gg2008

Motion for Summary Disposition Midland Funding

Recommended Posts

Hello. I have been in battle with Midland Funding. They filed a summary dipsotion on me a few days ago. I need to know how to respond to the motion. Please help!!  They did provide credit card statements but not signed receipts.  Attached is the info. 

6354FD09-06C1-490E-8353-BDB265FE8B58.jpeg

EA3CBC5E-CE1A-4EC6-AB4B-5A51429F0E86.jpeg

6A7DBCD6-A625-4725-B0F7-AF808342EC21.jpeg

5BD7D40B-3F66-47C5-8F7E-4151BFD6F0A0.jpeg

E2463565-A714-4E6F-8E96-EF4DB1A13A4B.jpeg

4CE64DA4-F3AB-420B-8035-F76B808AF7CE.jpeg

984ADDB2-2694-4CC8-94EF-2ED638E46C23.jpeg

BC49D11E-87E1-4765-A800-DCD52DAE1A54.jpeg

Share this post


Link to post
Share on other sites

@gg2008

We need more information.   When was the lawsuit filed?  When were you served?

Did file an answer?   Has discovery taken place?

You can also review the following thread.

https://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/

 

Share this post


Link to post
Share on other sites

@gg2008 Check the date the lawsuit was filed with the court against the May 10, 2018 date the Midland/Brittany Sedahl affidavit was purportedly signed. Was the affidavit signed more than 10 days prior to the date the lawsuit was filed?  Did you include your own affidavit of account denial with your answer? (I am not a lawyer) Note: in an account stated cause of action, an affidavit made more than 10 days prior to the filing of the lawsuit doesn't invalidate an otherwise valid affidavit, it means that an "untimely" affidavit can't be deemed prima facie evidence of your indebitness. (Prima facie may be used as an adjective meaning "sufficient to establish a fact or raise a presumption unless disproved or rebutted.")

600.2145 Open account or account stated; proof, counterclaim.

Sec. 2145.

In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, 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, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.

Share this post


Link to post
Share on other sites

@gg2008 Does the credit card agreement attached to plaintiff's summary disposition motion as exhibit D contain the following or similar language?:

"• How to start an arbitration, and the arbitration process
1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers
filed in the lawsuit.
Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-
5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American
Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue,
34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the
court will appoint an arbitrator.
2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel
arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten
years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would
apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.
4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or
arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs,
to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.

• Governing Law for Arbitration
 This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant
under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter
judgment upon the arbitrator’s award."

Share this post


Link to post
Share on other sites
5 hours ago, BV80 said:

@gg2008

We need more information.   When was the lawsuit filed?  When were you served?

Did file an answer?   Has discovery taken place?

You can also review the following thread.

https://www.creditinfocenter.com/community/topic/318271-those-being-sued-in-michigan-by-a-jdb-step-by-step-in-defending/

 

The lawsuit was filed by the lawyer on May  21st, 2018 and issued by the court on June 7th, 2018. I was served June 19, 2018. I filed an answer. Discovery time is now. We have court in December. I just received this summary the other day. 

 

Share this post


Link to post
Share on other sites
5 hours ago, Brotherskeeper said:

@gg2008 Check the date the lawsuit was filed with the court against the May 10, 2018 date the Midland/Brittany Sedahl affidavit was purportedly signed. Was the affidavit signed more than 10 days prior to the date the lawsuit was filed?  Did you include your own affidavit of account denial with your answer? (I am not a lawyer) Note: in an account stated cause of action, an affidavit made more than 10 days prior to the filing of the lawsuit doesn't invalidate an otherwise valid affidavit, it means that an "untimely" affidavit can't be deemed prima facie evidence of your indebitness. (Prima facie may be used as an adjective meaning "sufficient to establish a fact or raise a presumption unless disproved or rebutted.")

600.2145 Open account or account stated; proof, counterclaim.

Sec. 2145.

In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, 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, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.

The affidavit is May 10. The lawyer signed the paperwork May 21. The court issued the summons June 9. This was my initial response to the case. 

A501128E-63B4-48FE-9FDD-589AC1B903B4.jpeg

Share this post


Link to post
Share on other sites
4 hours ago, Brotherskeeper said:

@gg2008 Does the credit card agreement attached to plaintiff's summary disposition motion as exhibit D contain the following or similar language?:

"• How to start an arbitration, and the arbitration process
1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers
filed in the lawsuit.
Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-
5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American
Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue,
34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the
court will appoint an arbitrator.
2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel
arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten
years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would
apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.
4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or
arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs,
to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.

• Governing Law for Arbitration
 This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant
under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter
judgment upon the arbitrator’s award."

