HeadMongoose

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About HeadMongoose

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  1. The lawyer sent me a letter today threatening garnishment and all that jazz if I don't make arrangements to pay within 10 days. All they did was reference the case number and I still haven't received a thing from the court. I've had an insanely busy work schedule lately and haven't had time to head to the court during their business hours to get information. Too bad I couldn't just quit work for 10 years and live on savings or something like that. I'd really like to stick it to these JDBs and their attorneys.
  2. Well again I haven't heard anything from the court in ages. The whole process has been lacking professionalism, from spelling errors on documents to a lack of organization. Are all all court systems like this these days? I can understand a huge load of cases going through the system but for crying out loud get things right! I'll head to the court in the next day or so and see what information they have and compare it to mine. We'll see if anything is missing.
  3. That's a good idea, I hadn't considered trying to bargain with them. I suppose it would be preferable to pay them something in order to avoid damaging my credit for 10 years. So I suppose now I must wait for documentation to come from the court. I've emptied my bank accounts as a precaution since they'll doubtlessly get to work on garnishment and all that garbage as soon as they can. Ugh, this is NOT how I wanted to start out 2013. First my Pop has a trip to the hospital after fainting and busting his head open, now I find out this JDB apparently won.
  4. Nope, never got that far. They filed for MSJ, I replied, and I haven't heard anything at all from anybody since I received their paperwork for the MSJ. I made the mistake of not watching my case status so I suppose I've missed some opportunities to combat this. It's surprising to me because the court had been prompt about sending their paperwork regarding the case prior to this. I assumed everything was fine and was waiting for February to roll around. Now I see this Adjudicated thing was entered November 26th but haven't heard a thing from the court or Cavalry in all the time since then.
  5. Bad news for me folks, looks like I failed against Cavalry. Just checked my case and near the end of November the case status was changed to "Adjudicated" (though I've received nothing from the court about this yet). The trial was set for February but Cavalry made a motion for Summary Judgement. I responded of course but apparently I didn't get it right. So now I guess I'll have to look into an appeal or perhaps consider bankruptcy. The amount of money we're talking is a bit less than $10,000 but I really don't feel like forking any cash over to a JDB.
  6. This Court should also find that no reasonable trier offact could find for the Defendant on the issue of breach. The Plaintiff has produced a final billing Statement that reflects a balance due and owing on the Defendant' s account at the time of charge-off. This billing statement was also sent to the Defendant's attention, by the Original Creditor, and has never been disputed. The Defendant offers no explanation regarding the existence of this billing statement, nor does the Defendant deny its authenticity or accuracy. This billing statement proves that the Defendant failed fully to repay his indebtedness, as required by the terms of the Agreement. This inference is further supported by the aforementioned Statement of Account. Again, the Statement expressly indicates the existence of an outstanding balance. The Defendant has failed to offer any evidence or testimony that would negate this conclusion. Hence, there is no genuine issue of material fact with respect to the Defendant's breach of the Agreement. Finally,no reasonable trier of fact could find for the Defendant on the issue of damages. The Plaintiff has presented a set of the terms and conditions surrounding the Defendant's use of the revolving credit account. The terms of the contract specifically allow the Plaintiff to recover the sums borrowed, in addition to interest, attorney's fees and court costs. Also, the Plaintiff has disclosed a Bill of Sale evidencing the chain-of-title and demonstrating that the Plaintiff currently owns the Defendant's account. The record shows, without contradiction, that the Defendant is indebted to the Plaintiff for the amounts to which the Original Creditor was entitled; namely, the amounts prayed for in the Plaintiff's Complaint. No reasonable trier of fact could come to a conclusion contrary to those advanced by Plaintiff with