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Everything posted by davephx

  1. Do you have the case number or names of parties we can follow? I have some ideas to overcome Parker but am anxious to see P&PP's latest ruling by Superior Court. I think there have been some cases lost on the 3rd SOL argument but not sure it has gone up to the Court of Appeals I am unfortunate enough (or maybe fortunate if any sue me) that I have a proven identity theft. I was contacted by the IRS when a bogus return was filed in addition to my real return. Bogus had of course a refund and my real return owed a lot. Spent about 2 hours with the IRS agent on the phone to prove which filing was really me. They had me file a police report and there is a Credit Warning for fraud on all the credit card companies reports on me.
  2. PP - I agree not that serious to have name out, there is nothing in the court documents like SS# which you don't want since can lead to identify theft. But nothing in Court records especially if civil case to be concerned about. I agree Chase a well as BofA, Wells etc totally defrauded people trying to get loan modifications under HAMP. The attorney General of Arizona twice had to file consumer fraud cases against BoA before the national settlement. Banks made $millions by foreclosing not modifying since most were backed by Fannie or Freddie. So the taxpayers took the loss on foreclosures and the banks made gobs of money in foreclosures. Lots of former employees telling how they would just destroy paperwork coming in to use the excuse they didn't get documents. Even info sent by the AZ AG was "lost" when set from homeowner that complained to the AG and the AG sent in required paperwork that got "lost" (destroyed by the banks) so they could foreclose and make huge profits.
  3. Hot in AZ Wow, I still hope you post your case since would like to review it although I have nothing pending at the moment but am anxious to see the Courts discussion of Parker. With some JDB and creditors, you still may be able to argue the reliability of the records. Sometimes we can learn how to change approaches by examining losing cases, but, of course, that doesn't help folks like you that lost the case. BTW Hot I think you missed redacting (black out) your name on one of the pages in an earlier post. I think you are P&PP if I had to look up court records. However be helpful for us if you would post just be sure to be careful if want name left out.
  4. Harry may want to compare the facts of my win vs sadly his loss; From my case won on appeal by Harris - Omitting much of it just the key relevant points: "To sustain a summary judgment, Plaintiff needed to provide undisputed admissible evidence that would compel the trial court to find in its favor on every element of the claim. Wells Fargo Bank, N.A. v. Allen, 231 Ariz. 209, 292 P.3d 195 ¶18 (Ct. App. 2012). Plaintiff failed to carry its burden of persuasion. In discussing the evidence needed to sustain a summary judgment on a credit card balance, the Court of Appeals stated:..... (quotes a lot from Allen) As with Wells Fargo in Allen, Plaintiff did not submit any proof showing its entitlement to judgment. It relied on computer generated documents but no-one established the connection between these documents and Defendant. No-one authenticated either the transaction summaries or the bill of sale. There was no evidence tying the Cardmember agreement to Defendant and no showing the proffered Cardmember agreement was signed by Defendant. Although the Arizona Court of Appeals clarified the need for proof indicating a party’s entitlement to judgment in the context of a request for a summary judgment, Plaintiff failed to produce any proof other than its unauthenticated print-outs. Plaintiff’s Reply to Defendant’s Response to Plaintif’s [sic.] Motion For Summary Judgment (Reply) did little to correct this problem as Plaintiff referenced an Affidavit of Brian Mongoven as support for its evidence about the credit card debt. Mr. Mongoven’s affidavit was ostensibly attached to Plaintiff’s Reply. However, Exhibit A to that Reply was an affidavit from Paul Saland and not from Brian Mongoven. Additionally, Mr. Saland’s affidavit shows problems akin to those the Court of Appeals found in Allen. Mr. Saland’s affidavit contains assertions that (1) the electronic account records and HSBC Cardholder Agreement were executed and maintained by the original institution; and (2) Paul Saland is Plaintiff’s representative.Plaintiff failed to demonstrate any basis for Mr. Saland’s knowledge as to how the documents were created or kept in the ordinary course of business by HSBC—the original institution. As with the paralegal in Allen, Mr. Saland never claimed to “have reviewed any specific documents or to know the manner in which they were prepared and kept”. His affidavit was insufficient to (1) invoke the business-records exception or (2) support the motion for summary judgment. Similarly, and paralleling Wells Fargo, Plaintiff appeared to have treated its summary judgment motion more like a motion for a default judgment and omitted any authentication for its records. This is insufficient to support a summary judgment." Hearsay Documents And The Need For AuthenticationDefendant also challenged the trial court’s evidentiary determinations. Because this Court determined there are material facts in controversy and summary judgment was inappropriate, thisCourt does not need to address these evidentiary issues. Statute of LimitationsThe parties also disputed when the cause of action accrued. Plaintiff asserted (1) the statute of limitations did not begin until Plaintiff’s predecessor closed the account on October 31, 2009; and (2) the appropriate statute of limitations is A.R.S. § 12–548 (A)(2) re written contracts. Plaintiff wrote:Here, according to the bank’s records, the account first