                           STATE OF MICHIGAN

                            COURT OF APPEALS



CRYSTAL HOPKINS and CHRISTINA                                        UNPUBLISHED
HOPKINS,                                                             October 20, 2016

               Plaintiffs-Appellants,

v                                                                    No. 327741
                                                                     Oakland Circuit Court
DENEWETH, DUGAN & PARFITT, P.C.,                                     LC No. 2014-143232-CZ

               Defendant-Appellee.


Before: GADOLA, P.J., and BORRELLO and STEPHENS, JJ.

PER CURIAM.

        In this action against a debt collector, plaintiffs, Crystal and Christina Hopkins, appeal as
of right the circuit court’s order granting defendant, Deneweth, Dugan & Parfitt, P.C., summary
disposition under MCR 2.116(C)(10), on the basis that defendant verified the debt consistent
with the Fair Debt Collection Practices Act (FDCPA), 15 USC 1692 et seq. We affirm.1

                                 I. FACTUAL BACKGROUND

       In May 2009, plaintiffs entered into a lease agreement with Homestead Construction
Properties, LLC (Homestead), for certain residential property located in Ferndale, Michigan.
Under the terms of the lease, plaintiffs agreed to remit monthly payments of $1,300 by the first
day of each month. Plaintiffs failed to make several required payments, and ultimately vacated
the premises in September 2013. Shortly thereafter, defendant, representing Homestead, sent


1
 On appeal, defendant suggests that this Court lacks jurisdiction over Christina’s appeal because
she did not file her claim of appeal within 21 days of the circuit court’s order granting
defendant’s motion for summary disposition and she did not properly join Crystal’s timely
motion for reconsideration, which would have extended the time in which she could file an
appeal as of right under MCR 7.204(A)(1)(b). We disagree. Under MCR 7.204(A)(1)(b), it is
immaterial whether Christina filed a motion for reconsideration or otherwise joined Crystal’s
motion because the language of the court rule allows for an appeal as of right within 21 days
after the entry of an order deciding such a motion, without limiting or qualifying that right on the
basis of who filed the motion.


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plaintiffs a letter indicating Homestead’s intent to apply plaintiffs’ security deposit against the
unpaid rent. The letter also asked plaintiffs to pay the balance of rent due, which was $10,074.29
after subtracting the security deposit. Defendant provided an “accounting” as part of the letter,
in the form of a spreadsheet reflecting the total amount of rent due under the lease, the payments
plaintiffs made, detailing those payments by check number and date, and the deficiency owed.
Defendant indicated that if plaintiffs did not pay the outstanding balance or respond by letter in
seven days it would file a lawsuit to collect the debt on Homestead’s behalf.

        Plaintiffs, by written correspondence, disputed the debt within the seven-day period.
Defendant then sent plaintiffs a second letter in October 2013. Defendant again indicated its
intent to file a lawsuit to collect the unpaid rent and included a second itemized accounting that
showed “how payments were applied to [plaintiffs’] monthly rent obligations . . . [as well as] a
copy of all checks (including those returned for insufficient funds).” Subsequently, defendant,
on behalf of Homestead, initiated a debt collection action in the 43rd District Court. After a trial,
the district court entered a judgment in Homestead’s favor.

        Eight days after the district court entered its judgment, plaintiffs filed the instant action
against defendant. In their complaint, plaintiffs alleged, in part, that defendant (1) failed to
verify the debt by providing the months and dates of missed payments in violation of 15 USC
1692g(b) of the FDCPA and, (2) in so failing to verify the debt, made misleading and inaccurate
statements in violation of MCL 445.252(e) of Michigan’s Regulation of Collection Practices Act
(MRCPA), MCL 445.251 et seq. Defendant moved for summary disposition, asserting that it
properly verified the debt by providing plaintiffs with an accounting on two occasions.
Therefore, defendant argued, it did not violate the FDCPA or the MRCPA. Following a hearing,
the circuit court agreed and granted defendant’s motion under MCR 2.116(C)(10).

