sweet1710

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About sweet1710

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  1. The JDB retrieved their MSJ, I think it's because they can't produced any valid documents. The Court put our case in Inactive Calendar on March 15, which means the case against me will go to Dismiss Without a Prejudice by May 19.
  2. congratulations! I wish I did the same (counter claim) when the JDB sued me.
  3. Thank you guys again for all your opinion. I also wondering if I might consider this option in Arizona Rules of civil Procedure. My case right now has been put in INACTIVE CALENDAR due to A.R.S. Rules of Civ. Procedure 38.1 (d) & (e), here's the copy of that rule: Rule 38.1. Setting of Civil Cases for Trial; Postponements (d) Inactive Calendar. The clerk of the court or court administration shall place on the Inactive Calendar every case in which a Motion to Set and Certificate of Readiness has not been served within nine months after the commencement thereof, All cases remaining on the Inactive Calendar for two months shall be dismissed without prejudice for lack of prosecution, and the court shall make an appropriate order as to any bond or other security filed therein, unless prior to the expiration of such two month period; (1) a proper Motion to Set and Certificate of Readiness is served; (2) the court, on motion for good cause shown, orders the case to be continued on the Inactive Calendar for a specified period of time without dismissal; or (3) a notice of decision has been filed with the clerk of court in a case assigned to arbitration. (e) Notification. The clerk of the court or court administrator, whoever is designated by the presiding judge, shall promptly notify counsel in writing of the placing of cases on the Inactive Calendar, and no further notice shall be required prior to dismissal. My case was put in INACTIVE Calendar from March 15, 2010. Basically, I also find out that every case here in Arizona need to file a Motion to Set and Certificate of readiness before the Arbitration and Trials begin. However, any party who file this Motion will pay $10.00. That is why I did not file this Motion because I want them to pay that amount since they're the one who filed a complaint. Any opinion? Thank you again for all all your help, I really really appreciate it!
  4. Hello everybody! I need your opinion about whether to file a Motion for Summary Judgment or Motion to Dismiss with Prejudice against CACH, LLC. Their lawyer retrieved their Motion for Summary Judgement against me today, and I really want to end this nonsense case. They couldn't produced any documents to prove that I own or they have the right to collect the debt that they bought form B of A. I also need a help in constructing a Motion. Thank you all very much!
  5. Does it mean that I could file a Motion to Dismiss with Prejudice since they couldn't provide any solid evidence that they are the owner of this account?
  6. Hi Nob, the Plaintiff's Affiant name is Michelle Samsel, I googled her name and it looks like a few people like me has also posted about them being sued by CACH, LLC and the Affiant's name is Michelle Samsel who is claiming to be employed by Bank of America. When I look at the Linkin site, the name Michelle Samsel lives in Harrisburg, Pennsylvania, and her posted job is Education Management.
  7. Hello guys, just find out today after I searched my case that the Plaintiff's attorney called the Court and request to disregard their Motion to for Summary Judgment and gave motion procedure. What does it means? Is my case close? What do I need to do next?
  8. Thank you guys for all your support. I will probably gonna look what are the Rules for Motion to Strike in Arizona. I am really lost on this one. My question about the Affiant's Affidavit is, the credit card account was issued here in Arizona, why is it that the Affiant from North Carolina gave the Affidavit since they could produce an Affidavit to where the CC was opened. Could I also include this on my MTS the Affidavit?
  9. Thank you very much BV! However, I would like to ask what is CMRRR? And, is there any thread for template that I could see how to make it? Thanks again!