became delinquent in 2009. Although, the exact date upon which Mr. xxxxxx failed to make his payment is not known with particularity, the account was closed by the bank on October 31, 2009. At this point in time, the breach is certain and the damages are fixed. Generally, a cause of action accrues whenever one person may sue another. Matter of Estate of Musgrove, 144 Ariz. 168, 169, 696 P.2d 720, 721 (Ct. App. 1985). The date when the cause of action accrued is material as Plaintiff did not file its claim until April 24, 2012. If the cause of action accrued on October 31, 2009—and assuming a three year statute of limitations for an open account Plaintiff’s filing was timely. However, if, as Defendant contended, the cause of action accrued in Feb. 2009,—and assuming a three year statute of limitations—the action was time barred. Plaintiff admitted it did not know the exact date when the breach occurred. For purposes of calculating the date for the statute of limitations Plaintiff must establish when the breach actually occurred. On appeal, Plaintiff acknowledged it was unable to do so.Plaintiff’s claim is predicated on two assertions: (1) the six year statute of limitations for a written contract is the appropriate limitations period for a credit card debt; or (2) even if the three year statute re open accounts were to be applied, Plaintiff acted within the three year period provided the account closing date of October 31, 2009 is used. In contrast, Defendant claimed the cause of action accrued when the credit card bill was first unpaid and argued the parties had an open account. Our Arizona Supreme Court defined open accounts in Krumtum v. Burton, 111 Ariz. 448, 450, 532 P.2d 510, 512 (1975) [citations omitted] as follows: An open account has been defined by this court: ‘Generally speaking, an open account is one where there are running or concurrent dealings between the parties, which are kept unclosed with the expectation of further transactions. * * *’ The Arizona Supreme Court continued:“[T]he, statute of limitations begins to run on an open account from the date of the last item.”Krumtum v. Burton, id., 111 Ariz. at 450, 532 P.2d 513. This Court does not know the “date of the last item” and Defendant has not provided any factual basis for his contention that the account became delinquent prior to Feb. 25, 2009. Instead, Defendant predicated his assertion that the account became delinquent at some time prior to Feb. 25, 2009, on his “backward calculation” as discussed in Defendant’s Motion For Leave To Amend Answer & Affirmative Defenses. Statutes of limitations are enacted to relieve defendants from the litigation of stale claims. Musgrove, 144 Ariz. at 171, 696 P.2d at 723. Plaintiff’s position that the statute did not begin to run until its predecessor closed the account, if taken to a logical extreme, could effectively prolong debt beyond the legislatively determined period for bringing an action as banks and credit card companies could delay closing accounts in order to prolong the limitations period. Plaintiff has the burden of establishing when Defendant made his last payment on the account and not just the date when the bank decided to close the account. Plaintiff had—or should have had—the opportunity to obtain the underlying statements on which it bases its claim. If Plaintiff failed to do so, that is not Defendant’s fault. Partial payments will not avoid the statute of limitations. As the Arizona Court of Appeals stated:Although our Supreme Court has made no definitive pronouncement on the question, it appears to us that under Arizona law part payment does not, in itself, avoid the bar of A.R.S. s 12-548.Cheatham v. Sahuaro Collection Serv., Inc., 118 Ariz. 452, 454, 577 P.2d 738, 740 (Ct. App. 1978). III. CONCLUSION. Based on the foregoing, this Court concludes the Dreamy Draw Justice Court erred in granting Plaintiff summary judgment. IT IS THEREFORE ORDERED reversing the judgment of the Dreamy Draw Justice Court. IT IS FURTHER ORDERED remanding this matter to the Dreamy Draw Justice Court for all further appropriate proceedings. IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court. Dated 9/9/2013
  5. In doing further research, I see how Parker has hurt recently. I would still think the trustworthiness of the records could be challenged as well as the proper documentation for the sale that almost always has the "quit claim" clause - no guarantees of any accuracy. I often find cases the OC has lost based on bad records even if in other states to at least question the reliability of records at the MSJ stage and use on appeal. Too bad Vee Vinhee is not a strong argument at least in some cases I've read since part of discretion of Court to follow or not since was a BKK case and is not controlling for credit cards. In Parker, a live witness was needed to lay the foundation and there was no real challenge it seems as to the accuracy. Parker did hurt a bit on the "personal knowledge" argument. However, it is a narrow mine field on how you argue the case based on how each case is presented. Of course, almost always lose in JC and have to do right presentation on Appeal. Similar facts but slightly different approach can make the difference even with the same Commissioner that always seems to get Superior Court appeals. Harris that I won with but sadly Harry lost on similar facts also is the same commissioner on some other wins I found, which I believe have been cited somewhere here. I also have identity theft - IRS notified me related to 2007 and 2011 and filed police report etc. Not sure if that helped or not. Currently got a letter from an attorney for JDB stating if I submitted their form and notarized affidavit with police report etc they would dismiss the case. I totally provided exactly what they asked for, but they will not dismiss the case. Not sure yet what I can do with this.
