Tuesday, November 22, 2011

Answering summarry disposition by citing the complaint is not enough.

The court held in this case arising from the servicing of and eventual foreclosure on the plaintiff's home, that the trial court properly did not consider the allegations in the plaintiff's verified complaint as equivalent to an affidavit or other evidence submitted in opposition to the defendant's motion for summary disposition. Thus, the court affirmed the trial court's grant of summary disposition to the defendants. Plaintiff contended on appeal that her verified complaint was sufficient, in lieu of an affidavit, to withstand a motion for summary disposition under MCR 2.116(C)(10). The court disagreed where MCR 2.116(G)(4) specifically precludes plaintiff, as the non-moving party, from simply relying on the allegations set forth in her complaint in opposition to defendants' properly supported motion for summary disposition. She could simply not rest solely on the complaint where "affidavits, pleadings, depositions, admissions, or other documentary evidence must be offered to survive summary disposition." The court held that the plaintiff's verification of her complaint did not meet the criteria of MCR 2.119(B)(1). Her complaint did not allege facts solely based on her own personal knowledge, as opposed to those matters stated upon her information and belief, Further, her verification did not specify those matters upon which she could competently testify. As the court observed in Coblentz, "[t]he verified pleadings . . . contain no statements sufficient to satisfy the criteria applicable to affidavits filed in support of a motion." Thus, she failed to meet her burden of establishing a genuine issue of material fact precluding summary disposition. Unlike Baker, plaintiff failed to submit any affidavit at all in opposition to defendants' motion. She could not "rest on the mere allegations" of her complaint in lieu of submitting any affidavit at all.

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