  10. Here's what I got form Arizona Rules of Civil Procedure: 6 A.R.S. Rules of Civil Procedure, Rule 37(a) Arizona Revised Statutes Annotated Currentness Rules of Civil Procedure for the Superior Courts of Arizona (Refs & Annos) V. Depositions and Discovery Rule 37. Failure to Make Disclosure or Discovery; Sanctions (Refs & Annos) Best Section Begin Rule 37(a). Search Term Begin Motion Search Term End for Order Search Term Begin Compelling Search Term End Disclosure or Discovery A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order Search Term Begin compelling Search Term End disclosure or discovery as follows: Best Section End (1) Appropriate court. An application for an order to a party may be made to the court in the county in which the action is pending, or, in matters relating to a deposition, to the court in the county where the deposition is being taken. An application for an order to a person who is not a party shall be made to the court in the county where the discovery is being, or is to be, taken. (2) Search Term Begin Motion Search Term End . (A) If a party fails to make a disclosure required by Rule 26.1, any other party may move to Search Term Begin compel Search Term End disclosure and for appropriate sanctions. ( If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 30((6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order Search Term Begin compelling Search Term End an answer, or a designation, or an order Search Term Begin compelling Search Term End inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order. © No Search Term Begin motion Search Term End brought under this Rule 37 will be considered or scheduled unless a separate statement of moving counsel is attached thereto certifying that, after personal consultation and good faith efforts to do so, counsel have been unable to satisfactorily resolve the matter. (3) Evasive or Incomplete Disclosure, Answer, or Response. For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond. (4) Expenses and Sanctions. (A) If the Search Term Begin motion Search Term End is granted or if the disclosure or requested discovery is provided after the Search Term Begin motion Search Term End was filed, the court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the Search Term Begin motion Search Term End or the party or attorney advising such conduct or both of them to pay the moving party the reasonable expenses incurred in making the Search Term Begin motion Search Term End , including attorney's fees, unless the court finds that the Search Term Begin motion Search Term End was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response, or objection was substantially justified or that other circumstances make an award of expenses unjust. ( If the Search Term Begin motion Search Term End is denied, the court may enter any protective order authorized under Rule 26© and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the Search Term Begin motion Search Term End or both of them to pay to the party or deponent who opposed the Search Term Begin motion Search Term End the reasonable expenses incurred in opposing the Search Term Begin motion Search Term End , including attorney's fees, unless the court finds that the making of the Search Term Begin motion Search Term End was substantially justified or that other circumstances make an award of expenses unjust. © If the Search Term Begin motion Search Term End is granted in part and denied in part, the court may enter any protective order authorized under Rule 26© and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the Search Term Begin motion Search Term End among the parties and persons in a just manner.
  11. Yes, I also did. I just can't pull out right now the copy of the paper that I sent to them. But I will post it as soon I find it.
  12. Hello BV80! NO, nothing, they did not sent any documents on my Discovery Request. I request the Bill of Sale, a sign agreement between me and the Bank of America and agreement to them as well, but NONE. They just sent me their Admission. And then in their MSJ they included a copy of my CC bill from June to September of 2008. Here's their reply with my Request for Admission: PLAINTIFF'S RESPONSE TO DEFENDANT"S REQUEST FOR ADMISSIONS GENERAL OBJECTIONS TO ANSWER TO DISCOVERY: REQUEST FOR ADMISSIONS: All responses are made without in any waiving or intending to waive but on the contrary intending to preserve and preserving: 1. All questions as to foundation, relevance, materiality, privilege and admissibility in evidence for any purpose in any subsequent proceeding, or at the trial of this or any other action; 2. The right to object to the use of said documents or subject matter thereof, in any subsequent proceeding or at trial of this or any other action; 3. The right to object on any ground at any time to demand further responses to these or any other requests for production of documents or other discovery procedures involving or relating to the documents produced herewith; 4. The right at any time to revise, correct, add to, or supplement the responses made herein and 5. Discovery is continuing on the matters requested herein. Plaintiff will supplement its responses provided herewith to the extent required by Arizona Rules of Civil Procedure. Subject to the foregoing objections, Plaintiff, for its Responses too Defendant's Request for aAdmissions, states and alleges as follows: DEFENDANT'S REQUEST NO.1: Admit that Plaintiff has not provided Defendant with a copy of contract signed by Defendant. PLAINTIFF'S RESPONSE: Admit at this time Plaintiff does not have in its possession a revolving credit agreement singed by defendant, however, discovery is ongoing. DEFENDANT'S REQUEST.2: Admit that the Plaintiff failed to validate the debt that the Defendant was requesting. - I have a proof on this one that they never answer my DV. PLAINTIFF'S RESPONSE: Deny DEFENDANT'S REQUEST NO.3: Admit that the Plaintiff do not have a contract, agreement, assignment, or other means demonstrating that CACH, LLC had the authority and capacity, and was legally entitled to collect on the alleged debt form Account number. PLAINTIFF'S RESPONSE:: Deny DEFENDANT'S REQUEST NO.4: Admit that the Plaintiff failed to send any letter(s) to Defendant demonstrating an attempt to collect on the alleged debt. PLAINTIFF'S RESPONSE: Deny DEFENDANT'S REQUEST NO.5: Admit that Plaintiff is not licensed and authorized to solicit the right to collect or to receive payment for the claim of another in the State of Arizona. PLAINTIFF'S RESPONSE: Deny on the basis of relevance. DEFENDANT'S REQUEST NO.6: Admit that the Plaintiff is not licensed to collect debt in the State of Arizona and has no=t procured a bond as required by the State of Arizona. PLAINTIFF'S RESPONSE: Deny on the basis of relevance. DEFENDANT'S REQUEST NO.7: Admit that the Plaintiff do not have an itemized statement or credit card statements from Account number that demonstrate how the alleged amount of $5,141.11 was calculated. PLAINTIFF'S RESPONSE: Deny DEFENDANT'S REQUEST NO.8: Admit that the Plaintiff do not have any written communication, received by the Plaintiff and/or Plaintiff's attorney form the Defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as Plaintiff's and/or attorney accessing of Defendant's credit report(s). PLAINTIFF'S RESPONSE: Deny DEFENDANT'S REQUEST NO.9: Admit there were no prior transactions between Plaintiff and Defendant. PLAINTIFF'S RESPONSE: Deny DEFENDANT REQUEST NO. 10: Admit that Plaintiff has not provided Defendant with copies of bills of sale establishing its ownership of the account. - NONE!!! PLAINTIFF'S RESPONSE: Deny - this is really BS of them. DEFENDANT'S REQUEST NO. 11: Admit that Plaintiff is not a proper party in this action. PLAINTIFF'S RESPONSE: Deny - Could I still be able to sent a Motion to Compel a documents, since most of their answer about documents proving that they have it with them? Thanks guys!
