I am still unsure of how to respond to this. Nothing short of this will excuse performance. 1975). The Defendants have entered into agreements with the Plaintiff, where payments were to be made on a specific timeline. At certain times in a lawsuit and depending upon which court the case was filed in, parties may file dispositive motionsmotions to dismiss, motions for summary disposition, or motions for summary judgment. 98 0 obj
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Real Estate, Last (b) If the court sets a different time for filing and serving a motion, or a reply brief, its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order. In presenting a motion for summary disposition, the initial burden of factually supporting the motion through affidavits, depositions, admissions or other documentary evidence rests with the moving party. Did plaintiff attach the Synchrony Walmart credit card agreement to the complaint, or did you first see it attached to the summary disposition motion? %PDF-1.6
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The defendant must have obtained the money without the owners consent to the creation of a debtor and creditor relationship. Citizens Ins Co v Delcamp Truck Center, Inc, 178 Mich. App. Copyright 2023 (c) Cordus Partners, LLC As you did not file thisaffidavit, their affidavit puts you at a disadvantage. Governing Law for Arbitration kB\!$lvOT#:&1>|s7j["Ay7#/x] . 0000005591 00000 n
Assuming arguendo, that the monthly payments were indeed rental payments, and also that the Plaintiff had consented to the sale of the building, the Defendants misrepresented to the Plaintiff the precise implications of the sale, in terms of her expectancy of monthly income through 2013. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use. 0000015004 00000 n
(Gloria Mosed Deposition Transcript, page 74, lines 18-20). U.S. Fidelity and Guaranty Co., v. Black, 412 Mich. 99, 313 N.W.2d 77 (1981); Ford v. Nationwide Mut. On February 22, 2023, the Magistrate Judge issued a Report and Recommendation in which he recommended granting Defendants motion (the R&R). Hello guys. 418, 420; 522 N.W.2d 335 (1994); SSC Associates Ltd Partnership v. General Retirement System, 192 Mich. App. Forms, Real Estate The injured party, of course, is always required to make every reasonable effort to minimize the loss suffered. Pleading no contest has the effect of an admission only for purposes of the pending action.". 2. Id. Estate, Public ", (adsbygoogle=window.adsbygoogle||[]).push({}), Need a Personal Loan? My motion to Anend served as my response. 0000033216 00000 n
WebMichigan Plaintiff's Response to Defendant Motion for Summary Disposition And Memorandum In Support The Forms Professionals Trust! When a motion for summary judgment is denied, the nonmoving party achieves a form of premium that enables a case to settle for an additional amount. A misrepresentation, even though made innocently, resulting in an effectively deceptive influence, and consequences as detrimental as if they had stemmed from a vicious purpose, gives the victim an action for the damages caused when the benefit inures to the party making the representation. The willful act of the Defendant in refusing to make the payments due to the plaintiff under the agreements, has created a debtor-creditor relationship between Defendant and Plaintiff, justifying the Plaintiffs right to recover. endstream
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We will always pay arbitration costs, as well as your legal fees and costs, Please respond. Minutes, Corporate Rule 2.116 - Summary Disposition (A) Judgment on Stipulated Facts. The Defendants cannot rely on the doctrine of impossibility of performance in the instant matter, because it is clear that there was never an intention to keep the promise with regard to the monthly payments owed to the Plaintiff. The Plaintiff having entered into a contract to provide fill material for defendant. The Defendants have made ambiguous statements with regard to the sale of the Southfield property, stating that the price received was approximately $400,000.00. The web Browser you are currently using is unsupported, and some features of this site may not work as intended. My Account, Forms in (1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. The Defendants have withheld monies due to the Plaintiff and to which they are not legally entitled thereby committing breach of contract and intentional tort of conversion. This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). __!*-+G-(3_sbL#2~_;IUe pw
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Summary judgment motions do have a timeline for filing and response. The party who wants to arbitrate must notify the other party in writing. Disclaimer 2023 DeBlis & DeBlis Law Firm. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would 25.) If you had filed your own affidavit with your answer denying the debt or the debt amount, you would have been in a stronger position against their affidavit. of Sale, Contract Browse USLegal Forms largest database of85k state and industry-specific legal forms. H\0?H(R&8)RE>>Tj$0vbbN:6c8CVVqK3ey|_p1k7|7Onf6]8/a/.K)*]i.\
