ping

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ping last won the day on April 15 2011

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  1. since the COA occurred prior to the SOL change, the 6 year SOL doesn't apply. if the Dell account was secured by collateral ( the computer ) 4 year SOL applies under the UCC for Secured transactions. http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/47/02725.htm&Title=47&DocType=ARS if your debt was time barred ( 3 year SOL) before this date, you can still argue it is SOL. Because they didn't change this statute. 12-505. Effect of statute changing limitation A. An action barred by pre-existing law is not revived by amendment of such law enlarging the time in which such action may be commenced. AZ supreme court cite fore 12-505 http://www.supreme.state.az.us/opin/pdf2005/CV040033PR.pdf Choice of law provisions was changed along with the 6 year SOL, but it doesn't apply either.
  2. No it shouldn't restart the SOL - besides the account was sold to LVNV Funding. Amex has no further interest in the matter, and this may be part of the CFPB settlement with Amex. where they were ordered to make an 85 million dollar refund to certain cardholders. http://www.consumerfinance.gov/pressreleases/cfpb-orders-american-express-to-pay-85-million-refund-to-consumers-harmed-by-illegal-credit-card-practices/
  3. the banks take a tax deduction for bad debts. then the same banks give the JDB's a credit line so they can buy more bad debt then the JDB's pay them back witn interest.
  4. Effect of statute changing limitation, and the 2011 amendment of 12-548 which added credit cards to the 6 year SOL is not applicable and is the use thereof is barred by state law A.R.S 12-505; An action barred by pre-existing law is not revived by amendment of such law enlarging the time in which such action may be commenced See City of Tucson v. Clear Channel. City of Tucson v Clear Channel; See Crowell v. Davenport, 11 Ariz. 323, 327-28, 94 P. 1114, 1115 (1908) (holding that suit on a contract cause of action that had accrued prior to effective date of new statute was governed by statute in effect at time of accrual). In Crowell stating that [t]he rule for the construction of new, re-enacted, or amended statutes of limitation applied in some jurisdictions is that, unless a contrary intent be expressed, they are to be given a prospective effect so as to extend the period of time within which suits might be brought on existing causes of action to the full time prescribed by such statutes counting from the time they take effect. 11 Ariz. at 326, 94 P. at 1115. Crowell eventually held, however, that this rule did not apply in Arizona in light of paragraph 2974, and that causes of action accruing before the effective date of a new statute were governed by the old statute of limitations. Id. at 327-28, 94 P. at 1115. --Such an argument presumes that the "pre-existing law" must be a specific statute of limitations. But the legislature did not use the term "statute" or "statute of limitations" in § 12-505©; it referred in this subsection, as in the balance of § 12-505, to "pre-existing law." "Law" encompasses more than just statutes; it also includes constitutional provisions, the common law, and judicial decisions. Wagenseller v. Scottsdale Mem'l Hosp., 147 Ariz. 370, 378, 710 P.2d 1025, 1033 (1985) (recognizing that law emanates not just from statutes, but also constitutions and judicial opinions). See Black's Law Dictionary 889 (7th ed. 1999) (defining "law" as "[t]he aggregate of legislation, judicial precedents, and accepted legal precedents; the body of authoritative grounds of judicial and administrative action") Arizona Court of Appeals Continental Casualty Company v. Grabe Brick Company Inc. 1 Ariz. App. 214, 401 P2d 168 (1965) "A more thorough treatment of what an "open account" consists of is found in 1 Am. Jur.2d, Accounts and Accounting, Section 4, p. 373: "An open account results where the parties intend that the individual items of the account shall not be considered independently, but as a connected series of transactions, and that the account shall be kept open and subject to a shifting balance as additional related entries of debits and credits are made, until it shall suit the convenience of either party to settle and close the account, and where, pursuant to the original express or implied intention, there is but one single and indivisible liability arising from such series of related and reciprocal debits and credits. This single liability is to be fixed on the one part or the other, as the balance shall indicate at the time of settlement, or following the last pertinent entry of the account, and it must be one mutually agreed upon between the parties or impliedly imposed upon them by law" In Beane v. Tucson Medical Center, 13 Ariz. App. 436, 477 P.2d 555 (1970), Division 2 of this court interpreted the requirement of a contract in writing requirement as follows: "A cause of action is not upon a 'contract founded upon an instrument in writing' merely because it is in some way remotely or indirectly connected with the instrument or because the instrument would be a link in the chain of evidence establishing the cause of action." (Petty and Riddle, Inc. v. Lunt, (1942) 104 Utah 130, 138 P 2d 648).