  6. I've looked only briefly at Parker but don't understand exactly why it is so bad for us. My latest reverse of JC was in September 2013 - not sure when Parker was but I need to spend a lot of time digging into all this for current case. I have zillions of printed out recent cases and need to spend serious time reviewing all.
  7. Sorry, I didn't get into this thread earlier to maybe help more. However, reading your two threads think you got much better legal ideas than I could provide, but amazed that you lost on very similar case as mine (even Saland)
  8. Re: “Defendant failed to controvert Plaintiff's facts” In one of my motions or reply to SJ I used some of the same arguments you did and was not discussed in my appeal. In my favor, the appeals court quoted Anderson v Liberty Lobby 477 U.S. 242 ... supporting my contesting of computer generated record and that I had properly argued lack of evidence and pointed out there was no testimony by any witness. Like you I lost in JC on a summary judgment and had lots of stuff in the record just like you did. I have to more carefully review what I thought was a well-written opinion (since I won!) by Harris. But its been over a year since I had to review these legal issues.
  9. Wow, I have been following this great thread and prior since it is very close to my case where I won a reverse and remand and Cavalry dismissed!. BY THE SAME COMMISSIONER HARRIS!!! Same Cavalry...same affiants.. same silly response on "verbal" thing which never made any sense to me!! My reverse was in September 2013 and thought for sure you would get a reverse. Your careful crafting and great advice from many was outstanding. I don't really see where exactly my arguments were stronger than yours. On the 3 year SOL, Harris went into great detail leaving undecided with my argument unclear date of "last item" but if my calculations were correct (Plaintiff was unclear) I would be outside the 3-year statute using October 31. 2009 as the start of the SOL period. There was no discussion of the 6-year statute. I believe there may have been Appeals case after my 2013 case which went against the 3-year SOL if had not expired by the 2011? date of the new clarification law. I am now back in Justice Court on another case - here we go again, but cross my fingers, I at least won a reverse, succeeded in oral argument on larger case directly in Superior Court and over the last few years have had I believe 3 other cases dismissed, but have no idea why I was so lucky vs your case.
  10. Note the example is for Arizona. See Seadragons good link for somewhat different WA rules however the "Answer" will be the same or similar.
