Tuesday, December 27, 2011

FYI: Mich Court of Appeals Rules in Favor of Creditor in Challenge to Affidavit and Standing

The Michigan Court of Appeals recently held that the lower court properly
considered documentary evidence to support summary disposition in a
creditor's collection action, where such evidence was "plausibly
admissible," and where the debtor failed to present evidence establishing
a question of fact on any element of the creditor's claim. A copy of the
opinion is attached.

Defendant debtor failed to make the required payments on her credit card
account, and plaintiff bank eventually sued the debtor for breach of the
credit card agreement. Appearing pro se, the debtor denied the existence
of a credit agreement with the bank, and denied that she owed the bank any
money. The debtor also filed a counterclaim, asserting that the bank had
committed fraud by presenting a "false document" (i.e., the complaint) to
the court.

The bank moved for summary disposition and, in support of its motion,
submitted into evidence copies of the credit card agreement, the debtor's
monthly credit card statements, checks the debtor had sent as payment on
the account, as well as an affidavit. The bank also asserted that the
debtor's fraud claim should be dismissed for failure to plead it with
sufficient particularity.

In response, the debtor argued in part that because the documents the bank
submitted to the trial court as evidence were unsigned, they could not be
used to support its motion. The debtor further argued that the bank
lacked standing because it was not registered to do business in Michigan,
had unclean hands, and violated federal law by seeking to collect the
debt. The debtor also asserted that the bank's supporting affidavit was

The trial court granted the bank's motion for summary disposition. The
debtor appealed, arguing that the evidence that the bank had submitted to
support its motion was inadmissible. The appellate court affirmed.

The Court of Appeals first noted that a motion for summary disposition
requires the submission of supporting documentation such as affidavits,
depositions, admissions or other documentary evidence, and that the trial
court may only consider such submissions to the extent that they "would be
admissible as evidence." See MCR 2.116(G)(3),(6). The Court also
observed that the documentation submitted to support a motion for summary
disposition need not be in admissible form, but need only be admissible in
substance, and that if a "plausible basis" exists for the admission of the
supporting material, the trial court may properly consider the

While pointing out that the affidavit submitted by the bank may not have
established a proper foundation for admitting the documentation into
evidence, the appellate court noted that the documents submitted were
"nevertheless plausibly admissible as records of regularly conducted
activity." The Court then determined that the documentation demonstrated
that the debtor had among other things opened a credit card account with
the bank, used the account to make purchases and balance transfers, and,
after making a number of payments on the account, breached the agreement
by failing to make additional required payments.

The Court determined that the documentary evidence was sufficient to
establish the existence of a lending agreement between the parties, the
breach of that agreement, and the amount of the bank's damages.
Accordingly, the Court ruled that the bank had properly supported its
motion, and that the debtor therefore had to respond with evidence that
raised a question of fact as to at least one of the element's of the
bank's breach of contract claim, but failed to do so.

The Court also rejected the debtor's arguments that the bank lacked
standing to sue, failed to prove it was assigned the note, and that its
collection efforts violated federal law, because the debtor had failed to
provide "meaningful citation to the law or record evidence," and because,
in the Court's view, such allegations were meritless in any event.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Email: RWutscher@mtwllp.com

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