} In Wing v. Jimenez 114 Ariz 346, 560 P.2d 1253 (1977) Maricopa County Superior Court interpreted the limitation period on a store account "Under A.R.S. 12-543 the statute of limitations is no defense in an action on an open account if any of the items was incurred within the three-year period. If such has occurred the plaintiff can recover for all items in an open account including those incurred more than three years prior to the filing of the complaint." Maricopa Superior Court Minute entry; "In this case, the credit card agreement between the appellant and First USA Bank, (which was subsequently assigned to the appellee) was an open account." Citing Krumtum. DSS Financial Group Inc. v. Deborah Walrod LC2008-000690-001 DT (On appeal from South Mountain Justice Court CC200714554) Arizona Supreme Court Open accounts are "one where there are running or concurrent dealings between the parties, which are kept unclosed with the expectation of further transactions" Connor Livestock Co. v. Fisher, 32 Ariz. 80, 85, 255 P. 996, 997 (1927) "The Statute of Limitations begins to run on an open account from the date of the last item,..." "Therefore the last item charged on the open account was more than three years before the action was commenced and the statute of limitations having been pled is a bar to the suit" Krumtum v. Burton 111 Ariz 448, 532 P2d 510 (1975) Plaintiffs contract with telephone company which was partly oral and partly written was an oral contract and thus was governed by Arizona statute of limitations applicable to oral, rather than written, contracts. Biddle v. Mountain States Tel. & Tel. Co., C.A.9 (Ariz.)1980, 629 F.2d 571. Limitation Of Actions 26.1 A memorandum, in order to satisfy a contract within the statute of frauds, must state the terms and conditions of all the promises constituting the contract and any deficiency in this regard cannot be supplied by parol. Gray v. Kohlhase (App. Div.2 1972) 18 Ariz.App. 368, 502 P.2d 169. Frauds, Statute Of 113(2); Frauds, Statute Of 158(3) ( an unsigned CC terms and conditions or account statements are parol . ) Kersten v. Continental Bank, 628 P.2d 592 (Ariz. 1981) The six year statute of limitations requires that the alleged debt, here the obligation to lend $100,000 to plaintiffs, be evidenced by or founded upon a written contract. In Beane v. Tucson Medical Center, 13 Ariz. App. 436, 477 P.2d 555 (1970), Division 2 of this court interpreted this requirement as follows:"In order for a cause of action to be founded upon a contract in writing, the instrument itself must contain an undertaking [129 Ariz Page 47] to do the thing for the non-performance of which the action is brought. Petty and Riddle, Inc. v. Lunt, 104 Utah 130, 138 P.2d 648 (1942); Division of Labor Law Enforcement, Department of Industrial Relations v. Dennis, 81 Cal.App.2d 306, 183 P.2d 932 (1947); Tagus Ranch Company v. Hughes, 64 Cal.App.2d 128, 148 P.2d 79 (1944). A cause of action is not upon a 'contract founded upon an instrument in writing' merely because it is in some way remotely or indirectly connected with the instrument or because the instrument would be a link in the chain of evidence establishing the cause of action. Petty and Riddle, Inc. v. Lunt, supra." (Emphasis added). 13 Ariz. App. at 438, 477 P.2d at 557. the Statute clearly states Amended and revised, there is no evidence of congressional intent that indicates "clarification". the original bill submitted specifically states that it is "added" to the Statute. OverviewHB 2412 adds a credit card to the type of debt that must be prosecuted within six years after the cause of action accrues. http://www.azleg.gov...overnor.doc.htm ( print it out and attach it. ) and the Statute is specifically states Amended. HOUSE BILL 2412 AN ACT amending section 12‑548, Arizona Revised Statutes; relating to actions on debt. Bill Text: AZ House Bill 2412 - Fiftieth Legislature - First Regular Session (2011) | LegiScan , The Arizona