Yes it does include arbitration language.

Share this post


Link to post
Share on other sites
8 hours ago, gg2008 said:

They did provide credit card statements but not signed receipts.

There is NO court that is going to require the signed receipts.  FIRST:  that was handed to you when you used the card.  SECOND:  You have 6 months to dispute a charge.  After that expires the charges are presumed valid.  The actual signed receipts only matter if you are disputing a charge as fraudulent with the creditor/merchant.

As for a signed contract the court knows one does not exist in a credit card case.  The card agreement and statements would be enough that the Defendant consented to the terms of the account, used the card, made payments then defaulted creates the contract between the creditor and the consumer.

Your best bet to beat this is to get a MTC arbitration approved.  If you try this in court they have enough in that paperwork to prevail.

Share this post


Link to post
Share on other sites
1 hour ago, gg2008 said:

No I did not submit a letter of denial. 

It appears you're being sued on an account stated cause of action. I posted the Michigan statute (MCL 600.2145) above. Under this law, you should have submitted with your answer a valid counter-affidavit (your sworn statement under penalty of perjury) that denied the debt amount they assert you agreed to. As you did not file this affidavit, their affidavit puts you at a disadvantage. 

Did plaintiff attach the Synchrony Walmart credit card agreement to the complaint, or did you first see it attached to the summary disposition motion? 

The existence of an agreement to arbitrate claims is an affirmative defense, which should be included in your answer. (I am not a lawyer. IANAL) An answer may be amended to include an affirmative defense with either the permission of the plaintiff or upon motion to amend granted by the judge. I do not know if just filing a motion to compel arbitration without amending your answer would be enough to prevail. Your argument would likely be stronger if you only saw the credit card agreement they claim governs the account when it was recently submitted with their (MSD) motion for summary disposition. IMO this argument would be less persuasive if they attached the agreement to their complaint, and you failed to take any action since July to avail yourself of your contractual right to arbitrate the claims. It may be even harder to prevail on a MTC arb if you've engaged in considerable discovery requests. In any case, you must submit an oppositon response to their MSD by the deadline. Please research the motion to compel arbitration.

We haven't seen the complaint or your answer. Can you post them? 

Share this post


Link to post
Share on other sites

Hey I posted my answer above. It

 is the handwritten response. I cannot locate the initial complaint. I don't believe they sent a contract between Synchrony bank because I put in my response that they did not have all contracts and charge slips. 

Share this post


Link to post
Share on other sites
On 10/13/2018 at 4:52 PM, gg2008 said:

The affidavit is May 10. The lawyer signed the paperwork May 21. The court issued the summons June 9. This was my initial response to the case. 

A501128E-63B4-48FE-9FDD-589AC1B903B4.jpeg

This is your answer? It does not appear that you denied their allegations. Each complaint allegation in each numbered paragraph of the complaint must be denied in your answer, or it is deemed admitted. Under the rules of civil procedure, 

Rule 2.111 General Rules of Pleading

"(C) Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must

(1) state an explicit admission or denial;

(2) plead no contest; or

(3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial.

(D) Form of Denials. Each denial must state the substance of the matters on which the pleader will rely to support the denial.

(E) Effect of Failure to Deny.

(1) Allegations in a pleading that requires a responsive pleading, other than allegations of the amount of damage or the nature of the relief demanded, are admitted if not denied in the responsive pleading.

(2) Allegations in a pleading that does not require a responsive pleading are taken as denied.

(3) A pleading of no contest, provided for in subrule (C)(2), permits the action to proceed without proof of the claim or part of the claim to which the pleading is directed. Pleading no contest has the effect of an admission only for purposes of the pending action."

Share this post


Link to post
Share on other sites
12 hours ago, gg2008 said:

I am not sure. I called the court and have not received a call back. 

You are responsible as a pro se defendant for knowing Michigan Rules of Civil Procedure.

Rule 2.116 Summary Disposition

G) Affidavits; Hearing.

(1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule.

(a) Unless a different period is set by the court,

(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and

(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.

(iii) the moving party or parties may file a reply brief in support of the motion. Reply briefs must be confined to rebuttal of the arguments in the nonmoving party or parties’ response brief and must be limited to 5 pages. The reply brief must be filed and served at least 4 days before the hearing.

(iv) no additional or supplemental briefs may be filed without leave of the court.

(b) If the court sets a different time for filing and serving a motion, or a reply brief, its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.

(c) A copy of a motion, response (including brief and any affidavits), or reply brief filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE'S COPY on the cover sheet; that notation may be handwritten.

(2) Except as to a motion based on subrule (C)(8) or (9), affidavits, depositions, admissions, or other documentary evidence may be submitted by a party to support or oppose the grounds asserted in the motion.