  11. There is confusion between a debt verification letter vs a Court Summons and Complaint. If receive a debt verification letter if you demand verification within 30 days they have to send you name of the creditor, amount, and very basic information. All it does is delay any court action for 30+ days. A Court Summons and Complaint has to be properly "served" - usually handed to you by a process server or a Sheriff. It will state you have 20 days to file an answer or a default judgment will be issued. At this point, verification is moot. You have been sued and have to file an answer within 20 (I think in WA) days. If not properly answered within 20 days (or whatever time limit is in WA), creditor will file for a default judgment. You can still get that reversed but much harder - usually if improper service. The answer has to be in a certain form addressing line for line each item in the complaint. Lines should be double-spaced. Below is a sample for a debt buyer case not original creditor - I am not a lawyer and do not provide legal advice, only a qualified attorney can draft documents and provide legal advice. IN THE xxxxxxxxx JUSTICE COURTIN AND FOR THE COUNTY OF xxxxxxxxxxx xxxxxxxxxxx LCC Plaintiff )vs. ) No xxxxxxxxxxxxxxxxx)xxxxxxxxx and XXX XXXXX XXXX ) ANSWERHIS WIFE AND EACH OF THEM, ) Defendant (s) )____________________________________ _) Now comes Defendant, XXXXXXXXXX and files this Answer and Defense to the above captioned complaint, hereby timely replied to in response to the Complaint served on XXXX, 2014, by Paragraph numbers in the Complaint:1. ADMITTED - Defendant is a resident of Arizona but is not married. DENIED as to knowledge of the Plaintiff as to the standing of Plaintiff or any debt to XXXX Capital. 2. DENIED – Defendant has no knowledge of any contract with XXXXX Inc. Does not have any balance owing and has no knowledge of any contact.DENIES owes any money to XXXXXX..Defendant specifically pleads the following affirmative defense:1) Plaintiff has provided no admissible evidence testifying to the accuracy or validity of the alleged account.2) Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The Plaintiff must prove that the principal, interest, collection costs, and attorney’s fees are all correct, agreed to in a written contract, and lawfully charged. Defendant also insists that the Plaintiff come up with the original contract, account statements and purchase receipts to prove the amount of the debt.3) Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint signed by the Defendant has not been produced.4) Defendant claims Lack of Privity as there is no proof that the Defendant entered into any contractual or debtor/creditor arrangements with the Plaintiff.5) Plaintiff is barred under the Fair Debt Collection Practices Act from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by agreement.6) Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.7) Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.8) Plaintiff's complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.9) Plaintiff is not an Assignee for the purported agreement and no evidence appears on the record to support any related assumptions.10) Plaintiff is not the real party in interest and Plaintiff has failed to name all necessary parties.11) Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits.12) Defendant believes any alleged amount is outside the Statute of Limits and is time barred to be collected.13) Deleted related to Personal Identity theft notified by IRS and police report filed.14) Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.PRAYER FOR RELIEFWherefore, defendant asks for a judgment in favor of the defendant dismissing the complaint herein with prejudice, together with costs, and such other further and different relief as the court finds proper here.I state under penalty of perjury that the foregoing is true and correct. Respectfully submitted this xxxx, 2014 xxxx, pro se ___________________________I CERTIFY that I mailed a copy of this ANSWER to:XxxxxxxxxxxxxXxxxxxxxxxxxxxPlaintiff's attorney at the above address By Defendant xxxxxxxxxxxx xxxxxxxxxx, 2014
  12. I do not know Washington law, but it would seem to me you were never properly served. You should try and clarify with the Court - but not clear which court. If under $10,000 may be in your county small claims, if under $75,000 (assume it is!) in your municipal or county court of limited jurisdiction, although Superior Court may also be used. From a fast look seems a bit confusing in WA.
  13. This part doesn't make sense: "My husband had someone serve me with papers two months ago" Why would husband have someone "serve" you. The obvious question would be what did the papers say? Hopefully, you still have. If it was a summons for a lawsuit it would have named who was suing you etc. You would have been served by a process server not your husband!
  14. Justice Court rules as laid out in Supreme Court No. R-12-006 with a cross reference to the Arizona rules, are not intended as I understand it to make any major changes but rather just make the JC rules easier to understand. The Rules of evidence are not included in the Justice Court rules that just relate to procedures. My understanding is that all courts in Arizona have to follow the Arizona rules of evidence that conform in all the areas we have an interest to the Federal Rules of Evidence. It would be interesting if anyone pointed out any differences that are relevant to our credit card cases between JC and Superior Court, as I have not found any. It seems the JC simply doesn't follow the rules of evidence as they are suppose to which is why so many cases get reversed and remanded on appeal. I also note under Rule 133 d. Regarding change of judge if a party does not believe they will get a fair hearing. Follows ARS 22-204A whereby: 22-204. Change of venue A. If a party to an action before a justice of the peace makes an affidavit supported by the affidavit of two other credible persons of the county that they have good reason to believe, and do believe, that the party cannot have a fair and impartial trial before the justice, or in such justice's precinct, the justice shall at once request the justice of the peace of some other precinct within the county to conduct the trial within the precinct where the action is pending, and hear all matters involved therein, or to transfer the action to the nearest justice of the peace within the county not subject to the same or some other disqualification. --- The problem with that is I have not heard of many (if any) wins in JC's in Maricopa County. Ignoring the rules of evidence and getting reversed seems common with most JC's. I understand a judge not to have is Judge Conti in Dreamy Draw JC, but one might get assigned to an equally not follow the rules of evidence judge if can get two others to agree.