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cCcCc'8N:. The affidavit being signed more than 10 days in advance of the filing of the suit does not "invalidate" the affidavit. 0000039579 00000 n
F( Incorporation services, Living IANAL) An answer may be amended to include an affirmative defense with either the permission of the plaintiff or upon motion to amend granted by the judge. WebIf a summary disposition motion is based on MCR 2.116(C)(8), MCR 2.116(C)(9), or MCR 2.116(C)(10), the court must give the parties an opportunity to amend their Agreements, Sale 0000014521 00000 n
the court to dismiss the %
The ownership or utilization of the building by DSS was wholly irrelevant to the Plaintiffs right to the payments. They are presented for illustration purposes only. &_m}_1YFHA>^y8JZ^ 1Qgz1/r(yHC'J^q*TR?od^{z"6W|>?gw6aPj(
8g"l8ys}|X'pEo2U"-i.0 Trust, Living Please research the motion to compel arbitration. Exchange, 449 Mich. 193, 197; 534 NW2d 491 (1995). STANDARD OF REVIEW . Change, Waiver 0000013897 00000 n
If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel _W+ The judge's copy must be clearly marked JUDGE'S COPY on the cover sheet; that notation may be handwritten. 0000002223 00000 n
If in fact the monthly payments which it was agreed would be received by the Plaintiff through 2013 are ultimately found to be unrelated to any rent or lease, the Defendants claim of impossibility of performance must fail, as the subsequent sale of the building/real property would be wholly irrelevant to the continuation of the $1800.00 payments. The Defendants have very clearly failed to demonstrate that there are no genuine issues of any material facts. The events were simply unrelated to one another. Do you guys guys still think the best thing to do is to file a motion to compel arbitration. The Plaintiff has testified that Ron Latiff guaranteed that by his word, she would receive the monthly payments before [she] knew there was any negotiations whatsoever on the real property. 0000007629 00000 n
Unforeseen difficulties will not excuse performance. ", (adsbygoogle=window.adsbygoogle||[]).push({}), Need a Personal Loan? (2) If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party. Thats why I put June 2018. under the FAA. (I) Disposition by Court; Immediate Trial. Estates, Forms <>>>
Planning Pack, Home If you have not subscribed yet, follow the steps below: With US Legal Forms, youll always have instant access to the appropriate downloadable template. While the Defendants claim that the subsequent sale of the building obviously and conclusively renders continuation of the monthly payments of what they now deem to have been rent impossible, that characterization is contrary to the Plaintiffs deposition testimony. v. NBD Bank, 1998 U.S. Dist. (I am not a lawyer) Note: in an account stated cause of action, an affidavit made more than 10 days prior to the filing of the lawsuit doesn't invalidate an otherwise valid affidavit, it means that an "untimely" affidavit can't be deemed prima facie evidence of your indebitness. <>
(1) If the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay. 0000012006 00000 n
104, 112; 651 N.W.2d 158, 198 (2002). 5 On the day of the hearing, plaintiff finally filed a response to the motion for leave to amend. WebReply briefs for summary disposition motions are not explicitly provided for in the Michigan Court Rules. 0000014671 00000 n
Voting, Board Spanish, Localized In evaluating such a motion, a court considers the entire record in the light most favorable to the party opposing the motion, including affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties. Corley v. Detroit Bd. 0000011296 00000 n
Whether the law of the case doctrine applies is a question of law for this Court. Complete (1) or (2), not both. hb```f``e a`BM0 0000008171 00000 n
(I am not a lawyer) Note: in an account stated cause of action, an affidavit made more than 10 days prior to the filing of the lawsuit doesn't invalidate an otherwise valid affidavit, it means that an "untimely" affidavit can't be deemed prima facie evidence of your indebitness. Co., 1998 U.S. Dist. endobj
If you were supposed to file an opposition response to the motion for endstream
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^ndCi'6:i@*q)}XkpHwBIU4y Y9+,qEliLoVFiRn*?S`ylYy\tH= R >.$ Schwartz v. Electronic Data Systems, Inc., 913 F.2d 279 (6th Cir. 0000040339 00000 n
gg2008, See Hi-Way Motor Co. v. International Harvester Co., 398 Mich. 330, 336, 247 N.W.2d 813 (1976). WebThe grounds for summary disposition can be found at Rule 2.116 of the Michigan Court Rules and include, but are not limited to lack of jurisdiction; lack of standing; another Corporations, 50% She answered unequivocally, absolutelya monthly amount of monies throughout the buyout. (Gloria Mosed Deposition Transcript, page 74). I can still submit a response to summary judgement as well. z)o235'3"]I>8kE0 =/.y./?iEGk{r>,!poC7]^\8x@}OG|F^SAHFt|C6fZw$X Pay out in one of two suitable ways: by card or via PayPal. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. Forms, Small Web22 Filing a Motion for Summary Disposition Under Michigan Court Rule 2.116(C)(10)? A-Z, Form 0000034811 00000 n