respect to the Plaintiffs damages. Therefore, there are no genuine issues of material fact that would preclude summary judgment. B. The Plaintiffs Prima Facie Breach of Contract Claim and the Defendant's Failure to Raise a Valid Legal Defense, Entitles the Plaintiff to Judgment as a Matter of Law. The Plaintiff is legally entitled to recover the sums borrowed by the Defendant, from the Original Creditor, together with attorney's fees and court costs. Where the parties bind themselves by a lawful contract and the terms of the contract are clear, the contract must be given effect as written. Estes Co. v. Aztec Construction, Inc., 677P.2d939 (Ariz.App.1983). The aim of damages in a contract action is to yield the net amount of losses caused. Northern Ariz. Gas Service, Inc. v. Petrolane Transport, Inc., 702 P.2d 696 (Ariz. App. 1984). When attomey's fees are claimed pursuant to a contractual provision allowing such fees, an award of attorney's fees to the successful party is mandatory rather than discretionary.See Coldwell Banker v. Camelback Office Park, 751 P.2d 530 (Ariz. 1987). Here, the documentary evidence unequivocally demonstrates that Defendant has failed to repay all of the money borrowed under the revolving line of credit. The agreement explicitly requires that Defendant do so. Under Arizona's prevailing law ofcontracts, the Original Creditor was entitled to recover the losses caused by the Defenda.nt's breach. These losses include the amount the Defendant borrowed and failed to repay tmder the Agreement. Also, these net losses include any interest, over-limit charges, as well as subsequent attorney's fees and court costs incurred in the prosecutionofthis case. Under a valid assignment, an account debtor is liable to pay the assignee after receiving notice of the assignment; an account debtor who disregards the assignment and makes a payment elsewhere remains liable to the assignee. See Business Financial Services, Inc. v. AGN Development Corp., 694 P.2d 121 7 (Ariz. App. 1984). After receiving assignment of the account at issue, the Plaintiff made demand upon the Defendant, but the Defendant failed to repay the Plaintiff. Therefore, the Plaintiff is legally entitled to recover the sums borrowed by the Defendant, from the Original Creditor, together with attorney's fees and court costs. Furthermore, The Defendant has failed to raise, reserve, or prove any viable affirmative defenses that would excuse his breach or otherwise bar Plaintiffs claims. The Plaintiff is entitled to judgment, as a matter of law. III. CONCLUSION For the foregoing reasons, the Plaintiff respectfully requests that this Court enter judgment in the Plaintiffs favor and against the Defendant. The Plaintiffrequests an award ofprincipal damages in the amount of $5,XXX.XX, accrued interest, accruing interest at the contractual rate of24.99percent, per armum, together with court costs and attorney's fees.
  7. Here's what they sent: MOTION FOR SUMMARY JUDGMENT The Plaintiff, Cavalry SPV I, LLC, (hereinafter "Plaintiff '), by and through counsel undersigned, hereby files this Motion for Summary Judgment against the Defendant XXXXXXX XXXXXXXX (hereinafter "Defendant"). There are no genuine issues of material fact and Plaintiff is entitled to judgment as a matter of law. The Defendant having fully answered, and discovery having been made, this Motion is both timely and proper. Therefore, Plaintiff respectfully requests that this Court enter summary judgment in favor of the Plaintiff. This Motion is supported by a separately filed Statement of Facts in Support of Motion for Summary Judgment and by the following Memorandum of Points and Authorities: MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS The Defendant entered into a revolving credit agreement (hereinafter "Agreement") with Bank of America/FIACardServices, NA.(hereinafter "Original Creditor"),promising to make payments pursuant to the terms and conditions of such Agreement. (Plaintiff's Separate Statement of Facts, hereinafter "PSOF", ¶1). The Defendant made purchases using this line of credit but failed to repay the debt pursuant to the terms of the Agreement with the Original Creditor, making the account past due and placing the Defendant in breach of the Agreement. (PSOF at ¶ 2). Thereafter, the Original Creditor transferred its rights, title and interest in the Agreement to Cavalry SPV I, LLC.