UNIFUND CCR PARTNERS V NISHAWN RILEY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
UNIFUND CCR PARTNERS,
UNPUBLISHED
February 18, 2010
Plaintiff-Appellee,
v
No. 287599
Wayne Circuit Court
LC No. 07-732916-AV
NISHAWN RILEY,
Defendant-Appellant.
Before: Sawyer, P.J., and Saad and Shapiro, JJ.
PER CURIAM.
In this action to recover a credit card debt, defendant, proceeding in propria persona,
appeals by delayed leave granted from a circuit court order affirming a district court’s judgment
for plaintiff after the court granted plaintiff’s motion for summary disposition pursuant to MCR
2.116(C)(9) and (10). We affirm in part, vacate in part, reverse in part, and remand for
additional proceedings consistent with this opinion.
Plaintiff’s complaint, filed in April 2007, alleges that defendant is liable for an unpaid
credit card debt on a credit card issued by Citibank, which allegedly assigned the debt to
plaintiff. On May 29, 2007, defendant filed a response to the complaint labeled “Response to
Introduction” in which she denied liability for the debt. Later, on September 7, 2007, defendant
filed an “Answer and Cross Complaint” in which she again denied liability for the debt and
sought recovery of $15,000 from plaintiff for filing a false complaint. Defendant subsequently
filed an amended counterclaim on October 24, 2007. The district court granted plaintiff’s motion
to strike defendant’s counterclaim and amended counterclaim on the ground that neither was
filed in conformity with the court rules, granted plaintiff’s motion for summary disposition
pursuant to MCR 2.116(C)(9) and (10), and awarded plaintiff a judgment in the amount of
$8,920.48. Defendant appealed that judgment to the circuit court, which affirmed the district
court’s decisions.
I. Plaintiff’s Motion to Strike
Defendant first argues that the district court erred in granting plaintiff’s motion to strike
defendant’s counterclaim and amended counterclaim. We disagree. MCR 2.115(B) allows a
court to strike a pleading that has not been filed in accordance with the court rules. “This Court
reviews a trial court’s decision regarding a motion to strike a pleading pursuant to MCR 2.115
-1-
for an abuse of discretion.” Belle Isle Grill Corp v Detroit, 256 Mich App 463, 469; 666 NW2d
271 (2003).
MCR 2.203(E) provides that “a counterclaim or a cross-claim must be filed with the
answer or filed as an amendment in the manner provided by MCR 2.118.” Under MCR
2.118(A)(1) and (2), defendant was permitted to amend her answer and file a counterclaim as a
matter of course within 14 days after serving her answer, and after that time could file a
counterclaim only by leave of the court or with plaintiff’s written consent. It is undisputed that
defendant did not file her counterclaim or amended counterclaim within 14 days after she served
her original response to plaintiff’s complaint, and that defendant did not obtain either leave of the
court or plaintiff’s written consent to file either pleading. Thus, the district court properly
concluded that neither pleading was filed in accordance with the court rules.
Defendant’s reliance on the relation-back rule in MCR 2.118(D) to argue that the
pleadings were timely filed is misplaced. “The doctrine of relation back was invented by the
courts to associate the amended matter with the original pleading so that it would not be barred
by a statute of limitation.” Smith v Henry Ford Hosp, 219 Mich App 555, 558; 557 NW2d 154
(1996). Although the relation-back rule would allow a properly amended claim or defense to
relate back to the date of the original pleading, the rule does not govern the time limits for filing
an amended pleading, or eliminate the necessity of obtaining leave of the court if an amended
pleading is not filed as a matter of course within the period specified in MCR 2.118(A)(1).
Because defendant never filed a proper counterclaim or amended counterclaim, the relation-back
rule does not apply.