                                  II. STANDARD OF REVIEW

        We review de novo a circuit court’s decision on a motion for summary disposition under
MCR 2.116(C)(10). Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “In
evaluating a motion for summary disposition brought under this subsection, a trial court
considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” Id. at
120. Such a motion is properly granted when “there is no genuine issue regarding any material
fact and the moving party is entitled to judgment as a matter of law.” Greene v AP Prod, Ltd,
475 Mich 502, 507; 717 NW2d 855 (2006) (quotation marks and citations omitted). A genuine
issue of material fact exists when the record leaves open an issue upon which reasonable minds
could differ. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013).

                                     III. APPLICABLE LAW

      Plaintiffs contend that defendant violated the FDCPA’s verification requirement under 15
USC 1692g(b), which provides in relevant part the following:

              If the consumer notifies the debt collector in writing within the thirty-day
       period described in [15 USC 1692g(a)] that the debt, or any portion thereof, is
       disputed, . . . the debt collector shall cease collection of the debt, or any disputed

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       portion thereof, until the debt collector obtains verification of the debt . . . and a
       copy of such verification . . . is mailed to the consumer by the debt collector.
       Collection activities and communications that do not otherwise violate this
       subchapter may continue during the 30-day period referred to in [15 USC
       1692g(a)] unless the consumer has notified the debt collector in writing that the
       debt, or any portion of the debt, is disputed . . . .

Plaintiffs also claim that defendant violated MCL 445.252(e) of the MRCPA, which is
predicated on their claim that defendant violated the FDCPA’s verification requirement.2 For
purposes of 15 USC 1692g(b), to determine whether a debt collector sufficiently verified a debt,
courts consider whether the

       verification . . . enable[s] the consumer to “sufficiently dispute the payment
       obligation.” Although the answer to that question depends on the facts of a
       particular situation, the cases reflect that an itemized accounting detailing the
       transactions in an account that have led to the debt is often the best means of
       accomplishing that objective. Intuitively, such a practice makes good sense. In
       fact, it would likely lead to faster resolutions of disputes with those consumers
       who act in good faith, because it will either show a valid debt that a consumer
       acting in good faith will actually pay, uncover an error in the record of the debt
       leading to the cancellation of the debt, or reveal the underlying dispute between
       the parties that can then be resolved. [Haddad v Alexander, Zelmanski, Danner &
       Fioritto, PLLC, 758 F3d 777, 785 (CA 6, 2014) (emphasis added).]

                                         IV. ANALYSIS

        On appeal, plaintiffs argue that the circuit court erred by granting defendant’s motion for
summary disposition because a genuine issue of material fact existed regarding whether
defendant adequately verified the debt. In support, plaintiffs assert that defendant waived the
defense that it verified the debt, verification was outside the scope of defendant’s motion for
summary disposition, and defendant otherwise conceded that it did not verify the debt. Plaintiffs
alternatively contend that a genuine issue of material fact exists regarding the accuracy of the
accountings provided by defendant and that the lower court engaged in improper fact-finding,
thereby depriving plaintiffs of their right to a jury trial.

                                          A. WAIVER

        Plaintiffs argue that defendant waived its defense that it verified the debt by failing to
assert the defense in its first responsive pleading. Generally, a defendant must assert a defense
“in the responsive pleading or by motion as provided by” the Michigan Court Rules or the
defense is waived. MCR 2.111(F)(2). A “defense” is “ ‘[t]hat which is offered and alleged by


2
  MCL 445.252(e) provides that a regulated person shall not “[m]ak[e] an inaccurate, misleading,
untrue, or deceptive statement or claim in a communication to collect a debt or conceal[] or not
reveal[] the purpose of a communication when it is made in connection with collecting a debt.”


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the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should
not recover or establish what he seeks [and which is] put forward to diminish plaintiff’s cause of
action or to defeat recovery.’ ” Epps v 4 Quarters Restoration LLC, 498 Mich 518, 530; 872
NW2d 412 (2015), quoting Black’s Law Dictionary (6th ed). In its answer to plaintiffs’
complaint, defendant repeatedly denied plaintiffs’ allegation that it failed to verify the debt in
violation of 15 USC 1692g. Although defendant never explicitly stated that it verified the debt
before beginning the collection action, it expressly denied plaintiffs’ assertions to the contrary,
explaining that it accounted for all of the payments made by plaintiffs and provided plaintiffs
proof of that accounting. Michigan is a notice-pleading state and all that is required is that a
defendant set forth statements reasonably necessary to inform a plaintiff of the nature of its
defenses. See Johnson v QFD, Inc, 292 Mich App 359, 368; 807 NW2d 719 (2011). Having
reviewed defendant’s answer, we conclude that plaintiffs were reasonably apprised that
defendant intended to assert that it verified the debt.3

