that it is in the possession of the adverse party. I suppose you could invoke the arbitration clause as an affirmative defense and state that the JDB plaintiff is in possession of the original contract! 

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BK - They called it a pre-trial conference, and when she entered in the motion, if I recall correctly, as a responsive pleading. What happened last time is the lawyer showed up right before and did his thing, the judge asked the status and the lawyer said we came to an agreement and handed the paper to the judge, asked me if I signed it and that was it. I don't know what the lawyer will offer tomorrow but I do have a limit I would agree to in a settlement. I am right now printing out a sort of cheat sheet of my arguments in support of Arb so that I don't spazz out and say something stupid like "You should grant my motion because I asked for it". I want my FAA rules and cases ready in black and white that will help me with my argument.

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Just got out of court, I didn’t settle. Motion hearing for Arb set for October 8. I stayed quiet until the lawyer asked the judge for 60 days in order for me to file. Judge asked if I had a comment and I pulled out the contract and read the provision that THEY have to initiate. Prior to that she was going to suggest mediation. Also she read the contract aloud herself, and she looked at the lawyer and said according to this contract, if it’s requested, it must be granted. I didn’t smirk or anything but inside my heart was pounding. The lawyer seemed pretty confident at the beginning but the contract and judge made him nervous and he changed from asking for discovery and things to saying he’ll be in contact with me. 

For reference, the judge doesn’t know anything about arbitration but they did not fully accept my motion in lieu and she said I have to answer the lawsuit as well. She said all of this before she re-read the contract. I think the lawyer wants an actual answer so they can file a response. He of course mentioned the costs. Outside the courtroom some lady mentioned a local arbitration service and the lawyer was all ooooh cheaper! But he obviously hasn’t read the contract that states it’s JAMS or AAA or the motion that states I have chosen JAMS.

In any case I’m going home to get a nap, I have a ten hour shift later. I’m proud I didn’t settle, but I need to prepare for that court date to make sure it’s granted.

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14 minutes ago, CandyCLC said:

I think the lawyer wants an actual answer so they can file a response.

There's no response to an answer. They want an answer because a MTC is not a proper response to a complaint (I think I said that in here earlier).

15 minutes ago, CandyCLC said:

I’m proud I didn’t settle

You done good, kid! Stick with it. Make them happy and file an answer denying everything but your name and address, and leave it at that. 

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24 minutes ago, Harry Seaward said:

 

You done good, kid! Stick with it. Make them happy and file an answer denying everything but your name and address, and leave it at that. 

I’ll get in that answer this week, but in denying everything, you mean also denying the debt? And for the affirmative defense, is this where I’m to mention the pending motion to compel hearing?

i did cite case laws in my motion about motion in lieu being acceptable in MI but as it is a smaller court, they just want an answer. I believe I did already download the proper court answer form so I’ll pull it up. 

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@CandyCLC

Rule 2.116 Summary Disposition

(B) Motion.

(1) A party may move for dismissal of or judgment on all or part of a claim in accordance with this rule. A party against whom a defense is asserted may move under this rule for summary disposition of the defense. A request for dismissal without prejudice under MCL 600.2912c must be made by motion under MCR 2.116 and MCR 2.119.

(2) A motion under this rule may be filed at any time consistent with subrule (D) and subrule (G)(1), but the hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(7) Entry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:

(2) The grounds listed in subrule (C)(5), (6), and (7) must be raised in a party's responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party's first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

 

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