Defendant also argues for the first time on appeal that plaintiff ’s motion to strike was not
timely brought under MCR 2.108(B). Because defendant did not raise this issue below, it is not
preserved and this Court could decline to consider it. ISB Sales Co v Dave’s Cakes, 258 Mich
App 520, 532-533; 672 NW2d 181 (2003). Even if this issue is considered, however, it lacks
merit. This Court rejected a similar argument in Belle Isle Grill, 256 Mich App at 469-471, in
which it held that MCR 2.108(B) should not be interpreted as a limitation on a motion to strike
under MCR 2.115(B), and that such a motion may be brought at any reasonable time. In this
case, there is no basis for concluding that plaintiff ’s motion to strike was not filed within a
reasonable time.
Although defendant also argues that her counterclaim properly stated a claim for fraud,
the district court did not dismiss the counterclaim or amended counterclaim on the merits, but
rather struck those pleadings because they were not filed in accordance with MCR 2.118(A). For
the reasons indicated, the district court did not abuse its discretion in striking both pleadings.
II. Plaintiff’s Motion for Summary Disposition
Defendant next argues that the district court erred in granting plaintiff’s motion for
summary disposition. We agree. The district court granted plaintiff ’s motion under both MCR
2.116(C)(9) and (10). However, a motion under MCR 2.116(C)(9) is limited to the pleadings
alone, Slater v Ann Arbor Pub Schools Bd of Ed, 250 Mich App 419, 425-426; 648 NW2d 205
(2002), and the district court here considered evidence beyond the pleadings when granting
plaintiff’s motion. Therefore, we confine our review to MCR 2.116(C)(10).
-2-
A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court must
consider the pleadings, affidavits, depositions, admissions, and other documentary evidence.
MCR 2.116(G)(5). The party responding to the motion must present evidentiary proofs showing
that there is a genuine issue of material fact for trial. If such proofs are not presented, summary
disposition is proper. Smith v Globe Life Ins Co, 460 Mich 446, 455-456 n 2; 597 NW2d 28
(1999). Summary disposition is properly granted if, except as to the amount of damages, there is
no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995).
Initially, contrary to what defendant argues, MCR 2.113(F)(1) did not require plaintiff to
attach a copy of a signed credit card agreement to its complaint. As the circuit court noted in its
decision, MCL 445.862(a) provides:
A retail charge agreement shall be in writing and signed by the buyer or
the authorized representative of the buyer. A retail charge agreement shall be
considered signed and accepted by the buyer if after a request for a retail charge
account the agreement or application for a retail charge account is in fact signed
by the buyer or if the retail charge account is used by the buyer or by another
person authorized by the buyer. . . . [Emphasis added.]
In this case, plaintiff ’s claim was premised on the existence of a retail charge agreement that
arose from defendant’s use of the credit card. Thus, a signed agreement was not required.
Moreover, plaintiff attached a copy of the “Citibank Card Agreement” to its complaint, thereby
satisfying MCR 2.113(F)(1).
Turning to the merits of plaintiff’s claim, we first note that plaintiff abandoned its breach
of contract theory and instead proceeded only under a theory of account stated. As explained in
Echelon Homes, LLC v Carter Lumber Co, 261 Mich App 424, 429-430; 683 NW2d 171 (2004),
rev’d on other grounds 472 Mich 192 (2005):
An account stated consists of a “‘balance struck between the parties on a
settlement . . . .’” Keywell & Rosenfeld v Bithell, 254 Mich App 300, 331; 657
NW2d 759 (2002), quoting Watkins v Ford, 69 Mich 357, 361; 37 NW 300
(1888). “‘[W]here a plaintiff is able to show that the mutual dealings which have
occurred between two parties have been adjusted, settled, and a balance struck,
the law implies a promise to pay that balance.’” Id. In Kaunitz v Wheeler, 344
Mich 181, 185; 73 NW2d 263 (1955), quoting from White v Campbell, 25 Mich
463, 468 (1872), the Michigan Supreme Court explained as follows:
“The conversion of an open account into an account stated, is an operation
by which the parties assent to the 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. That it has taken place, may appear by evidence of an
express understanding, or of words and acts, and the necessary and proper
inferences from them. When accomplished, it does not necessarily exclude all
inquiry into the rectitude of the account.” [Emphasis in original.]