(PSOF at ¶ 3). At the time of charge-off and acquisition by the Plaintiff the Defendant's balance was $5,XXX.XX, and accruing interest at the rate of 24.99 percent per annum. (PSOF at ¶ 4). The Agreement provided that the prevailing party in a law suit would be entitled to court costs and reasonable attorney's fees. (PSOF at ¶ 5). On May 1, 2012, the Plaintiff filed its original Complaint with this Court, alleging breach of contract, and praying for principal damages in the amount of $5,XXXX.XX, accrued interest and accruing interest, together with attorney's fees and court costs, (PSOP at ¶6). The Defendant filed an Answer on or about May 29, 2012, denying any knowledge of the Plaintiff's allegations. (PSOF at ¶ 7). Thereafter, Plaintiff served its Initial Rule 26.1 Disclosure Statement on the Defendant and began the process of disclosing its witness list, legal theory, billing statement(s), Cardholder Agreement and Bill of Sale. (PSOF at ¶ 8). II. LAW AND ARGUEMENT [sic] The lack of a genuine issue of material fact, and the Plaintiffs legal entitlement to judgment, warrants the Court's entry of summary judgment in favor of the Plaintiff. The Arizona Rules of Civil Procedure, provide that "the judgment sought shall be rendered forthwith if the pleadings, deposition, answers- to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . ." Ariz. R. Civ. P., Rule 56©(1) (2010) (emphasis added). In Arizona, the legal standard for summary judgment is well settled. When the facts presented, taken in light of the law, make such a case that the trier cannot come to a reasonable conclusion contrary to the theory presented then the Court must enter judgment in favor of the movant. See Orme School v. Reeves, 802 P.2d 1000, 1008 (Ariz. 1990). In the present matter, there are no genuine issues of material fact and the Plaintiff is entitled to judgment as a matter of law. A. The Defendant Has Failed to Raise a Credible Challenge to the Plaintiffs Claim for Breach of Contract and Therefore Has Not Raised a Genuine Issue of Material Fact. Arizona courts have found that the opponent of a motion for stunmary judgment "may not stand idly by in the vain hope that a mere scintilla of evidence will blossom into a genuine issue for trial." See Orme School, 802 P.2d at 1004-05. Rather, an opponent for summary judgment "must show that evidence is available which would justify a trial of the issue." See Grand Intern. Broth. of Locomotive Engineers, 421 P.2d 520, 523-24 (Ariz. 1966). Accordingly, the Arizona Court of Appeals has held that"[w]hen the moving party present sworn proof of specific facts that negate the allegations in the adverse party's pleading, the adverse party is obliged to respond as provided in Rule56 with proof of specific facts showing that there is a genuine issue for trial..." Gomezv. Great American Ins. Co., 548 P.2d 1206, 1208 (Ariz. Ct. App. l976). "lf he fails to do so, summary judgment must be entered against him if appropriate under the applicable substantive law." Q. ln this case, when all of the evidence presented by the parties is viewed under the summary judgment standard, it is innninently clear that no reasonable trier of fact could find for the Defendant on the issues of contract formation, breach and resulting damages. No reasonable trier of fact could find for the Defendant on the issue of formation of the contract. The various billing statements proffered by the Plaintiff prove the formation of the contract at issue. These billing statements were sent to the Defendant's attention by the Original Creditor and have never been disputed. The Defendant offers no explanation regarding the existence of these documents, nor does the Defendant deny their authenticity. These billing statements demonstrate that the Defendant utilized the credit line extended by the Original Creditor to make purchases. The only reasonable inference is that the Defendant accepted the Original Creditor's offer to form a revolving credit contract. This inference is further supported by th Statement of Account. The Statement expressly indicates the accuracy and existence of the Defendant's revolving credit account. The Defendant has failed to offer any evidence or testimony that would contradict the conclusions of the Plaintiffs records or the Plaintiffs Complaint. Hence, no reasonable trier could find for the Defendant on the factual question of whether a contract was executed.
  8. For the foregoing reasons, Defendant, Head Mongoose, respectfully submits that the Court should deny the Plaintiff's Motion for Summary Judgment, filed herein by Cavalry SPV I, LLC. and prays for Dismissal of the Complaint by the Plaintiff with Prejudice. Respectfully submitted this 31st day of October 2012. CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing REPLY AND OPPOSITION to Plaintiff’s MOTION FOR SUMMARY JUDGEMENT in the Justice Court, Court Case No.: XXXXXX-XXXXXX was mailed to Plaintiff’s Attorney, this 31st day of October, 2012 to: JDB's Attorney.
