castle

Sued by Calvalry in Michigan

Recommended Posts

DEFENDANT’S BRIEF IN OPPOSITION TO PLAINTIFF’S

MOTION FOR SUMMARY DISPOSITION

 

STANDARD OF REVIEW

Summary disposition under MCR 2.116(C)(9) is proper if a defendant fails to plead a

proper defense to a claim. Nicitia v Detroit (After Remand), 216 Mich App 746, 750, 550 NW2d 269 (1996). A court may look only to the parties’ pleadings in deciding a motion under MCR 2.116(C)(9), MCR 2.116(G)(5). A motion under MCR 2.116(C)(9) tests the sufficiency of a

defendant’s pleadings by accepting all well-plead allegations as true. Lepp v Cheboygan Area

Schools, 190 Mich App 726, 730, 476 NW2d 506 (1991). If the defenses are so clearly untenable

as a matter of law that no factual development could possibly deny plaintiff’s right to recovery,

then summary disposition under this rule is proper. Id, quoting Domako v Rowe, 184 Mich App

137, 142, 457 NW2d 107 (1990). Pro se pleadings are to be construed liberally and expansively,

affording them all opportunity in obtaining substance of justice, over technicality of form. Maty v Grasselli Chemical Co., 303 US 197 (1938).

    MCR 2.116(C)(10) provides for summary disposition when there is no genuine issue

regarding any material fact and the moving party is entitled to judgment or partial judgment as a

matter of law. A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim, as

supported by documentation containing “content or substance [that] would be admissible as

evidence to establish or deny the grounds stated in the motion.” MCR 2.116(G)(6); see

also Adair v Michigan, 470 Mich 105, 120; 680 NW2d 386 (2004); Maiden v Rozwood, 461

Mich 109, 120-121; 597 NW2d 817 (1999).

    A trial court may grant a motion for summary disposition if the pleadings, affidavits, and

other documentary evidence, when viewed in a light most favorable to the nonmovant, show that

there is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co., 451

Mich 358, 362, 547 NW2d 314 (1996), citing MCR 2.116(G)(5). “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen. Motors Corp., 469 Mich 177, 183, 665 NW2d 468 (2003). “If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party.” MCR 2.116(I)(2). Sharper Image Corp. v Dep’t of Treasury, 216 Mich App 698, 701, 550 N.W.2d 596 (1996);Washburn v Michailoff, 240 Mich App 669, 672; 613 NW2d 405 (2000).

 

INTRODUCTION

Plaintiff Cavalry SPV I, LLC is a third-party debt collection company that purchases large electronic portfolios of stale defaulted consumer debts, for which it pays pennies on the dollar, in order to collect on them by instituting formal legal action. Plaintiff purportedly is the assignee of a Citibank, N.A. account allegedly opened and defaulted upon by the Defendant. Plaintiff has filed its Motion for Summary Disposition on its claim of an account stated and that the Defendant has failed to plead a valid defense. Because Plaintiff  has failed to meet its burden of evidentiary support for its claims and Defendant has raised an affirmative valid defense; summary disposition is not appropriate and this Honorable Court should deny Plaintiff’s motion.

 

ARGUMENT

I. Defendant’s Amended Answer Pleaded A Valid Affirmative Defense

Defendant filed an amended Answer to Plaintiff’s Complaint, denying Cavalry SPV I, LLC’s allegations based on lack of knowledge or information to form a belief as to truth of the allegations, MCR 2.111. Under a separate heading, Defendant pleaded an Affirmative Defense: Defendant asserts and evokes the private arbitration clause within the subject card agreement and compels the court to order this case to JAMS arbitration and stay the case until the completion of arbitration. The subject card agreement furthermore states that either party “may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy.” The general policy of this State is favorable to arbitration. The burden is on the party seeking to avoid the agreement, not the party seeking to enforce the agreement. Fromm v Meemic Ins Co, 264 Mich App 302, 305; 690 NW2d 528 (2004).

Attached to a submitted Motion to Compel Private/Contractual Arbitration is Defendant’s Affidavit denying ownership of account and a written request for contractual arbitration. This affidavit was properly filed and “shall be deemed prima facie evidence of such” pursuant to MCL 600.2145. Summary disposition is inappropriate under this subrule [MCR 2.116(C)(9)] when a material allegation of the complaint is categorically denied. Village of Dimondale v Grable, 240 Mich App 553, 564‐565 (2000). In fact, our Supreme Court set aside summary disposition not because of disputed facts, but because the denial of material fact constitutes the pleading a valid defense. August v Poznanski, 383 Mich 151, 155; 172 NW2d 807 (1970).