                      B. SCOPE OF SUMMARY DISPOSITION MOTION

        Plaintiffs further argue that the circuit court erred by considering whether defendant
verified the debt because the issue was outside the scope of defendant’s summary disposition
motion and was raised for the first time in defendant’s reply brief. Contrary to plaintiffs’
position, our review of the record reveals that defendant, in fact, addressed the issue of
verification in its motion for summary disposition. Moreover, the parties extensively argued the
issue at the motion hearing at which defendant asserted that it had provided plaintiff with an
itemized accounting of the debt before filing the district court action. Finally, we note that
plaintiffs cite no law supporting the proposition that a circuit court, when deciding a motion for
summary disposition, may not consider arguments made in a reply brief that simply expand upon
statements and assertions raised in the main motion. “It is not sufficient for a party simply to
announce a position or assert an error and then leave it up to this Court to . . . search for authority
either to sustain or reject his position.” Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100
(1998) (quotation marks and citation omitted). Accordingly, the circuit court did not err by
considering the issue of verification.

                               C. CONCESSIONS OF LIABILITY

       We also disagree with plaintiffs’ claim that defendant conceded that it failed to verify the
debt. In support of their argument, plaintiffs quote a passage from paragraph 19 of defendant’s
answer, in which defendant responded to an allegation in the complaint, which stated that


3
  To the extent plaintiffs claim that defendant failed to plead verification as an affirmative
defense, thereby waving the defense under MCR 2.111(F)(3), their argument is also unavailing.
An affirmative defense is “a matter that accepts the plaintiff’s allegation[s] as true and even
admits the establishment of the plaintiff’s prima facie case, but that denies that the plaintiff is
entitled to recover on the claim for some reason not disclosed in the plaintiff’s pleadings.”
Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 312; 503 NW2d 758 (1993). In this
case, defendant’s position that it verified plaintiffs’ debt directly controverts plaintiffs’
entitlement to prevail. Accordingly, defendant was not asserting an affirmative defense.


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“Homestead refused to provide the particular months of any alleged missed rental payment in
violation of 15 USC § 1692g(b).” In response to this allegation, defendant stated the following:

               Denied as untrue statements of fact and/or incorrect and improper
       conclusions of law. By way of further answer, Defendant avers that Plaintiffs
       were informed repeatedly over the course of their tenancy that they were
       delinquent in paying rent, and that, because of their woeful and constant
       delinquency, it was impossible for the landlord to ascertain precisely which
       months to apply rent and which months remained unpaid, so the landlord did its
       best to apply rent received as directed by tenants; however, the landlord
       accounted for every payment actually received, and provided such accounting to
       Plaintiffs numerous times. [Emphasis added.]

Later in its answer, defendant again denied plaintiffs’ allegation that it failed to verify the debt.
Defendant explained that “because of Plaintiffs[’] consistently delinquent rent payments . . . it
was impossible for [Homestead] to pinpoint certain months when rent was not paid because of
the complexity in applying rent received.”

       Having reviewed the complaint and defendant’s answer, it is clear that defendant never
conceded that it could not or did not verify plaintiffs’ debt before beginning its collection efforts.
Rather, defendant specifically denied this allegation. The statements quoted by plaintiffs are
taken out of context. Instead, when reading the answer as a whole, it is evident that defendant
was merely explaining why it could not pinpoint which specific periods of rent were unpaid.