(3) Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted in the motion are required

(a) when the grounds asserted do not appear on the face of the pleadings, or

(b) when judgment is sought based on subrule (C)(10).

(4) A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.

(5) The affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties, must be considered by the court when the motion is based on subrule (C)(1)-(7) or (10). Only the pleadings may be considered when the motion is based on subrule (C)(8) or (9).

(6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.

(H) Affidavits Unavailable.

(1) A party may show by affidavit that the facts necessary to support the party’s position cannot be presented because the facts are known only to persons whose affidavits the party cannot procure. The affidavit must

(a) name these persons and state why their testimony cannot be procured, and

(b) state the nature of the probable testimony of these persons and the reason for the party’s belief that these persons would testify to those facts.

(2) When this kind of affidavit is filed, the court may enter an appropriate order, including an order

(a) denying the motion, or

(b) allowing additional time to permit the affidavit to be supported by further affidavits, or by depositions, answers to interrogatories, or other discovery.

(I) Disposition by Court; Immediate Trial.

(1) If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay.

(2) 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.

(3) A court may, under proper circumstances, order immediate trial to resolve any disputed issue of fact, and judgment may be entered forthwith if the proofs show that a party is entitled to judgment on the facts as determined by the court. An immediate trial may be ordered if the grounds asserted are based on subrules (C)(1) through (C)(6), or if the motion is based on subrule (C)(7) and a jury trial as of right has not been demanded on or before the date set for hearing. If the motion is based on subrule (C)(7) and a jury trial has been demanded, the court may order immediate trial, but must afford the parties a jury trial as to issues raised by the motion as to which there is a right to trial by jury.

(4) The court may postpone until trial the hearing and decision on a matter involving disputed issues of fact brought before it under this rule.

(5) If the grounds asserted are based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be justified.

Share this post


Link to post
Share on other sites

Hey Guys. After much research and re reading your claims and getting consultation from lawyers I would like to let you know that the affidavit was signed may 10. The suit was filed June 7. Do you guys think I should still try for a motion for arbitration or just respond with an invalid affidavit? Please  respond 

Share this post


Link to post
Share on other sites
19 hours ago, gg2008 said:

I would like to let you know that the affidavit was signed may 10. The suit was filed June 7. Do you guys think I should still try for a motion for arbitration or just respond with an invalid affidavit?

 

On 10/13/2018 at 11:43 AM, Brotherskeeper said:

(I am not a lawyer) Note: in an account stated cause of action, an affidavit made more than 10 days prior to the filing of the lawsuit doesn't invalidate an otherwise valid affidavit, it means that an "untimely" affidavit can't be deemed prima facie evidence of your indebitness. (Prima facie may be used as an adjective meaning "sufficient to establish a fact or raise a presumption unless disproved or rebutted.")

If you had filed your own affidavit with your answer denying the debt or the debt amount, you would have been in a stronger position against their affidavit. The affidavit being signed more than 10 days in advance of the filing of the suit does not "invalidate" the affidavit. Do you have evidence to disprove or rebut their evidence?

As I said before, filing a motion to amend your answer along with the motion to compel arbitration is probably your best option--other than negotiating a settlement. If you were supposed to file an opposition response to the motion for summary disposition on Monday, and did not do so, arbitration may be your only hope. If you have exchanged and engaged in discovery requests, they could argue you failed to exercise your right to arb in a timely manor and have prejudiced them. 

Share this post


Link to post
Share on other sites

Update. 

 

I have been granted a motion to file leave for amended answer. 

 

The judge gave me until next week to file it. The judge has been known to favor the defendants in these cases. I will be able to submit my affidavit and amended answer. She asked if I will file a motion I told her I will  

 

Do you guys guys still think the best thing to do is to file a motion to compel arbitration of shall I fight this case at the next notice of hearing. Let me know what you think. 

Share this post


Link to post
Share on other sites
9 minutes ago, gg2008 said:

I have been granted a motion to file leave for amended answer. 

Great.

10 minutes ago, gg2008 said:

I will be able to submit my affidavit and amended answer.

I encourage you to post your draft here before you submit it to the court.

11 minutes ago, gg2008 said:

Do you guys guys still think the best thing to do is to file a motion to compel arbitration

I vote yes.

@gg2008 Did you submit a response in opposition to their motion for summary judgment that was due, I believe you said, this past Monday? 

Share this post


Link to post
Share on other sites

My motion to Anend served as my response. 

 

The judge said  the plaintiff can redo their summary judgement. He said he will not change the summary judgement. I can still submit a response to summary judgement as well. 

Share this post


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.