gg2008

Motion for Summary Disposition Midland Funding

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28 minutes ago, gg2008 said:

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

Standing to sue means the defendant has caused the plaintiff to suffer an injury.  In this case, it would be an economic injury when the account was not paid.

Lack of standing means the plaintiff has not proven it owns the account in question.  Therefore, the plaintiff has has not proven it has suffered an injury.   

 

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18 minutes ago, gg2008 said:

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

A valid affidavit is sworn testimony made in a notarized written form under penalty of perjury. Hearsay is not an evidenciary argument to be made by you in your Answer. Your Answer is not to argue against their case, but to respond to their Complaint allegations. It's important also to remember that the ideal outcome for you is to have your MTC granted, not to continue to trial.

22 minutes ago, gg2008 said:

The case is Unifund CCR Partners v. Nishawn Riley, Michigan Court of Appeals Case No. 287599, Decided February 18, 2010

This is an unpublished case and isn't precedent for this court. If you dig down into the weeds of this case, the defendant had filed an id theft dispute with the CRAs. 

I stopped my suggestions because I thought you had sent this out.

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@gg2008 how about something like this?

AFFIRMATIVE DEFENSE II

Lack of standing.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced sworn business records attached to the Complaint or Affidavit to show the existence of a valid contract for the alleged account with Plaintiff's assignor and Plaintiff's ownership as assignee of Defendant's specific account . 

 

AFFIRMATIVE DEFENSE III

Failure to state a claim for which relief can be granted. Plaintiff does not have standing to assert this claim and has failed to state a cause of action for which relief can be granted. 

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1 hour ago, Brotherskeeper said:

@gg2008 how about something like this?

AFFIRMATIVE DEFENSE II

Lack of standing.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced sworn business records attached to the Complaint or Affidavit to show the existence of a valid contract for the alleged account with Plaintiff's assignor and Plaintiff's ownership as assignee of Defendant's specific account . 

 

AFFIRMATIVE DEFENSE III

Failure to state a claim for which relief can be granted. Plaintiff does not have standing to assert this claim and has failed to state a cause of action for which relief can be granted. 

I definitely agree with the lack standing, but I didn't think about the failure to state a claim. I will add those to the above affirmative defenses. I did not submit it because I wanted to make sure it was complete. I will have a friend hand deliver it Tuesday because the Court is closed Monday for Veterans day. Even though the judge asked for it Monday. Do you think three defenses are enough?

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Here is what I will submit. Exactly what you have posted. I also have made the necessary edits to the amended answer and will not repost them, just for the sake of space. I will submit a amend answers, affidavit, and affirmative defense on monday to the court via hand delivered. .

 

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.

AFFIRMATIVE DEFENSE II

Lack of standing.  Plaintiff's and Plaintiff's Affiant's conclusory statements are offered without the referenced sworn business records attached to the Complaint or Affidavit to show the existence of a valid contract for the alleged account with Plaintiff's assignor and Plaintiff's ownership as assignee of Defendant's specific account .

 

AFFIRMATIVE DEFENSE III

Failure to state a claim for which relief can be granted. Plaintiff does not have standing to assert this claim and has failed to state a cause of action for which relief can be granted.


 

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3 minutes ago, gg2008 said:

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.

@gg2008  See text in red. If you have the page number of the Synchrony Walmart cardmember agreement, you could add , (See Plaintiff's Exhibit D, page X).

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4 minutes ago, Brotherskeeper said:

@gg2008  See text in red. If you have the page number of the Synchrony Walmart cardmember agreement, you could add , (See Plaintiff's Exhibit D, page X).

I have the arbitration letter sent already by following @Linda7 strategies. 

I will not include the page language because the plaintiff doesn’t have it marked. I think see exhibit D will suffice. 

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12 minutes ago, gg2008 said:

Do you think three defenses are enough?

Yes. An affirmative defense is a new fact or set of facts that operates to defeat a claim even if the facts supporting that claim are true. Allegations in a Complaint are considered to be true unless a defendant denies them in her/his Answer. Then, the burden going forward rests with the Plaintiff to offer admissible evidence to support its assertions. The burden of offering admissible evidence for an affirmative defense falls to you. In your case, the burden of offering evidence of the arbitration clause falls to you. Luckily, Plaintiff has made this easier by submitting the cardmember agreement it claims applies and govern the account as an exhibit to its MSD. 

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4 minutes ago, gg2008 said:

I have the arbitration letter sent already by following @Linda7 strategies. 

I haven't read that thread in a very long time. For more updated arb info going forward, I would suggest Fisthardcheese's pinned thread in Arbitration. 

