In their opinions

[A]lthough the constitutional privilege against self-incrimination must be protected, the constitutional right of a plaintiff in a civil case to have his day in court must also be protected.”

– from the per curiam opinion of the Michigan Court of Appeals in The Huntington Nat’l Bank v. Ristich.

Jovica Ristich borrowed $55,000 from The Huntington National Bank to buy a used BMW and took out a $25,000 line of credit. The problem, as the bank later claimed, was that Ristich didn’t provide a security interest in the Beemer and misrepresented his income on the loan and credit applications.

That’s what the bank alleged in its suit. Funny thing, said Ristich, I think the feds are investigating me for the same thing. So instead of answering the suit, he asserted his Fifth Amendment privilege, moved for an evidentiary hearing and asked for a stay of proceedings.

At the bank’s request, the county clerk entered a default. The bank argued that Ristich couldn’t dodge answering the complaint with a blanket assertion of the Fifth Amendment.

That’s right, said Macomb County Circuit Court Judge David Viviano. Ristich couldn’t “just wave a magic wand because he’s been indicted and say I’m immune from civil process.”

Viviano ordered Ristich to answer the complaint and to plead the Fifth paragraph-by-paragraph where Ristich believed it was appropriate.

The bank moved for a default judgment. Ristich argued the default should be set aside, claiming in an affidavit that he had a good defense and that he didn’t owe as much as the bank said he did.

Viviano noted the conspicuous absence of supporting material to find good cause to set aside the default. And, he ruled, Ristich had to do more than just generally deny how much was owed to avoid a default judgment. Viviano entered an $86,000 default judgment, plus interest, against Ristich.

In the Court of Appeals, Judge Jane M. Beckering, William C. Whitbeck and Michael J. Kelly, made short work of Ristich’s argument that his motion to stay proceedings was the functional equivalent of a motion to extend time under MCR 208(E).

[D]efendant has not pointed to any legal rule supporting the assertion that the two motions are equivalent.

Moreover, defendant’s argument, which focuses on the factual circumstances of his case, ignores a significant distinction between motions for a stay of the proceedings and for an extension of time to file an answer.

While a defendant might assume that a motion to stay the proceedings extends the time for filing an answer, nothing in the motion notifies the trial court of the defendant’s desire to extend the time as does a motion under MCR 2.108(E).

The trial court could assume that the defendant fully intends to answer within 21 days of service. For this reason, motions to stay the proceedings and to extend the time for filing an answer should not be treated synonymously.

In order to request an extension of time for filing an answer, a defendant must file a motion pursuant to MCR 2.108(E), particularly requesting the extension.

But wait, Ristich argued, my motion for a stay and an evidentiary hearing was “other action permitted by law” under MCR 2.108(A)(1) and I’ve otherwise defend[ed]” myself under MCR 2.603(A)(1). Not so, said the COA panel:

Although a defendant in a civil action may raise the privilege against self-incrimination in his answer to the complaint, we have not discovered any Michigan law excusing a defendant who invokes the privilege from filing an answer.

To the contrary, our Supreme Court’s opinion in People ex rel Moll v Danziger, 238 Mich 39, 44; 213 NW 448 (1927), suggests that the invocation of the privilege does not excuse the obligation to file an answer. …

[T]he essence of defendant’s motion was not defensive; rather, the essence of the motion was to postpone the proceedings indefinitely, i.e., for as long as the chance that he could be criminally indicted existed. Nothing in defendant’s motion demonstrated that he was intending to defend or was defending the action.

Finally, defendant’s suggestion that he defended himself by raising self-incrimination concerns in his motion fails because … the proper method for invoking the privilege against self-incrimination is through a responsive pleading.

Bottom line: there’s nothing wrong with taking the Fifth in a civil suit, it’s just how you take it that matters.

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