Supreme court has ruled that if all the terms of the contract are not within 4 corners of the document and signed by the parties, or if the contract has to be proved by Parol evidence, that it is an oral contract a contract subject to the 3 year Statute. The Maricopa superior court had repeatedly overturned lower courts rulings on the 6 year Statute of limitations and opinined that the 3 year Statute for Open account, Oral contracts applies to Credit card accounts See Capital One Bank v. Ruffcorn (Ariz. Super. Ct. Apr. 19, 2010) LC2009-000927-00l DT Lower Court Case No. CC2008186529RC Other State courts have ruled that Credit Cards in Arizona fall under the 3 year Stautes based on AZ supreme court Ruling See Fla. Credit Research Inc. v. Felicien (Fla. County Ct. Apr. 15, 2008) http://www.nclc.org/images/pdf/unreported/Ruffcorn.pdf
  5. one has to file repeated, mertiless, nutcase claims that have no basis in law or fact since it mostly proven that the folks sued by Midland Owe a debt to someone, and since the Justice courts repeatedly awards judgments on these claims, I doubt they are going to give you hearing on this. you have to go after the JC magistrates who admit hearsay evidence. this would take a RCP or Statute change similar To Deleware or NC and that won't happen in AZ with this legislature.
  6. all reporting disputes have to go to the address on the credit reports but for LVNV funding, - Resurgent Captial services is the one handling all the credit reporting duties for LVNV funding LVNV funding has very few employess- it's holding company only. for FDCPA DV'and Intent to sue letters, use the charleston address.
  7. file a motion to strike the affidavit. below is a sample MTS - which is a bit more complete than the standard one that floats about. if all they filed was statements and a bill of sale and affidavit, and nowhere is your account number listed on the Bill of sale - and there is no ledger of account attached to the bill of sale, then file a motion to strike everything they filed. Askew case is perfect. Comes now, Defendant ### and respectfully states the following: 1. Plaintiff has submitted into evidence Exhibit "A" which consists of an "affidavit of debt". 2. Said document pertains to acts and events that allegedly occurred between Defendant and a third party,---------------, NA. 3. At no time was the creator of the "affidavit of debt" nor any of Plaintiff's employees present to witness any alleged acts or creation of the records of transactions occurring between defendant and -------------- N.A. 4. As such said affidavit falls under the hearsay rule and is inadmissible as evidence. 5. Source of the records are untrustworthy - since the seller of accounts does not state on their bill of sale that they warrant, represent, or ensure the accuracy or completeness of information included. 6. Defendant further states that the affidavit is not subject to the hearsay business records exemption because it was not made at or near the time of the alleged acts or events, and; 7. The information contained in the document is merely an accumulation of hearsay, and; 8. Upon information and belief, the creator of the document in Plaintiff's Exhibit " A" is not currently and has never been employed with ---------------, N.A. and therefore cannot have personal knowledge of how ----------Bank's records were prepared and maintained, and; 9. Is unqualified to testify as to the truth of the information contained in Plaintiff's Exhibit "A". 10. It is the business records that constitute the evidence, not the testimony of the witness referring to them. There is no business record from the original creditor attached that shows that the defendant had an account or used an account that was transferred to the plaintiff, 11. Debt buyer "assignment" or " Bill of Sale " that does not refer to specific accounts does not establish ownership by the plaintiff, nor is testimony based on a computer screen sufficient. 12. If records are submitted, they must be properly authenticated. 