                         D. GENUINE ISSUES OF MATERIAL FACT

         Plaintiffs next argue that summary disposition was improper because there were genuine
issues of material fact regarding the accuracy of defendant’s accounting. We disagree.
Defendant’s initial letter to plaintiffs included an itemized accounting of plaintiffs’ rental
payments, which reflected each payment received and each payment owed. The accounting also
calculated the balance due by subtracting the payments Homestead received from plaintiffs from
the total balance due under the lease. Regarding the payments received, the accounting recorded
the date of each check, the amount of each check, and the check number. Instead of remitting
payment of the debt owed, plaintiffs provided a written response disputing the debt and offering
to settle the matter for the amount of the security deposit; however, plaintiffs did not provide any
documentation suggesting that the accounting was inaccurate. The following month, defendant
sent plaintiffs a second letter that provided an updated accounting, which included a copy of all
the checks Homestead received from plaintiffs, including checks that were returned for
insufficient funds. Aside from reformatting the spreadsheet and providing photocopies of the
checks, there is no apparent inconsistency between the two accountings.

        Our review of these accountings reflects that they are, in fact, “an itemized accounting
detailing the transactions in an account” that led to the debt and that would allow plaintiffs to
sufficiently dispute the debt obligation. See Haddad, 758 F3d at 785. All of the information
needed to reliably calculate the amount of the debt, to a reasonable degree of certainty, is
included in the accountings. Defendant attached this documentary evidence to its motion for


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summary disposition, thereby meeting its burden to demonstrate that it had verified the debt in
compliance with the FDCPA and the MRCPA.

         In response to defendant’s motion, plaintiffs did not provide any documentary evidence
showing that defendant failed to verify the debt or that the accounting was otherwise inaccurate.
Instead, plaintiffs merely argued that defendant “concede[d] in its Answer that it did not validate
the debt prior to filing the district court action in stating ‘it was impossible for the landlord to
ascertain precisely which months to apply rent and which months remained unpaid.’ ” Plaintiffs
make this same argument on appeal. In doing so, plaintiffs fail to comprehend that Homestead’s
inability to match the payments to the proper months does not make the verification incomplete
or otherwise unreliable. The fact that the payments cannot be matched to a corresponding month
is irrelevant because the amount of plaintiffs’ debt can be reliably determined by subtracting the
total payments Homestead received from the total payment due, as reflected by the accounting
defendant provided to plaintiffs. Defendant’s supposed admission does not, therefore, create a
genuine issue of material fact regarding the veracity of the verification.

        Plaintiffs also assert that a genuine issue of material fact exists regarding the accuracy of
the verification because they raised the issue of its accuracy in their complaint. When opposing
a motion for summary disposition, “an adverse party may not rest upon the mere allegations or
denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set
forth specific facts showing that there is a genuine issue for trial.” MCR 2.116(G)(4). Plainly,
the allegations in plaintiffs’ complaint, without other support, are insufficient to avoid summary
disposition. Moreover, the record belies any assertion by plaintiffs that the accounting provided
was not clear, concise, or itemized. Accordingly, plaintiffs did not demonstrate any disputed
issues of material fact regarding defendant’s verification of the debt. Consequently, the circuit
court did not err by determining that no genuine issues of material fact existed that would
preclude judgment as a matter of law.

                      E. CONSTITUTIONAL RIGHT TO A JURY TRIAL

        Finally, plaintiffs argue that the circuit court engaged in improper fact-finding, which
deprived them of their constitutional right to a jury trial. We disagree. As discussed above, the
circuit court did not engage in any impermissible fact-finding because there were no disputed
facts to resolve. Although plaintiffs suggest that a jury was required to consider the evidence
attached to defendant’s motion for summary disposition, the standard of review for a motion
under MCR 2.116(C)(10) directs otherwise. See Maiden, 461 Mich at 120. Further, because
there were no disputed facts, plaintiffs’ right to a jury trial was not implicated. A party in a civil
proceeding is not entitled to have a jury decide its case simply because it makes a jury demand.
Juries decide questions of fact and courts decided questions of law. Krohn v Home-Owners Ins
Co, 490 Mich 145, 172; 802 NW2d 281 (2011). “[A]t no time has the right to a jury trial in any
fashion been understood to displace the authority and duty of the judiciary to determine legal
issues.” Charles Reinhart Co v Winiemko, 444 Mich 579, 607; 513 NW2d 773 (1994).
Therefore, the circuit court did not err by granting defendant’s motion for summary disposition.




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Affirmed. As the prevailing party, defendant may tax costs. MCR 7.219.



                                                 /s/ Michael F. Gadola
                                                 /s/ Stephen L. Borrello
                                                 /s/ Cynthia Diane Stephens




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