-3-
In Hawley v Professional Credit Bureau, Inc, 345 Mich 500, 506-507; 76 NW2d 835
(1956), our Supreme Court, quoting White v Campbell, 25 Mich 463, 468 (1872), observed:
“The conversion of an open account into an account stated, is an operation
by which the parties assent to a sum as the correct balance due from one to the
other. . . . The parties may still impeach it for fraud or mistake. But so long as it
is not impeached, the agreed statement serves in place of the original account, as
the foundation of an action.” [Emphasis in original.]
“Accounts stated may be attacked upon the ground of fraud or mistake, but the burden in such
cases is upon the attacking party.” Wilson v White, 223 Mich 497, 509-510; 194 NW 593
(1923).
In Keywell & Rosenfeld, 254 Mich App at 331, this Court followed Corey v Jaroch, 229
Mich 313, 315; 200 NW 957 (1924), for the rule that an account stated may be established where
the debtor has expressly accepted the bills by paying them or failed to object to them within a
reasonable time. In Corey, the Court held that “[w]hen an account is stated in writing by the
creditor and accepted as correct by the debtor, either by payments thereon without demur or by
failure within a reasonable time to question the state of the account as presented, it becomes an
account stated . . . .” Thus, by making payments on an account, a debtor admits to the
correctness of the account or debt. Id. at 314-315.
In this case, the submitted evidence shows that defendant originally had an open account
based on the credit card issued by Citibank. Plaintiff also presented evidence that payments were
made on the account, thereby establishing that the debt was owed. However, this is insufficient
to transform the open account into an account stated without evidence that defendant was the one
who made the payments. The district court’s assertion that people who fraudulently obtain credit
in someone else’s name do not make payments notwithstanding, there is no evidence that
defendant made the asserted payments. Furthermore, the fact that defendant did not question the
accuracy of the charges in insufficient to transform the open account into an account stated
absent proof that defendant was aware of the account and the charges being made thereon.
Defendant submitted evidence that indicated her lack of awareness of the account and her dispute
of its validity by submitting dispute inquiry through a credit reporting agency. All of these
actions indicate someone who disputes, rather than assents, to a debt. Accordingly, we conclude
that there is no evidence at this time that transformed the open account into an account stated.
Obviously, if after further discovery it is determined that defendant did, in fact, make those
payments, then plaintiff may be entitled to summary disposition on this claim. However, on the
record as it existed at the time of the district court’s grant of summary disposition, there was no
account stated.
Plaintiff supported its motion for summary disposition by submitting an affidavit that (1)
set forth the debt allegedly owed by defendant to Citibank, and (2) indicated that the debt was
assigned to plaintiff. Plaintiff also presented copies of the statements issued on the account,
which showed that defendant’s former address was the address used for the account. The
statements showed that the account was used and that payments were made on the account in
2001 and 2002. Because plaintiff presented affidavits and documentary evidence in support of
its motion, defendant had the burden of responding to plaintiff’s motion with documentary
-4-
evidence or other evidentiary proofs showing that there was a genuine issue of material fact for
trial. Smith, 460 Mich at 455-456 n 2.
Defendant claimed that she was the victim of identity theft and submitted her credit
report indicating that she had disputed the debt and that it had been deleted from her credit report
pursuant to her dispute. The report also indicated that defendant had placed a fraud alert on the
account, which supported her assertion that she had been the victim of fraud. Although the fraud
alert and deletion of the debt from her credit report did not definitively prove that this account
was fraudulent, the inference created by the evidence, taken in the light most favorable to
defendant, created a fact question as to whether she did, in fact, open and use or authorize the use
of this account. Accordingly, there were outstanding questions of fact which precluded summary
disposition.
Accordingly, the district court erred in granting plaintiff’s motion for summary
disposition pursuant to MCR 2.116(C)(10) and the circuit court erred in affirming the district
court’s order.