0000038883 00000 n
Can you post them? Therefore, in keeping with the contract principle that the party harmed by a breach of contract is entitled to receive the benefit of the bargain, it is imperative that the Defendants be enjoined from ceasing the monthly payments to the Plaintiff required by their agreement. 0000014792 00000 n
The platform gives you access to forms and divides them into groups to streamline your search. Thus, denials of summary judgment up the ante in the litigation game. Conversion is an intentional tort in that the defendants action must be willful, but one can commit the tort unwittingly if unaware of the plaintiffs outstanding property interest. Did you include your own affidavit of account denial with your answer? Plaintiffs now appeal. The Defendants cannot establish before the court an inability to continue making the monthly payments due to extreme and unreasonable difficulty, expense injury or loss involve as has been adumbrated in the case law. See United States v. Gleason, 175 U.S. 588, 602, 44 L. Ed. of Incorporation, Shareholders Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would The judge said the plaintiff can redo their summary judgement. MCR 2.116 (G) (1) (a) (i) indicates: (i) a written motion under this rule with 0000040264 00000 n
0000003891 00000 n
When you need a legal form, don't accept anything less What this means is that you have to show the court a factual dispute as to the credit card company's claim that it 0000010929 00000 n
132. The Plaintiff in its amended complaint has made a claim of conversion by stating that Defendants have been withholding the payments due to the Plaintiff under the agreements and that the Defendants have refused to make payments to the Plaintiff. ,-IoF,\SA oli-.'7+q/MhG-el1*G:!Vhf:
jgM1*vDKX `OTLmf^)Dp6aN(AYU;dOH. LLC, Internet Watson Wyatt & Co. Sav. The Defendants refusal to grant such access indicates the likelihood of wrongful appropriation and diversion of funds owed to the Plaintiff, and therefore dismissal of the count alleging conversion is inappropriate. On a similar note, the courts in Lawsuit Fin., L.L.C. 0000014938 00000 n
WebSuch a motion, or order to show cause, may be made at any time before or during the hearing. arbitrator charges, as long as we believe you are acting in good faith. STANDARD OF REVIEW The Defendant by retaining the monies due to the Plaintiff under the explicit terms of the agreement and by refusing to disburse the same, although he is obligated to return the same, has committed an intentional tort of conversion. Sales, Landlord You must have JavaScript enabled in your browser to utilize the functionality of this website. @gg2008Does the credit card agreement attached to plaintiff's summary disposition motion as exhibit D contain the following or similar language? under the FAA. LARA is dedicated to bridging the gap between civilian and military employment and helping veterans gain and retain employment. Civil Procedure. These types of motions ask the court to decide the case without a trial based on the papers filed with the court. Center, Small Agreements, LLC The court in Sanders supra, has stated that benefit of any reasonable doubt should be given to the opposing party and a court should not grant summary judgment unless it finds that it is impossible for the claim to be supported at trial because of some deficiency which cannot be overcome. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer. (1) The parties to a civil action may submit an agreed-upon stipulation of facts to the court. The court further held that inferences are to be drawn in favor of the one opposing the motion, and the court is to consider the affidavits, pleadings, depositions and other documentary evidence submitted by the parties when determining whether or not to grant the summary disposition. Sanders, supra at 691. 0000039690 00000 n
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I would like to let you know that the affidavit was signed may 10. The Plaintiff contracted to receive monthly income payments of $1800.00, through the year 2013, and additional sums to be determined on a graduated scale, based upon the adjusted net income of DSS. for Deed, Promissory I filed an answer. First, a summary judgment motion must be on file at least 21 days before it can be heard. 570, 575; 444 N.W.2d 210 (1989). Attorney, Terms of (6) Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion. The court affirmed the judgment of the trial court entered in favor of plaintiff. When a motion under subrule (C)(10) is made and supported as provided in this rule, 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. (TRCP 166a) Second, any opposing affidavits or written response should be on file no later than 7 days before the hearing. Credit Shelter Marital Trust to Children, View Change Order by Contractor - Alternative Form, View Joint Check Agreement by Contractor, View Construction Project Information Sheet, Identity (See Gloria Mosed Deposition Transcript, page 74). The actual signed receipts only matter if you are disputing a charge as fraudulent with the creditor/merchant. You are responsible as a pro se defendant for knowing Michigan Rules of Civil Procedure. WebDefinition - Dispositive motions are motions for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, to involuntarily dismiss an action, and other dispositive motions as defined by law. Further, the Plaintiff in no way waived her right to the strict performance of the oral contract through which the Defendants promised to make monthly payments, when she consented to the sale of the building. hb```e``e`c`Pcd@ A;>20?p bCK[-Q>2_18QCAgO!).Wz@
