NOW COMES the Plaintiff, Marjorie A. Pinard, as trustee of Stanley C Yascolt and Felicia J. Yascolt Joint Living Trust, by and through her attorney, GOWER REDDICK PLC, by Kimberly S. King, and for Plaintiff’s Motion to Reinstate Default state as follows:
1. Marjorie A. Pinard was appointed Successor Trustee of the Stanley C. Yascolt and Felicia J. Yascolt Joint Living Trust.
2. Paragraph 5 of the Trust sets forth the powers and responsibilities of the Trustee. Paragraph 5C states the Trustee has the power to “sell or exchange any real estate, security or other property of the trust estate, at public or private sale, at such time and price and upon such terms and conditions (including credit) as they deem proper, and grant options to purchase or acquire trust property.”
3. In addition Paragraph 5H states the Trustee has the power to “take any action to conserve or increase the value of any trust property. To collect, pay contest, adjust, arbitrate, compromise, sue on, defend or abandon demands of or against the estate.”
4. On June 13, 2015, Defendant, Stanley Yascolt was mailed a copy of “Notice to Beneficiary of Interest in Trust” along with a copy of the Trust, and amendments. At the same time, Mr. Yascolt was also mailed a “Notice to Quit” indicating he must move out by July 15, 2o15 or he would be evicted.
5. Mr. Yascolt was summons to appear on Wednesday, August 5, 2015. Mr. Edward Czuprynski appeared on behalf of Defendant, Mr. Yascolt.
6. Mr. Czuprynski filed an objection to the complaint and a motion for more definite statement, the day before the hearing, on August 4, 2015.
7. Mr. Czuprynski indicated to the court he believed with addition time the case could be resolved.
8. The court set the matter for a pretrial on August 12, 2015 at 10:15. Mr. Czuprynski confirmed that at that time, motion dates would be set, if needed. Judge Kelly indicated on the record that they did not have an action in court, so it would be indicated on the record that a pretrial would be set for August 12 at 10:15.
9. On August 12, 2015, Attorney Matthew Hewitt appeared on counsel’s behalf, for the Plaintiff, Majorie A. Pinard.
10. Mr. Yascolt and Mr. Czuprynski failed to appear.
11. A Default Judgment for possession was entered on August 12, 2015. Defendant was given 10 days to vacate the property.
12.It is counsel’s understanding Mr. Czuprynski had an exparte communication with the Court, or Judge Klida, regarding the case, which was the basis of the Order to Set aside the Judgement.
13.Based upon Mr. Czuprynski misrepresentation to the court, that he was not made aware of the pretrial date, Judge Klida reviewed the file and on the Court’s own motion, set aside the default. The Order was signed on August 20, 2015.
14.Counsel was not given the oppurtunity to address the motion.
15. On January 6, 2015, transcripts of the 8/5/1015 (sic) Bench Trial and 8/12/2015 Pretrial were filed with the court.
16. The Default Judgement was properly obtained and should be reinstated.
17. MCR 2.4o1(G)(1) states that failure of a party or party’s attorney to attend a scheduled conference, as directed by the court, may constitute a default to which MCR 2.603 is applicable.
18. An adjournment in the matter was requested by the Defendant, and the Court granted Defendant an adjournment, setting the matter for a pretrial.
19.Defendant’s counsel were made aware of the pretrial date, on the record as evidenced by the transcript, and both failed to appear for the conference.
20. Based on MCR 2.4o1(G)(1), a default judgment for failure to appear is appropriate and the Default judgment was properly entered.
21. Judge Klida inproperly (sic) set aside Plaintiff’s Default Judgment.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Honorable Court reinstate the Default Judgment, and award Plaintiff’s Counsel reasonable attorney fees.