  13. Thank guys very much for the support and replies. I did start a new thread today, I am very hopeful that a lot of members here in this forum would help me:)
  14. III. CONCLUSION For the foregoing reasons and based upon the attached Statement Facts, the Plaintiff's Motion for Summary Judgment should be granted and a judgement entered against the Defendant in the amount of $5,141.11, plus interest in the amount of $1,863.44 from February 7, 2009, plus costs of filing lawsuit and service totaling $247.00. Dated this 21day of April 18, 2011 Gurstel Chargo, PA Jennifer E. Wiedle (Before their attorney was Andrew J. Westle) HERE'S THERE AFFIDAVIT: AFFIDAVIT OF CLAIM AND CERTIFICATION OF DEBT STATE OF NORTH CAROLINA CITY OF GREENSBORO Bank of America, NA Account Holder : My Name Account number: xxxxxxxxx xxxxxxxxx The undersigned, Ms. Bank Employee, being duly sworn, states and deposes as follows: 1. The Affiant is employed by Bank of America, NA successor in interest in Fleet Bank, MNBA Bank, Nations Bank ("Bank of America") in the position of Bank Officer and is duly authorized to make this affidavit. 2. That the original contract in this matter has been destroyed, or no loner accessible to Affiant and that this Affidavit is to be treated as the original document for all purposes. If any originals are discovered, they will be submitted to the court to review. 3. That the statements made in this Affidavit are based on the computerized and hard copy books and records of Bank of America, which are maintained in the ordinary course of business, with the entries in them having been made at or near the time of the transaction recorded. 4. That the account number xxxxxxxx (this one is my husband old savings account number from Bank of America) also known as xxxxxxxx also as was opened on 3/2/2007 by MY NAME whose social security number is xxx-xxx-xxxx. - How could a savings account became a credit card? That is my big question. 5. That there is due and payable from MY NAME as of 1/30.2009 the sum of $5,141.11 withstanding legally chargeable post charge-off interest, pursuant to the terms of the card member agreement with Bank of America. 6. That said agreement and account was, on 1/3/2009 sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise, or satisfaction of the said claim. 7. That as result of the sale of said account, CACH, LLC and/or its authorized agent, has complete authority to settle, adjust compromise and satisfy same that Bank of America has no further interest in this account for any purpose. 8. That to the best of Affiant knowledge, information and belief, there were no uncredited payments, just counterclaims or offsets against said debt when sold. FURTHER AFFIANT SAYETH NOT. DATED THIS January 15, 2010 Bank of America, NA Here's my questions: 1. Could I file a Motion to Strike with this affidavit, since they posted my social security number without my knowledge, and since the Plaintiff did not answer my Discovery to Produce Documents that I sent to them on October 2010? 2. Why is it that in their statement in LETTER C, Bank of America is always attached to Plaintiff? Can I oppose this? 3. How can I cross-over their MSJ? 4. Do I need to file my Motion to Oppose Summary Judgment even if their Motion in not in the Court yet? (I need a big help on this one). Any kind of help is very much appreciated. Thank you all for your time reading my long problem. Thank you very much!!!!