13. An affidavit that is conclusory is substantively defective. A conclusory statement is one that does not provide the underlying facts to support the conclusion. An affidavit is substantively defective when the absence of the referenced papers from evidence leaves the affidavit conclusory 14. As to assigned claims, it is essential that an assignee show its standing, which "doctrine embraces several judicially selfimposed limits on the exercise of … jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights" . . . A lack of standing renders the litigation a nullity, subject to dismissal without prejudice . . . . It is the assignee's burden to prove the assignment . . . . Given that courts are reluctant to credit a naked conclusory affidavit on a matter exclusively within a moving party's knowledge . . . an assignee must tender proof of assignment of a particular account or, if there were an oral assignment, evidence of consideration paid and delivery of the assignment" 15. The documents upon which the Plaintiff relies do not support the Plaintiffs claim. While the Plaintiff alleges that it is the assignee of this account, the Plaintiff fails to provide proper proof of the alleged assignment sufficient to establish its standing herein 16. The records attached does not contain a list of the accounts which were included in the transfer. Thus on it's face, the assignment and bill of sale do not specify that defendant's account was included in any transfer, and cannot support Plaintiffs contention that defendant's account was so transferred 17. The statement of account is not a business record from the original creditor, and is hearsay without supporting records from the original creditor - anyone could make up this statement on a word processor, and that appears exactly what this is 18. The account statement, the affidavit is a compilation of hearsay and the bill of sale from chase bank is not adequate foundation - it is carefully constructed hearsay meant to deceive the court and the defendant , and possibly constitutes willful misrepresentation in violation of the FDCPA. WHEREFORE, the Defendant prays that Plaintiff's Both Exhibits "A" and the Affidavit be stricken from evidence in the above action.
  8. Definition: Certiorari, Petition for Writ of Certiorari. it means the lower court ruling ( the 3rd circuit court ruling ) stands on it's own and they have refused to consider or issue a ruling on the case.
  9. the US Supreme Court has Denied the Petition for a Writ of Centiorari. http://www.supremecourt.gov/orders/courtorders/012312zor.pdf FWIW, "meaningful involvement " was decided long ago; A lawyer may not "rent out" a letterhead or signature to a Collection Agency Christ CLOMON v. Philip D. JACKSON No. 761, Docket 92-7942. United States Court of Appeals, Second Circuit. Argued January 6, 1993. Decided March 17, 1993. John E. Beekman, Esquire and "true business name" violation.... FDCPA Staff Opinion: LeFevre-Challed one always supposes that a law firm is composed of attorneys and qualified legal staff. So they worked around that prohibition by forming their own inhouse collection agency. In short, they circumvented the FDPCA. I don't see any difference - If they are going to send out collection letters with a lawfirm letterhead, it impllies that an attorney or other legal staff is involved and; safe harbor language should not be allowed, a lawyer Could do a 5 minute review Especially when you have JDB's hiring lawfirms to send out letters on SOL debts
  10. you have thier discovery requests in front of you. use their's as a template for yours.
  11. 38 state attorney generals have filed ann opposition statement to the brent settlement it's posted on another thread here.
  12. An assignment can be with or without "recourse" if an assignment is made 'with recourse', and the list of account recievables is inaccurate, and the assignee cannot collect because the account is proven to be false, or not owed, then the Seller has to buy back the account. However, unlike a traditional factoring company which buys these accounts @ 80 to 90% of face value from a commercial businesses, a sale of these portfolios from the CC banks areusually sold "without recourse" to the JDB's The "sales agreements" covering the assignments of portfolios ( Bill of Sale ) are usually not guaranteed or certified by the Seller or previous Assignors to be correct or accurate; the ledger of accounts are sold "as is" and the JDB's have no recourse against the seller if the accounts are false. they only have recourse against the bank if the account is proven to be a result of ID theft- it's illegal to sell those accounts under federal law. therefore, the source of the business records are untrustworthy from the get go. and all affidavits regarding the fact that this "ledger of accounts" is an accurate, certified admissable business record is junk. therefore everything should get thrown out the window.
  13. No, they aren't - those statutes have not been revised and if the sue you under those causes of action then the 3 year SOL applies.
  14. if you are going to peruse your counter claims, then you have to opt out of any settelement with the class action. have you sent discovery requests out on your case?