  15. Redacted Capital One.pdfRedacted appeal parts.pdfIn case hard to open docx files attached are same in pdf
  16. Not having time to narrow to your issue attached is the main legal arguments I won a reversal and remand on. It is more than your issue and redacted my information. I also have another case I won in Superior Court I've also included the legal arguments on. Both were before the Howell- Midland case mentioned. They cover much more than just your issue but might find helpful. Redacted appeal parts.docxRedacted Capital One.docx
  17. Hang on let me find the one I used and won on - have to find it and see it matches your issue.
  18. When a case is not citable you can say "while not a precedent, the Arizona Court of Appeals in Midland v Howell No. 1 CA-CV13-0015. pointed out...."
  19. When an arbitration award is appealed, the case is sent back to the assigned judge for a new trial.So all starts over again, I would assume new discovery etc. I agree basically with Coffee guy - You might do a motion in Limine to exclude the witness since was not properly disclosed 60 days before trial. Midland than may file a motion to continue the trial so can submit disclosure of new witness. Understand why best to get person to testify in person vs phone. I tried to save your files and simply change the extension to rtf if is rtf, but didn't work. Also have a program that will convert most formats to pdf but gave error. If you have Word you may be able to resave it is rtf or pdf.. Anyone else able to open or getting same failure as I am?
  20. After file initial 24.1 disclosure statement within 40 days of answer, disclosure is ongoing. But if don't disclose simply can not use. For example can add documents in a MSJ but not on reply to an answer. You do not file disclosure items with Court just between parties. I think there is a court form to subpoena witness but not actually done by the court. Not clear why you would want to subpoena since better for you if they don't show up in most cases. I think they lose at least in Superior Court if they can not produce a live or on phone affiliate at trial to be cross examined. Your case is different however from most since they are fighting an arbitration results.
  21. Using Word 2013 gets error on trying to open both above files. Permission issue perhaps.
  22. Others here may disagree but I would forget serving Discovery. Rarely will they answer with anything very helpful and it tips your hand on what maybe how you will challenge and gives them time to get documents you may request which they may not otherwise get thinking you don't know how to use recent cases that require it (In Superior and Appeals Court reversals) I would just wait for the Motion for Summary Judgment and see what attachments to back it up they include. Usually not what is required in many cases and once they have filed they can not submit more evidence as to the MSJ. Sadly in Maricopa Justice Court you almost always lose with the non-lawyer judges that don't look seriously at the legal issues. But your reply to the MSJ if well done can challenge what they didn't prove and often will win on appeal to Superior Court. Sad can't get "justice" in Justice Court based on the AZ appeals cases etc but often lose and have to appeal even if your legal arguments are valid.
  23. Looks like Kaplan is getting active again, know of JDB filed in the last month in Maricopa County JC. Didn't really state specific cause of action just defaulted on a credit card debt. Didn't specify if alleging contract law violation or account stated basis in Complaint. The person has answered -who also did have id theft told to him by IRS, police report filed and credit report freeze to credit bureaus. Has a mediation date set and now worrying may get a MSJ before the mediation dates. Is in process of filing disclosure statement. BTW they also moved for default judgment 10 days before the 20 days allowed to answer. So he had to file an objection to the default judgment motion. It appears they filed about 20 days after the suit was filed, not 20 days after it was served.
  24. The original article linked from above Dirty Debt sold cheap has some excellent arguments as to how much trust can be placed in the data. I just spend an hour fast reading it. Will use some of the concepts if I get any more suits. If one wants to do interogs lots of ideas here. On the other hand I tend to be on the side don't do lots of Requests for Admissions but surprise them in cross in Court on how much you know about the industry. Or have to use to opposes MSJ don't have quite the surprise factor but show what not provided so have not proven the accuracy of either the principal or interest accuracy. A challenge on accuracy based on the transfer to a JDB may be a stronger defense than ownership.
  25. Problem seems to be Hot and us have the law correct, but the law seems to be ignored by non-lawyer JC judges. Yet often win on appeal but its a slow expensive emotionally draining process.