  15. Hello everybody, I was sued by CACH, LLC by their attorney Gurstel Chargo, PA from my old credit card from Bank of America. I never applied nor signed any paperworks to the OC (Bank of America), because we have a checking account with them before, they just gave me a line of credit (it was really my fault for using it). After I got laid off form my job in 2008, I become delinquent on my payment started June 2008, and by the time I get a job it already was charged off. I do not want it to happened but I cannot do much, my husband salary is not enough for us. I sent them a DV twice from the address that I get from my Credit Report, but has been returned back due to an invalid address (could I use this as my Exhibit?). By the way here's my case: 1. I was sued by CACH, LLC through their so-called attorney Gurstel Chargo, PA and received a summon on August 03, 2010 and I answered the summon and deny everything on August 4, 2010. Too bad that I was freak out because that was my first summon and I never got a chance to filed a counterclaim 2. I receive a Discovery request from the Plaintiff on September 2, 2010 and I answered it all by September 20, 2010. 3. I sent them my Discovery request on September 21, 2010. However, they only gave me their General Objection to answer to my Discovery Request and their Admission on October 14, 2010. 4. I sent a Motion to Dismiss with prejudice on december 6, 2010, but got denied by the judge. 5. Our case has been put to inactive on March 15, 2011 pursuant to Rule 38.1 d) & (e). 6. On April 21, 2011, I received an Motion for Summary Judgment from the Plaintiff. I called the Court Clerk yesterday, April 25, 2011 and she told me that they haven't received any MSJ from the Plaintiff. Just to make sure, I search the case online and I saw that the Plaintiff called today, regarding their MSJ, but the note said that NO MSJ has been received. 7. I really need a big help on this one. I really do not know what I am going to do. I am about to have a baby in a month and I do not know if I could make it to the Court or trial. Here's their Motion and Affidavit: MOTION: IN THE PIMA CONSOLIDATED JUSTICE COURT OF TEH STATE OF ARIZONA IN AND FOR THE COUNTY OF PIMA CACH, LLC PLAINTIFF vs. ME AND MY SPOUSE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT COMES NOW the PLaintiff by and through its attorneys, Gurstel Chargo PA, and pursuant to Rule 56(a) of the Arizona Rules of Civil Procedure, moves this Court to enter Summary Judgment in favor of the Plaintiff, on the grounds and for the reason that there is no genuine issue of material fact and Plaintiff is entitled to the entry of judgment as a matter of law. This motion is supported by a separate Statement of Facts submitted herewith, the accompanying Memorandum of Points and Authorities, and the pleadings of record herein, which are incorporated herein by this reference. MEMORANDUM POINTS OF AUTHORITY I. STANDARD FOR SUMMARY JUDGMENT The Plaintiff recognizes that in moving for summary judgment, they have the burden of providing the absence of genuine issue as to the material facts and that they are entitled to judgment as a matter of law. Nat'l Housing Indus., Inc. v. E.A. Jones Developing Co., 118 Ariz. 374, 576 P.2d 1374 (App.1978). However, once the Plaintiff has made a prima facie case, the burden shifts to the opposing party to produce evidence to show that there is an issue, . Where facts set forth in the MOtion for Summary Judgment are not controverted by the opposing party, they are presumed to be true. Watts v. Hogan, 111 Ariz. 563, 534 P.2d 741 (1975); W. j. Kroeger Co. v. Travelers Indemn. Co., 112 Ariz. 285, 541 P.2d 385 (1975). The party opposing a Motion for Summary Judgment cannot rest on mere allegation. Evans v. Bernhard, 23 Ariz. App. 413, 533 P.2d 721 (1975). II APPLICATION AND ARGUMENT A. Defendant 'stated account' signifies an agreed balance between the parties to a settlement; that is, that they have agreed after an investigation of their accounts that a certain balance is due from one another. But whether the agreement was express or implied is immaterial so long as it actual; the agreement itself, and not the manner of reaching it, being the important consideration." Chittenden & Eastman Co. v. Leader Furniture Co., 23 Ariz. 93, 94-95, 201 P. 843, 844 (1921). :where it is shown that the paries have adjusted and settled their accounts by striking balance, the amount thereof and acknowledge as due, and the law implies a promies to pay it." Id. at 96, at 844. If the account is rendered by one party, and the other party, upon examining it, makes no objection, an inference might legitimately be drawn that he was satisfied with it, as rendered. Such omission to object would therefore be legitimate evidence in proving an account stated. Trimble Cattle Co. v. Henry & Horne, 122 Ariz. 44, 47, 592 P.2d 1311, 1314 (1979). Evidence of the account stated and the parties' agreement is the Defendant's use of the account as evidenced by the monthly billing statements on the account (See Plaintiff's SOF #3 and Exhibit "A") attached hereto and incorporated herein by this reference). "The issuance of a credit [account] is but an offer to extend a line of open account credit...use of the [account] by the offeree makes a contract between the parties according to this terms..." Novak v. Cities of Service Oil Co., 149 N.J. Super . 