q ( B& E@0@d8310132332p0q3abd1i% (Gloria Mosed Deposition Transcript, page 45). Attached is a sample brief in opposition to the defendants motion for summary disposition. Applying the cases in its favor, the Plaintiff states that she has in her pleadings drawn out a claim where relief can be granted under the law and where issues of fact exist. You must have JavaScript enabled in your browser to utilize the functionality of this website. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>>
Display as a link instead, Templates, Name WebMoreover, as explained by the Michigan Liquor Control Commission's Director of Enforcement in his affidavit attached to Defendants' Response to Plaintiffs' Motion for Summary Judgment, most enforcement of sales to minors results from decoy operations, since minors do not typically report themselves to be arrested. of Attorney, Personal Any court with jurisdiction may enter of Business, Corporate Each complaint allegation in each numbered paragraph of the complaint must be denied in your answer, or it is deemed admitted. l,d+Yo`v8,\:s9A0G#=LY2u`dC_/`` The purchase price of a property for which the proceeds are to be shared among members of a partnership is a fixed amount, susceptible to precise measurement. %PDF-1.5
Notes, Premarital ?&:_|VV(pu8f,|v ?PAL&*yl^s'FWjdZ $6yGF =I$i[Mwy{
^-C+xef)6VYbS?>}*LpUBa ?V- &wP7f8H 6#j;'@jIZ'V^pzllWT| (I am not a lawyer. Co., 439 Mich. 378, 391 (1992) discusses conversion in the civil context, and conversion is defined as any distinct act of domain wrongfully exerted over anothers personal property in denial of or inconsistent with the rights therein. Records, Annual In Camper Sales & Rental, Inc., 234 Mich. App. Court samples are copies of actual pleadings or documents filed in a Court proceeding or land records file. Overlapping Tax & Money Laundering Charges, Tax Law: Anatomy of a Civil Tax Controversy with an Introduction to IRS Appeals, Seven Trademark Tips Every Podcaster Should Know (IP&TLJ), Is that Worker an Employee? %%EOF
Not only must the plaintiff in such a case show that he has suffered an injury; he must also show that the injury inures to the benefit of the party making the representation.
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As for a signed contract the court knows one does not exist in a credit card case. Plus, you'll receive our exclusive email newsletter, where we promise to deliver actionable advice - straight to your inbox. 276; 156 NW2d 623 (1967) the Defendant contractor sought review of the decision of the Kent County Court which granted judgment for plaintiff subcontractor in a lawsuit dealing with impossibility as a defense to breach of contract. 0000002862 00000 n
motion is properly made and supported, the opposing party must, by affidavit or otherwise, set forth specific facts demonstrating a genuine issue for Foreman v. Foreman, 266 Mich. App. The suit was filed June 7. Once you are sure the sample is what you need, click on Buy Now. 0000040728 00000 n
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: 0000006405 00000 n
Overview. He maintained that the motion should be denied because judicial See E.D. Category: Michigan Civil 3 0 obj
1990). 147 (Mich App 2005). Tenant, More Ok. It must be shown that the thing cannot by any means be effected. Operating Agreements, Employment A response must be in writing and include the same supporting documents as a motion for summary judgment. When asked if the deed was evidence of a writing reflecting [the] agreement with Joe Mosed, Jr., the Plaintiff responded, yes. The reply brief must be filed and served at least 4 days before the hearing. Hey Guys. at 743. trailer
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Ins. & Estates, Corporate - The lawyer signed the paperwork May 21. In general, it is viewed as an intentional tort in the sense that the converters actions are willful, although the tort can be committed unwittingly if unaware of the plaintiffs outstanding property interest. If you have an account, sign in now to post with your account. The arbitrators decision will be final and binding, except for any appeal right under the FAA. 2.116(C)(10) is the appropriate basis for summary disposition when [e]xcept as to any (Gloria Mosed Deposition Transcript, page 74). 1514, 1517 (E. D. Mich. 1985) listed six elements for a common law claim for fraudulent misrepresentation in Michigan: (1) that the defendant made a material misrepresentation; (2) that it was false; (3) that the defendant knew the statement was false when made, or made the statement recklessly, without any knowledge of its truth and as a positive assertion; (4) that the defendant made it with the intention that it should be acted upon by the plaintiff; (5) that the plaintiff acted in reliance upon it; and (6) that the plaintiff thereby suffered injury. You cannot paste images directly. 0000023360 00000 n
