FIFTH THIRD BANK V SIDNEY BRADLEY
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STATE OF MICHIGAN
COURT OF APPEALS
FIFTH THIRD BANK,
UNPUBLISHED
October 5, 2010
Plaintiff-Appellee,
v
No. 293097
Wayne Circuit Court
LC No. 08-018750-CK
SIDNEY BRADLEY,
Defendant-Appellant.
Before: GLEICHER, P.J., and ZAHRA and K. F. KELLY, JJ.
PER CURIAM.
In this matter concerning an allegedly unpaid debt, defendant, Sidney Bradley the debtor,
appeals as of right from the trial court’s order granting plaintiff, Fifth Third Bank, summary
disposition pursuant to MCR 2.116(C)(10). The trial court entered a judgment in plaintiff’s
favor for $98,969.70. We reverse.1
Defendant contends that the trial court erred by granting plaintiff’s motion for summary
disposition because plaintiff did not meet its initial burden of providing evidence in support of its
motion. We agree. We review a trial court’s decision on a motion for summary disposition de
novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition
may be granted under MCR 2.116(C)(10) when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Id. at 120. When a party moves for
summary disposition under this rule, the moving party must specifically identify the matters that
it believes have no disputed factual issues, MCR 2.116(G)(4), and has the initial burden of
presenting affidavits, depositions, admissions, or other documentary evidence in support of the
motion. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996); MCR
2.116(G)(5). Once the moving party has met this burden, the burden shifts to the opposing party
to show that a genuine issue of material fact exists. Quinto, 451 Mich at 362.
Here, plaintiff moved for summary disposition on the grounds that defendant allegedly
entered into a security agreement and promissory note with plaintiff and subsequently defaulted
on the note by failing to make the required payments. In support of its motion, plaintiff
1
This appeal has been decided without oral argument pursuant to MCR 7.214(E).
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submitted a copy of an installment loan application signed by defendant, a copy of the note for
$147,754, and a single affidavit in which the affiant averred that the principal amount owing on
the note was $98,680.21. The affidavit further indicated that records of defendant’s account
were attached to the affidavit, but no such records were attached. Significantly, plaintiff failed to
provide any evidence or factual support showing that defendant had stopped paying the debt or
whether any collateral had been seized by plaintiff and any sums received from the possible sale
of any such collateral.
Given the foregoing, we conclude that plaintiff did not present any factual support for its
contention that defendant had defaulted in his payments. The credit application and note provide
factual support for plaintiff’s claim that defendant entered into a financing agreement, but they
do not show that defendant defaulted in his payments. The affidavit also does not establish that
point. The affidavit merely states the account balance. Although the affidavit also refers to
attached records of defendant’s account, no records were attached. Because the evidence
submitted by plaintiff failed to show that defendant was in default, plaintiff did not meet its
initial burden of providing factual support for its motion and the trial court erred by granting
plaintiff’s motion for summary disposition. Cf. Oliver v Smith, 269 Mich App 560, 566-567;
715 NW2d 314 (2006). Because we have concluded that the trial court’s order was erroneous
and must be reversed, we need not consider the substance of defendant’s argument that reversal
is also required based on the trial court’s failure to address defendant’s claim that plaintiff failed
to timely file a response to defendant’s answer and affirmative defenses, to which defendant had
demanded a reply. See MCR 2.110(B)(5). However, on remand, the trial court must determine
whether plaintiff will be permitted to file a late response to defendant’s affirmative defenses in
accordance with MCR 2.108(E). And, assuming the trial court allows plaintiff’s late response, it
shall permit the parties additional time for discovery as it sees fit.2
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Brian K. Zahra
/s/ Kirsten Frank Kelly
2
If the trial court denies plaintiff’s request to permit its late response denying defendant’s
affirmative defenses, then plaintiff would be deemed to have admitted the affirmative defenses.
MCR 2.111(E)(1). Consequently, plaintiff’s suit would be rendered moot and judgment in
defendant’s favor would be appropriate.
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