 

II. Plaintiff Fails To Establish Prima Facie Evidence Of An Account Stated; Defendant Establishes Prima Facie Evidence Against Plaintiff’s Claim

Plaintiff’s Complaint alleges a claim for an Account Stated. Plaintiff did not provide a signed and notarized affidavit from Plaintiff, Cavalry SPV I, LLC or Plaintiff’s assignor, Citibank, N.A stating account ownership, sale, and/or balance within 10 days of the Summons and Complaint, as required under MCL 600.2145. Under this statute, in order to have prima facie evidence of an account stated, a copy of the account statement must be “annexed” to an affidavit made “within 10 days next preceding the issuing of the writ or filing of the complaint or answer.”

In compliance with MCL 600.2145, the Defendant submitted his amended Answer dated, October 29, 2018, and an affidavit, dated October 30, 2018, attached to Defendant's Motion To Compel Private/Contractual Arbitration denying Plaintiff’s allegations of indebtedness and claim of an account stated. Because the Defendant submitted a timely and complaint affidavit, Defendant’s denial establishes prima facie evidence of a lack of assent to an account stated. “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).

 

III. Plaintiff Has Failed To Show Defendant’s Assent To Its Account Stated Claim

    An “account stated” refers to a “contract based on assent to an agreed balance”; which,

like all contracts, must be created through mutual assent. Fisher Sand & Gravel Co v Neal A

Sweebe, Inc, 494 Mich 543, 557, 561-562; 837 NW2d 244 (2013). “Parties assent to a 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.” White v Campbell, 25 Mich 463, 468 (1872). An

express contract arises where the parties expressly agree to the sum due. Fisher Sand & Gravel Co, 494 Mich at 558. A party’s acceptance may also be inferred where the party makes payments on the amount due or receives an accounting and fails to object within a reasonable time. Corey v Jaroch, 229 Mich 313, 315; 200 NW 957 (1924); Keywell & Rosenfeld v Bithell, 254 Mich App 300, 331; 657 NW2d 759 (2002).

    When silence forms the basis for inferring assent to a sum owed, the circumstances

involved must support an inference of assent. Thomasma v Carpenter, 175 Mich 428, 436-437;

141 NW 559 (1913). In this case, the circumstances do not support the inference of assent.

Defendant denied he ever received any communication about this alleged debt from Plaintiff or

Plaintiff’s alleged assignor to be able to verify the alleged account or dispute the amount Plaintiff

claims is due and owing (Def.’s Aff. paras. 6). Plaintiff has not submitted facts or evidence of

the manner or method nor provided the actual “repeated demands” for payment of the alleged

account stated debt.

           Merely sending bills or attaching a few bills to the complaint or motion for summary

disposition does not create an account stated.  Absence of evidence establishing continued course

of dealing, or other circumstances suggesting balance struck required for account stated,

precludes establishing liability upon accounts stated merely on proof of billing and accounts

receivable ledger. R. G. Moeller Co. v Van Kampen Constr. Co.., 57 Mich App 308, 225 NW2d

742, (1975).  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.  The 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 (Def.’s Aff. para.8).

The purported account statements (Pl.’s Ex. A) do not show a continued course of dealing

as no use or purchases are evidenced. The Federal Truth in Lending Act (TILA) provides that:

“In any action of a credit card issuer to enforce liability for the use of a credit card, the burden of

proof is upon the card issuer to show the use was authorized….15 U.S.C. 1643(b). If the use was

not authorized, the card holder cannot be liable for more than $50, and only then if the issuer

proves that it satisfied many conditions. 15 U.S.C. 1643(a). accord 12 C.F.R. 226.12. The

amount due on the alleged June 3, 2015 statement is $1,323.76, and does not indicate this is a

charge-off balance or that the account was charged off, with a final balance struck.

As stated above all the cases were brought forth by original creditors. A debt buyers has a harder time complying with TILA since they did not witness or have first hand knowledge if the charges were authorized and if the Defendant is liable for anything more than $50 under 15 U.S.C. 1643(a).

Further, looking at recent case law, in Unifund CCR Partners v. Nishawn

Riley, unpublished opinion per curiam of the Court of Appeals, issued February 18, 2010,

(Docket No.287599), Unifund provided evidence that payments were made on the account,

thereby establishing that a debt was owed to Citibank. However, the Court held that this was

insufficient to transform an open account to an account stated without evidence that Riley was

the one who made payments.  In the present case, the Defendant did deny the account, denied the

amount owed, denied receiving billing statements, and denied making payments on the account

in the Defendant’s answer, affidavit, as well as this brief.