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The party who wants to arbitrate must notify the other party in writing. Webfailing to consider evidence she provided in opposition to defendants motion for summary disposition. It has long been held that the law aims to make compensation adequate to the real injury sustainedas far as money can do it Brodsky v. Allen Hayosh Industries, Inc. 1 MIch App 591, 597, 598 (1965), quoting Hammond v. Hannin 21 Mich. 374, 384 (1870). If the administrators rules conflict with this Agreement, this Agreement will control. hbbd``b`@ H0\$ 0
Your email address will not be published. 2 0 obj
The arbitration will take place by phone or at a reasonably convenient location. 0000037694 00000 n
xZ[o~0O"V4$\I{,}c'v7RKjiXpsz|GqOG3, Id. In the August 4, 2005 deposition, the Plaintiff was asked if, by transferring her interest in property to Joe Mosed, Jr., she had an expectation of getting something in return. 0000033468 00000 n
The Plaintiff has been prevented from examining the books in attempts to ascertain the true amounts due to her under the agreements. Your best bet to beat this is to get a MTC arbitration approved. Theft, Personal USLegal has been awarded the TopTenREVIEWS Gold Award 9 years in a row as the most comprehensive and helpful online legal forms services on the market today. Agreements, Sale USLegal has the lenders!--Apply Now--. Please update to a modern browser such as Chrome, Firefox or Edge to experience all features Michigan.gov has to offer. Rather, the evidence points to a contrary conclusion, as the Plaintiffs deposition testimony unequivocally states that she transferred her interests to Joe Mosed that she did so with the explicit understanding that she would continue to receive a monthly amount of monies throughout the buyout which would run through 2013. Notes, Premarital The Plaintiff has testified that Mr. Mosed told her that she would receive [her] monthly payments throughout the buyout. (Gloria Mosed Deposition Transcript, page 44). The trial court concluded that plaintiffs were required to respond to defendants affirmative defenses under the Michigan Court Rules and their failure to do so entitled defendants to summary disposition. has been breached is to provide the innocent party the benefit of his bargain, or in other words, to place him in a position equivalent to that which he would have attained if the contract had been performed as promised. Under this law, you should have submitted with your answer avalid counter-affidavit (your sworn statement under penalty of perjury) that denied the debt amount they assert you agreed to. (iv) no additional or supplemental briefs may be filed without leave of the court. WebLees response to the motion was due on June 3, 2022, but Lee did not file a response by that date. This is your answer? The court in Bissell, supra, stated: A waiver may be shown by proof of express language of agreement or inferably established by such declarations, acts and conduct of the party against whom it is claimed as are inconsistent with a purpose to exact strict performance. Bissell at 287. Pasted as rich text. 44 0 obj
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The Tribunal has reviewed the Motion and the evidence submitted and finds that summary disposition should be granted in Respondents favor under MCR 2.116(C)(7), (8), and (10). 0000006293 00000 n
As I said before, filing a motion to amend your answer along with the motion to compel arbitration is probably your best option--other than negotiating a settlement. SUMMARY DISPOSITION. (4) The court may postpone until trial the hearing and decision on a matter involving disputed issues of fact brought before it under this rule. If the administrators rules conflict with this Agreement, this Agreement will control. Any court with jurisdiction may enter USLegal has the lenders!--Apply Now--. at 391.The Defendants are well aware of the outstanding dues to the Plaintiff and therefore the conversion is willful. "You have an excellent service and I will be sure to pass the word. I just received this summary the other day. v. Curry, 261 Mich. App. All forms provided by US Legal Forms, the nations leading legal forms (S or C-Corps), Articles Forms 10/10, Features Set 10/10, Ease of Use 10/10, Customer Service 10/10. She asked if I will file a motion I told her I will. 0000006209 00000 n
Therefore, based upon the foregoing, the Plaintiff, Gloria J. Mosed, respectfully requests that this Honorable Court deny the Defendants Partial Motion for Summary Disposition. 5320, ATTN: ARBITRATION DEMAND. Name Change, Buy/Sell Directive, Power 579, 591 (2004) held [t]o support an action for conversion of money, the defendant must have obtained the money without the owners consent to the creation of a debtor-creditor relationship' and must have had an obligation to return the specific money entrusted to his care..
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