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    @gg2008 Don't forget to include:

 

 WHEREFORE, Defendant in Pro Per, gg2008,  requests that this Honorable Court dismiss Plaintiff’s Complaint.

 

            Dated XXX                                                       Respectfully submitted,

 

You also need to include the certificate of service. An example to copy is found here: https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/mc03.pdf  at the bottom of page 1.

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I already have it! Thanks guys! Wish me luck. Will give updates as it gets closer. Will also post my MTC next week. Hopefully the other user chimes in with the change of venue 

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@gg2008 IANAL. I did a quick bit of research. I believe the proper term for this is forum non conveniens. I might suggest you consider this argument could be added /requested in support of your MTC arb. JAMS is another forum that could adequately hear this case. Midland Funding certainly sues in Wisconsin courts, and likely faces motions to compel arbitration in Wisconsin courts as well. Midland itself motions to compel arbitration when it is a defendant in FDCPA cases. 

Forum non Conveniens
"Definition
A court's discretionary power to decline to exercise its jurisdiction where another court may more conveniently hear a case.

Overview
Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case. This dismissal does not prevent a plaintiff from re-filing his or her case in the more appropriate forum. See Res Judicata. This doctrine may be invoked by either the defendant, or by the court. See sua sponte. . ."

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On 11/8/2018 at 10:17 PM, BV80 said:

Perhaps @fisthardcheese will respond in regard to filing a MTC when the defendant resides in a state other than where the lawsuit was filed.

In a case like this, once the MTC is granted, the OP can request that the JAMS hearing be held in their new city of residence.  Even though it is a different state than the court action, the JAMS rules state a hearing is to take place near the consumer's place of residence. The consumer can show their current residence to JAMS and although the attorney will object, they should be able to get this one ruled in their favor by the arbitrator.  Although this would be another check in the OP's favor for the arbitration case (adding travel time and expense to the attorney now), it's not likely to get that far anyway and all of the JAMS dealings up to the hearing will be by email anyway.

I would just make sure that OP mail off the JAMS demand paperwork to the closest office to their new residence and put their new town in the paperwork as the location for a hearing to take place.

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@fisthardcheese

Thanks for responding.   I wondered if the OP could use location of arbitration in his favor.   

You provided some very helpful and important information.  You are greatly appreciated. 😀

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On 11/2/2018 at 4:00 PM, gg2008 said:

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. 

@gg2008 Does this mean the judge will not change the date of their motion for summary disposition (MSD) hearing? That he will allow plaintiff to file an amended motion? 

1. When is the MSD hearing date?

2. You have not submitted your opposition response to their MSD, correct? I would urge you not leave their MSD unopposed and to file your opposition response by the deadline.

3. I know you're planning on filing your MTC arb. Were you planning on having that heard on the same date as the MSD? You need to follow the rules of civil procedure to make certain you don't lose out on a technicality. Your motion needs a hearing scheduled on the court calendar. That's your responsibility. 

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14 minutes ago, Brotherskeeper said:

@gg2008 Does this mean the judge will not change the date of their motion for summary disposition (MSD) hearing? That he will allow plaintiff to file an amended motion? 

1. When is the MSD hearing date?

December 14

2. You have not submitted your opposition response to their MSD, correct? I would urge you not leave their MSD unopposed and to file your opposition response by the deadline.

my response to the MSD is the Motion to compel

 

14 minutes ago, Brotherskeeper said:

3. I know you're planning on filing your MTC arb. Were you planning on having that heard on the same date as the MSD? You need to follow the rules of civil procedure to make certain you don't lose out on a technicality. Your motion needs a hearing scheduled on the court calendar. That's your responsibility. 

Yes. It will be heard on the same day as the MSD. The procedure is to have all motions in 9 days before the hearing date. 

 

Thank you so  much for all of your help. I wish I could send you Guys flowers or something.

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On 10/18/2018 at 11:05 AM, Brotherskeeper said:

 

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.

 

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15 minutes ago, Brotherskeeper said:

 

Ok. I misunderstood. It’s 9 days for a response. It’s fine though. The motion is ready and will be filed by the 20th. You guys have already edited it. We just waiting on fisthard to advise us on the motion to change venue. But the arbitration is what we want. I will not motion to change the venue. I have been conflicted on whether I should do both.  

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34 minutes ago, gg2008 said:

The motion is ready and will be filed by the 20th. You guys have already edited it

I guess I missed this draft of your motion to compel arb. I urge you to post what you have before you file it. 

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45 minutes ago, gg2008 said:

I will not motion to change the venue. I have been conflicted on whether I should do both.  