542, 547-548 (law Div. 1977), City Stores Co. v. Henderson, 116 Ga. App. 114, 156 S.E. 2d 818 (App. Ct. 1967). "... it is use of the credit [account], and not the issuance, that create an enforceable contract..." Bank of America v. Jarcyzk, 268 B.R. 17, 22 (W.D.N.Y. 2001), Garber v. Harris Trust & Sav. Bank, 432 N.E. 2d 1309, 104 III.App. 3d 675, 60 III.Dec.410 (III.App.1982). The Defendant requested the issuance of the account as evidence by the credit application. The Defendant (s) used such credit to purchase goods and services. (See Plaintiff's SOF #2, Exhibit "A") Plaintiff and/or Bank of America, N.A. sent regular monthly statements on the account to Defendant(s). (See Plaintiff's SOF#3, Exhibit "A") Those statements show Defendant(s) obtained extensions of credit on the account, and that payments were made on the account. (See Plaintiff's SOF #3, Exhibit "A") At no time did Defendant(s) communicate to Plaintiff and/or Bank of America, N.A. either orally or in writing, of any unresolved dispute with specific charge which appeared on the monthly billing statements mailed to Defendant(s), thereby establishing an an account stated or an open account between Plaintiff and/or Bank of America, N.A. and Defendant(s). (See Plaintiff's SOF#3, Exhibit"A") Upon the account becoming delinquent, Bank of America, N.A. sold and assigned all of its rights and obligations of the credit account to Plaintiff. Plaintiff is therefore the holder in due course of the account. B. FEDERAL LAW REQUIRES CONSUMERS TO DISPUTE WITHIN SIXTY DAYS Pursuant to the terms and condition of the credit card agreement, and pursuant to 15 U.S.C. Sec. 1666 and Regulation Z Subsection 226.13((1) of the Truth Lending Act, a debtor must dispute any billing errors within 60 days from receipt of disputed charges by notifying the creditor in writing of billing errors preserve debtor's right. If the Defendant fails to object in writing pursuant to their right to dispute teh bill, s/he has waived the right todispute the balance due. Minskoff v. American Express, 90 F.2d 703, (2nd Cir. 1996). "Once a cardholder has established a credit card account, and provided that the card issuer is in compliance with the billing statement disclosure requirements of 15 U.S.C. 1637, the cardholder is in a superior position to determine whether the charges reflected on his credit card billing statements are legitimate. A cardholder's failure to examine credit card statements that would reveal fraudulent use of the card constitute a negligent omission that creates apparent authority for charges that would otherwise be considered unauthorized under TILA." See Transamerica Ins. Co. v. Standard Oil Co., 325 N.W. 2d 210, 215 (N.D. 1982) This negligent omission to dispute any charges in timely manner estoppes the Defendant form disputing the charges at a later date. Thus, Defendant's course of performance using the card and/or making partial payments demonstrated a willingness to repay the obligation. The Defendant is aware of this duty to review because it is set forth in both the Terms and Conditions and printed on the reverse side of every credit account statement. C. DEFENDANT IS LIABLE FOR THE DEBT INCURRED Defendant provided general denials to Plaintiff's complain, but has provided any evidence to show that she does not owe this debt (See Answer in Court file). by use of the credit card account, Defendant agreed to the terms and conditions of the agreement between the parties including the charging of fees and interest. (See Plaintiff SOF#3, Exhibit "A") Defendant has also failed to dispute any specific charge, fee, and/or interest amount on any of the billing statements. (See Plaintiff SOF#3, Exhibit "A") Defendant's failure to dispute specific charges on the billing statements resulted in an account stated between Plaintiff and/or Bank of America, N.A. and Defendant. Furthermore, Defendant failed to dispute charges as required by federal law and therefore has waived the right to dispute the charges. The Defendant has consented to the accuracy of the credit account based on the Defendant's failure to timely dispute any charges. A mere statement from the Defendant that she believes the fees and charges are not fair does not mean the Defendant does not owe this debt. Without any evidence from the Defendant(s) to show that this debt is not owed by Defendant(s), there is no dispute as to any issue of material fact.