gg2008

Motion for Summary Disposition Midland Funding

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38 minutes ago, gg2008 said:

I will post my revised drafts later on tonight when I am off of work!

Great. 

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I have decided to do a few things. I have to submit my amended answer by monday. I have to submit my MTC and or Change of venue by November 20th as the law requires. So right now I am focused on the amended answer and affidavit and will focus on the Motions this week coming. Here is my draft for amended answers and affidavit. 

Jurisdiction

  1. I agree with the statements in paragraph 1.

  2. I agree with the statements in paragraph 2.

Venue

  1. I disagree with the statements in paragraph 3 because the complaint account in question occurred in Wayne County, and the Defendant lived in Oakland County.

  2. I do not know if the statements in paragraph 4 are true.

Count I Account

  1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. MCR 2.118. Plaintiff has failed to provide a signed contract from Walmart showing the defendant applied for credit with G.E Capital.  Even credit cards applied for at the register require a signature on the keypad. I have no recollection of this account.

  2. I disagree with the statements in paragraph 6 because the Plaintiff has failed to provide perfected documentation showing all dollar amounts to confirm that an actual sale occured.

  3. I disagree with the statements in paragraph 7 because the  defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. MCR 2.118. I have disrupted these claims with the transunion credit bureau.

 

  1. I disagree with the statements in paragraph 8 because the plaintiff has never never extended the defendant credit. There has never been a contractual relationship between the defendant and the plaintiff. I deny I am justly indebted to Plaintiff in the amount of $2380.13.

  2. I disagree with the statements in paragraph 9 because  I deny I am justly indebted to Plaintiff in the amount of $2380.13.

Count II Account Stated

  1. I do not know if the statements in paragraph 10 are true.

  2. I disagree with the statements in paragraph 11 because I do not recall receiving statements from the the plaintiff, leaving the defendant without knowledge or information sufficient to form a belief as to the truth of the averment.

  3. I disagree with the statements in paragraph 12 because I do not have any records of payment from the the plaintiff, leaving the defendant without knowledge or information sufficient to form a belief as to the truth of the averment.

  4. I disagree with the statements in paragraph 13 because  there has been a dispute between the defendant and transunion before the complaint.

  5. I disagree with the statements in paragraph 13 because  there has been a dispute between the defendant and transunion before the complaint.

  6. Defendant incorporates paragraphs 5 through 14 of the amended answer as though fully rewritten herein.

  7. I disagree with the statements in paragraph 9 because  I deny I am justly indebted to Plaintiff in the amount of $2380.13.

 

 

 

 

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

2.  I deny Plaintiff's statement of account served upon me in June, 2018.

3.  I deny I am justly indebted to Plaintiff in the amount of $2380.13.

4.  Plaintiff never extended credit to me.

5.  There have been no transactions or course of business dealings between Plaintiff and me.

6.  The Cardmember Agreement (See Plaintiff's Exhibit D, attached.) contains a binding arbitration clause upon the parties.

7. I sent a letter via certified mail#_____/ hand delivered to Plaintiff's attorney on ________, 2018, and received on __________, 2018, electing arbitration with JAMS, as per the contract, and requesting dismissal of this case. Attached is a true and correct copy of the arbitration election letter marked as Defendant's Exhibit A.   

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


 

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@gg2008 This needs work. You must include a separate section titled AFFIRMATIVE DEFENSES to include an agreement to arbitrate. This is very important to your motion to compel. 

Please tell me when this must absolutely be done so you can get it out in time.

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On 11/5/2018 at 3:47 PM, Brotherskeeper said:

8.  As of November XX, 2018, I have had no response from Plaintiff to my election of arbitration in JAMS to settle the disputes of this alleged account.

Did you decide not to include this information? Or, did you hear back from Plaintiff's attorney?