III. Competency of Plaintiff’s Evidence
In her final issue, defendant challenges the competency of the evidence on which plaintiff
relied in support of its motion for summary disposition. Affidavits and other documentary
evidence submitted in support of a motion under MCR 2.116(C)(10) may “only be considered to
the extent that the content or substance would be admissible as evidence.” MCR 2.116(G)(6).
Contrary to what defendant argues, the affidavit submitted by plaintiff was signed and
notarized. Further, as explained previously, plaintiff was not required to produce a signed credit
card agreement. Rather, use of the credit card alone may be sufficient to establish acceptance of
the terms of the retail charge agreement. However, because defendant disputes that she used the
card, the mere fact that the account was used is insufficient. Defendant can only be deemed to
have accepted the terms of use if she or someone she authorized used the card. Therefore,
plaintiff must show defendant used, authorized the use of,1 or paid on the account to show that
she accepted the terms of the agreement. Absent such evidence, plaintiff has not shown
defendant’s acceptance of the terms of the account through use and a signed agreement will be
necessary.
1
We note that in her original answer, defendant claimed that “[t]his debt belongs to Bukeka
Riley” and that “the card holder [is] Bukeka Riley.” It is unclear the relationship, if any,
between defendant and Bukeka Riley or how defendant came to know who had opened this
account. It is certainly possible that defendant agreed to permit someone to use her credit to
obtain the card. However, it is also possible that defendant found out this person had
fraudulently obtained credit in defendant’s name and did not authorize it. Given that these facts
give rise to at least two possible inferences, one of which is favorable to defendant, there is
clearly a material issue of fact that precluded summary disposition based on the record at this
time.
-5-
Defendant argues that the district court calculated the interest at a rate higher than that set
forth in the agreement. We disagree. The district court calculated the amount owed for interest
in accordance with the interest rates set forth on the billing statements and defendant has not
shown that the court’s reliance on those specified rates was improper.
Defendant also argues that plaintiff failed to show that it legally acquired defendant’s
account from Citibank. We agree. Although plaintiff submitted a copy of a bill of sale executed
by Citibank, it did not provide the portion of the assignment that indicated that this specific
account was one of the accounts being assigned. Because the assignment occurred through the
contract, absent evidence of the contract showing the specific assignment, the affidavit
containing plaintiff’s employee’s bare assertion of the assignment is insufficient to establish
factual support for plaintiff’s claim that it acquired defendant’s account by assignment.
However, plaintiff did present evidence that defendant was notified by letter of the assignment.
Thus, if on remand plaintiff submits sufficient proof of the assignment, we conclude that plaintiff
has submitted sufficient proof of notice of the assignment to defendant.
We reject defendant’s argument that plaintiff was required to present the original monthly
statements, not copies. Documentary evidence submitted in support of or opposition to a motion
for summary disposition may be considered to the extent that its content or substance would be
admissible. MCR 2.116(G)(6). Thus, original documents are not required. Moreover, as
plaintiff argued in the district court, the original billing statements were mailed out, allegedly to
defendant, and thus were not in the possession of Citibank or plaintiff. Given defendant’s
assertion that she never received the statements, the only statements that could be provided
would be copies. Accordingly, there is no error.
Finally, defendant argues that plaintiff failed to obtain the billing statements from the
original creditor, Citibank, which defendant maintains is a violation of federal law.2 The record
does not support this claim. Plaintiff’s affidavit indicates that the billing records for defendant’s
account were obtained from Citibank.
IV. Conclusion
We affirm the district court’s granting plaintiff’s motion to strike defendant’s
counterclaim and amended counterclaim, but vacate the circuit court’s affirmance of the district
court’s grant of summary disposition, reverse the district court’s grant of summary disposition,
and remand for additional proceedings consistent with this opinion.
/s/ David H. Sawyer
/s/ Henry William Saad
/s/ Douglas B. Shapiro
2
Defendant appears to rely on the Fair Debt Collection Practices Act, 15 USC 1692 et seq.
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.