I think Fisthardcheese's suggestion to tackle this issue in the JAMS demand claim paperwork makes a lot of sense. IANAL. Filing a motion to change venue under your circumstances (moving after suit is filed in proper venue) could expose you to the costs of the transfer. See:

Rule 2.222 Change of Venue; Venue Proper

"(B) Motion Required. If the venue of the action is proper, the court may not change the venue on its own initiative, but may do so only on motion of a party.

# # # 

(D) Filing and Jury Fees After Change of Venue.

(1) At or before the time the order changing venue is entered, the party that moved for change of venue shall tender a negotiable instrument in the amount of the applicable filing fee, payable to the court to which the case is to be transferred. The transferring court shall send the negotiable instrument with the case documents to the transferee court."

 

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Here is the draft

 

    1. In June of  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 GE Capitial Bank., and seeks to collect an account stated balance. The documents referred to in the Complaint were not attached as exhibits in complete form.

 

    2. Defendant obtained a copy of the applicable 2013 GE Capital Bank, N.A. Cardholder Agreement, (the "Agreement"), from the Consumer Financial Protection Bureau (CFPB) database at https://www.consumerfinance.gov/credit-cards/agreements/. Under Section 204 of the Credit CARD Act of 2009, GE Capital Bank, N.A. 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 gg2008 filed and served herewith as Exhibit A, and incorporated herein by reference.

 

    3. Defendant sent a letter via USPS certified mail to Plaintiff's attorney, delivered on November 10, 2018, electing arbitration with Judicial Arbitration and Mediation Services, Inc. (JAMS) and requesting dismissal or stay of this case pending arbitration. True copies of the written election notice and the signed USPS return receipt are attached to the Affidavit of gg2008 filed and served as Exhibit B. Defendant received no response from Plaintiff to her arbitration election notice prior to the filing of this Motion.

 

    4. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Agreement (Exhibit A), pursuant to MCR 2.116(C)(7), and 2.116(D)(2).

 

    5. The parties are bound by the Cardholder Agreement. The Agreement states, "Either you or we may, without the other's consent, require that any controversy or dispute between you and us (all of which are called “Claims”) be submitted to mandatory, binding arbitration. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the State law governing the Card Agreement." ( Exhibit A, page 9  paragraph 5)

 

     6. 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.”

 

    7. 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 arbitrary 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.

 

    8. The Arbitration Agreement further states, in pertinent part, under Claims Covered:, "Any questions about what Claims are subject to arbitration shall be resolved by interpreting this Arbitration Agreement in the broadest way the law will allow it to be enforced." "Claims subject to arbitration include not only Claims made directly by you..." but also include, "Claims that relate directly to us, a parent company, affiliated company, and any predecessors and successors (and employees, officers, and directors of all of these entities)." (Exhibit A, page 6 paragraph 5)
 

    9. The Arbitration Agreement also states in "Enforcement, Finality: You or we may bring an action, including a summary or expedited motion, to compel arbitration of Claims subject to arbitration, or to stay the litigation of any Claims pending arbitration, in any court having jurisdiction. Such action may be brought at any time, even if any such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered." (Exhibit A,)

 

    10. 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 D)

 

    11. The attorney for Plaintiff was contacted for concurrence with the relief sought in this Motion. A copy of the Proposed Order that accompanies this Motion was served by certified mail November 10, 2018, and by USPS first class mail.  Defendant received no response from Plaintiff. True copies of the transmission record are attached to the Affidavit of gg2008 filed and served as Exhibit C.

 

    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.

 

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18 minutes ago, Brotherskeeper said:

I think Fisthardcheese's suggestion to tackle this issue in the JAMS demand claim paperwork makes a lot of sense. IANAL. Filing a motion to change venue under your circumstances (moving after suit is filed in proper venue) could expose you to the costs of the transfer. See:

Rule 2.222 Change of Venue; Venue Proper

"(B) Motion Required. If the venue of the action is proper, the court may not change the venue on its own initiative, but may do so only on motion of a party.

# # # 

(D) Filing and Jury Fees After Change of Venue.

(1) At or before the time the order changing venue is entered, the party that moved for change of venue shall tender a negotiable instrument in the amount of the applicable filing fee, payable to the court to which the case is to be transferred. The transferring court shall send the negotiable instrument with the case documents to the transferee court."

 

I have already submitted JAMS paperwork via Linda7's post. The agreement also states I must initiate arbitration. I will bring up the location issue then.

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1 hour ago, gg2008 said:

I have already submitted JAMS paperwork via Linda7's post. The agreement also states I must initiate arbitration. I will bring up the location issue then.

There is no location issue in regards to JAMS.

I also think the MTC is way too wordy.  I do not like including where you obtained the card agreement from.  I would just state that the card agreement that is the basis of Plaintiff's allegations contains an arbitration clause and that's all that needs to be said about it UNLESS they attempt to challenge the agreement in their response.

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