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1 hour ago, gg2008 said:

2.  I deny Plaintiff's statement of account served upon me in June, 2018.

Do have the date you received the complaint? If you don't know exact date, you could say, "served upon me on or about June (the date you think), 2018."

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5 minutes ago, Brotherskeeper said:

@gg2008 This needs work. You must include a separate section titled AFFIRMATIVE DEFENSES to include an agreement to arbitrate. This is very important to your motion to compel. 

Please tell me when this must absolutely be done so you can get it out in time.

When I first filed the clerk told me that I did not have to include that page because it was included in my answer. She crossed it out. 

 

The motions must must be completed by the 20th. The amended answer has to be in by the 12th. Which is Monday. I can have a friend hand deliver it if need be on Monday. 

6F8D4E0C-09C2-4AE2-B47E-07B708F4E24B.jpeg

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1 minute ago, Brotherskeeper said:

Do have the date you received the complaint? If you don't know exact date, you could say, "served upon me on or about June (the date you think), 2018."

I don’t have the date. That’s why I put June 2018. I will adjust it. 

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5 minutes ago, Brotherskeeper said:

Did you decide not to include this information? Or, did you hear back from Plaintiff's attorney?

I decided not to include that language because I have not sent the JAMS yet. I will be sending it out today. 

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@gg2008

IANAL. I would include in your affidavit a numbered paragraph that states when you moved your domicile from Michigan to Wisconsin. (A domicile is what you consider to be your permanent or legal residence for this lawsuit.)

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4 minutes ago, gg2008 said:

When I first filed the clerk told me that I did not have to include that page because it was included in my answer. She crossed it out. 

Yikes! You absolutely need an AFFIRMATIVE DEFENSES section in your amended answer. 

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<<Court Case Heading here>>

FIRST AMENDED ANSWER

     NOW COMES Defendant in pro per, gg2008, and states:

1. Defendant lacks knowledge or information sufficient to form a belief as to the truth of these allegations.

2.  Defendant admits to having been a resident of Oakland County until (date you moved). As of XXXX, XX, 2018, Defendant is a resident of XXXX County, Wisconsin.

 

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1 hour ago, gg2008 said:

Venue

  1. I disagree with the statements in paragraph 3 because the complaint account in question occurred in Wayne County, and the Defendant lived in Oakland County.

Can you please explain this answer?

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2 hours ago, gg2008 said:

4.  I do not know if the statements in paragraph 4 are true.

4.  Defendant lacks knowledge or information sufficient to form a belief as to the truth of these allegations, and thereore denies. Defendant is now domiciled in Milwaukee, Wisconsin.

IANAL, but I would use consistent language in this amended answer, rather than combining language from the pre-printed civil answer form. 

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2 hours ago, gg2008 said:

5.  Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. MCR 2.118. Plaintiff has failed to provide a signed contract from Walmart showing the defendant applied for credit with G.E Capital.  Even credit cards applied for at the register require a signature on the keypad. I have no recollection of this account.

5.   Defendant is without knowledge or information sufficient to form a belief as to the truth of these allegations, and therefore denies. Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced sworn business records attached to the Complaint or Affidavit .

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39 minutes ago, Brotherskeeper said:

Can you please explain this answer?

I am just trying to explain that the debt in question occurred in wayne county. Meaning that I lived in wayne county when the statements were " supposedly" sent by GE capital bank, but the suit occurred in oakland county which is my previous address

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3 minutes ago, gg2008 said:

I just trying to explain that the debt in questions occurred in wayne county. Meaning that I lived in wayne county when the statements where " supposedly" send by GE capital bank

OK. This venue allegation is that the cause of action (the right to bring forth the lawsuit) occurred in Oakland County. Did you default on the alleged account while a resident of Wayne or Oakland County? Who knows? If you deny, the burden is on them to prove their allegations. It's your option to include information that you used to be a resident of Wayne County. Personally, I wouldn't include it here. You're trying to get this case into arb. 

3. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 

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13 minutes ago, Brotherskeeper said:

OK. This venue allegation is that the cause of action (the right to bring forth the lawsuit) occurred in Oakland County. Did you default on the alleged account while a resident of Wayne or Oakland County? Who knows? If you deny, the burden is on them to prove their allegations. It's your option to include information that you used to be a resident of Wayne County. Personally, I wouldn't include it here. You're trying to get this case into arb. 

3. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. 

ok got it. Changing it now

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1 minute ago, Brotherskeeper said:

Is what I'm doing helping you?

absolutely and if you have no further edits I will put it in the mail now.

 

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2 hours ago, gg2008 said:

6. I disagree with the statements in paragraph 6 because the Plaintiff has failed to provide perfected documentation showing all dollar amounts to confirm that an actual sale occured.

6. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies.  Plaintiff has not provided the documentation attached to the Complaint that Defendant's alleged account was duly assigned in the normal course of business to Plaintiff.

 

2 hours ago, gg2008 said:

7. I disagree with the statements in paragraph 7 because the  defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. MCR 2.118. I have disrupted these claims with the transunion credit bureau.

7. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations, and therefore denies. Defendant disputed this alleged account with TransUnion credit reporting Agency. Upon information and belief, Plaintiff has access to Defendant's credit reports.

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AFFIRMATIVE DEFENSES

AFFIRMATIVE DEFENSE 1

An agreement to arbitrate these disputes binds the parties and bars Plaintiff's claims from being pursued in court upon election of private arbitration by either party. Defendant has elected arbitration in JAMS as per the GE Capital/Synchrony Bank/ Walmart cardmember agreement (See Plaintiff's Exhibit D). A true copy of Defendant's letter of arbitration in JAMS notification to Plaintiff is attached to Defendant's Affidavit as Exhibit A, filed herein. 

Edited by Brotherskeeper
added Exhibit A

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2 hours ago, Brotherskeeper said:

AFFIRMATIVE DEFENSES

AFFIRMATIVE DEFENSE 1

An agreement to arbitrate these disputes binds the parties and bars Plaintiff's claims from being pursued in court upon election of private arbitration by either party. Defendant has elected arbitration in JAMS as per the GE Capital/Synchrony Bank/ Walmart cardmember agreement (See Plaintiff's Exhibit D). A true copy of Defendant's letter of arbitration in JAMS notification to Plaintiff is attached to Defendant's Affidavit filed herein. 

I will use this defense and I will  implement the Lack of Standing based on the fact that they have no personal knowledge of any relationship I may or may not have had with GE Capital Bank. They have also failed to produce  a bill of sale showing a transaction occurred

In A) Unifund CCR Partners v. Riley Mich App (2010) and  Brown Bark II LP v. Bay Area Floor Covering & Design Inc, (Unpublished) Mich Court of App (2011) both cases state that without the sales agreement and the account purchase agreement showing the defendants account was one of the accounts clearly shown in the sale , the Plaintiff is lacking standing. Please reference  MCL 440.9406 (Notice of Assignment and authentication of assignment)


Their affidavit,  since  I have been granted leave to amend and filed my own, is here say.

Also I know you all saw that they will not require a signed contract but in the case below the court required in all cases where a signed application is not available , that proof of payment, such as a copy of a payment check made to the credit card company, is needed to prove that the debtor agreed to the account by making payments. The court ruled that copies of monthly statements showing payments is not sufficient. 

The case is Unifund CCR Partners v. Nishawn Riley, Michigan Court of Appeals Case No. 287599, Decided February 18, 2010. The court did not accept monthly statements showing payments made on the account, as proof of payments made on the account. The court required in all cases where a signed application is not available , that proof of payment, such as a copy of a payment check made to the credit card company, is needed to prove that the debtor agreed to the account by making payments. The court ruled that copies of monthly statements showing payments is not sufficient. 

 

what do you think about that?

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