 

CONCLUSION

As the Michigan Supreme Court has said, the party alleging that a fact is true should

suffer the consequences of failing to prove its truth. A plaintiff has the burden of proof (risk of

non persuasion) for all elements necessary to establish the case. Kar v Hogan, 399 Mich 529,

539; 251 NW2d77 (1976). Plaintiff has failed to demonstrate an absence of triable issues on material elements of its claim and seek relief before this Court. Accordingly, with material facts at issue, Summary Disposition is not appropriate in this case.

WHEREFORE, Defendant Pro Se XXXXXX respectfully requests that this Honorable Court deny Plaintiff’s Motion for Summary Disposition, and if it appears to the Court that the Defendant, rather than the Plaintiff, is entitled to judgment, render judgment in favor of the Defendant under MCR 2.116(I)(2).


 

Respectfully submitted,

Dated     ________________                _________________________                                                                                    _________________________

   

                                                                                       


 

CERTIFICATE OF SERVICE

I certify that on this date I served a copy of this answer on the plaintiffs or their attorneys

By first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3).


Date__________________        Signed ___________________________________

Link to post
Share on other sites
15 hours ago, castle said:

5. Defendant denies Plaintiff has established Defendant defaulted on the terms and conditions of the account by failing to pay as promised. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the business records, and an affidavit attached to the complaint. Defendant denies Plaintiff has established prima facie evidence of an account stated. Defendant asserts it he has established prima facie evidence of the absence of assent to an account stated between him and Plaintiff. Defendant admits Plaintiff attached as Exhibit C only a portion of the Chain of Title. Plaintiff has failed to produce competent admissible evidence of a valid assignment of title from Plaintiff’s assignor Cavalry SPV I, LLC.  Defendant denies an incomplete chain of assignment of hearsay documents is competent evidence to verify Plaintiff's ownership of the Defendant's alleged account, or to demonstrate Plaintiff's standing to adjudicate its claims. Defendant denies as untrue Plaintiff's allegations that attached as Exhibit C are copies of detailed account statements that were sent to the Defendant. Plaintiff has failed to produce competent admissible evidence of a valid assignment of title from Plaintiff’s assignor Cavalry SPV I, LLC, or a qualified witness to attest to the authenticity, trustworthiness, integrity and accuracy of the purported statements.

@castle

(I am not a lawyer) Why have you included account stated language? I believe you are being sued on a breach of contract claim, not an account stated claim. 

Link to post
Share on other sites
15 hours ago, castle said:

.  Defendant denies that he failed to raise a valid defense, affirmitive or otherwise to Plaintiff's Complaint allegations. Defendent properly asserted the existence of an agreement to arbitrate as a valid affirmative defense in a timely manner. MCR 2.111(F)(3)(a)(b).

Refer to Defendant's Answer, Affirmative Defense I (if you designated your aff. def. with a number). It is advised that you point the judge to the specific exhibit or document where s/he can find the evidence (or lack of it in plaintiff's case) to support the fact you're asserting or refuting/rebuting. 

Did you file a motion to compel arbitration? If yes, this is also evidence of your intent to arbitrate according to the contract. It is also a material dispute that should defeat their motion for summary disposition.

Link to post
Share on other sites
On 7/30/2018 at 2:35 PM, castle said:

“CHARGES”

1. Jurisdiction and venue are proper in this court.

2. That at all times hereinafter mentioned, Plaintiff Calvary, was and still is a limited liability company..etc.

3. That on or about 12/2017, Plaintiff purchased certain accounts from Citibank. Defendant is obligated on one of those accounts as more specifically described below. The account is duly assigned…

4. Upon information and belief, Defendant has possession of the contract upon which the claim is based.

5. Plaintiff and/or its assignor completed performance under the terms and conditions of the account.

6. Defendant has defaulted under the terms and conditions of the account by failing to pay as promised.

7. As of date this action was filed, there was due to Plaintiff Cavalry and from Defendant the sum of xxxx, all of which is damages due to the result of an account specifically identified as a Credit Card issued by Citibank (account number ending in XXXXXXXX)

8. Upon information and belief, Defendant is in possession of the contract.

9. Defendant has not paid the sum of xxxx, although payment thereof has been duly demanded by the plaintiff.

Is this the entire Complaint? Nowhere in here does plaintiff allege the elements of an account stated claim. IANAL. This Complaint pleads the assignment of Citibank's rights to Cavalry to collect a sum certain upon a breach of the Citi cc contract by you. 

Also, did you file an amended answer after filing your first one? Justiceforall3 did, and that is why his MSD brief argues this issue. If you did not file an amended answer, this does not belong in your response in opposition to the MSD.

Link to post
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.