  9. Comes now the Defendant, Head Mongoose, Pro Se, and files this REPLY AND OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment filed by Plaintiff, Cavalry SPV I, LLC (hereinafter "Plaintiff") as follows: The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law. The Plaintiff lacks standing to sue the Defendant, since at no time did the Defendant cause any harm to the Plaintiff. The Defendant has never had any sort of relationship, business or otherwise, with the Plaintiff. At no time did the Defendant become indebted to the Plaintiff, as such, the Defendant has no obligation to the Plaintiff, monetary or otherwise. Plaintiff has failed to discharge this responsibility in the MOTION FOR SUMMARY JUDGEMENT and the attached PLAINTIFF’S SEPARATE STATEMENT OF FACTS IN SUPPORT filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “there are no genuine issues of material fact and Plaintiff is entitled to judgment as a matter of law.” Motion for Summary Judgment should be denied. Procedural History Defendant received the Plaintiff's Summons on 05/19/2012. Defendant answered the request on 05/XX/2012. Defendant sent Request for Production of Documents to Plaintiff on 06/XX/2012 (Exhibit "A" proof of mailing) as of the date of this Reply, the Plaintiff has failed to respond. Documents requested from Plaintiff included any documentation of relationship between Plaintiff and Bank of America/FIA Card Services, N.A., the alleged Original Creditor, such as the original signed application establishing the account, charge slips bearing defendant's signature which establish use of the account, the original written agreement in which defendant allegedly assented to the terms of the account, a complete history of the account from day one, documents establishing the legitimacy of the balance sought, any payment history, and any breakdown of the sum requested by plaintiff. Defendant cannot make a legitimate defense on claims by the Plaintiff that are incorrect, untrue, and undocumented. Defendant sent Interrogatories Directed To Plaintiff on 06/XX/2012 which have gone unanswered. (Exhibit “A” proof of mailing) Mediation was set for 08/XX/2012. Defendant received Notice of Court Date on or about 09/XX/2012 (Trial scheduled for 02/XX/2013). Defendant received Motion for Summary Judgment from the Plaintiff's attorney on 10/XX/2012. STATEMENT OF FACTS Defendant submits this Statement of Material Facts in support of his Opposition to Motion for Summary Judgement. As this Opposition pierces the pleadings and tests the sufficiency of Plaintiff’s evidence, Plaintiff, who bears the burden of proof, must submit a record of admissible evidence to grant summary judgment. 1. There is no admissible evidence as to the purchase by Plaintiff of the alleged account which is the subject of this Complaint either directly from Bank of America/FIA Card Services, N.A. (hereinafter "Original Creditor") or through intermediate debt buyers. 2. Defendant has not made payments due to the fact that Defendant does not owe the alleged debt, and no evidence has been provided to prove otherwise. 3. There is no admissible evidence as to the debits, credits, and payments associated with the alleged account, including the fees, charges, and interest from which to determine the amount purportedly due. 4. The Plaintiff has failed to produce a signed contract proving such. 5. There is no admissible evidence of true and correct copies of monthly statements. 6. There is no admissible evidence regarding the mailing of any written agreements by the Original Creditor to Defendant. 7. There is no admissible evidence regarding the mailing of any billing statements by the Original Creditor to Defendant. LEGAL SUPPORT This is a suit by a debt-buyer asserting that it is the owner of an alleged Bank of America/FIA Card Services, N.A. account in default. Plaintiff, Cavalry SPV I, LLC, filed a Complaint alleging (among other things): "Defendant(s) are residents of the State of Arizona.” "Defendant(s) made, executed and delivered to Bank of America/FIA Card Services, N.A., a revolving Credit Account Application (Agreement).” 1. Defendant Admits he resides in the State of Arizona. 2. Defendant disputes Plaintiff's second allegation as no admissible evidence of the existence of an agreement between Bank of America/FIA Card Services, N.A. and Defendant has been provided. In addition, Plaintiff has also failed to prove that Bank of America/FIA Card Services, N.A. is Plaintiff's Assignor. "Summary judgment should not be granted where there is a genuine disputed issue of material fact or even the slightest doubt as to the facts." Farmers Ins. Co. of Arizona v. Vagnozzi, 675 P. 2d 703 - Ariz: Supreme Court 1983 The Plaintiff lacks standing to sue the Defendant since at no time did the Defendant cause any harm to the Plaintiff. "As a matter of sound judicial policy, however, this court has long required that persons seeking redress in Arizona courts must first establish standing to sue." Bennett v. Napolitano, 81 P. 3d 311 - Ariz: Supreme Court 2003. The summary judgment standard is well settled. Plaintiff, as the party bearing the burden of persuasion at trial, must present admissible evidence to sustain its burden as to each element of its cause of action. Plaintiff’s Motion for Summary Judgement should not be granted as there are genuine disputed issues of material facts. "We will not affirm a grant of summary judgment, however, even in the absence of controverting evidence, if the motion and evidence filed in support of the motion for summary judgment are insufficient to show that no material issue of fact exists or that the movant is entitled to judgment as a matter of law." United Bank v. Allyn, 167 Ariz. 191, 194-96, 805 P.2d 1012, 1015-17 (Ct.App. 1990) Plaintiff, Cavalry SPV I, LLC, bears the burden of proof to establish that it is the Assignee of Bank of America/FIA Card Services, N.A. and that Bank of America/FIA Card Services, N.A. assigned the account in question to Cavalry SPV I, LLC. There is no evidence in the form of a Bill of Sale or Bill of Assignment that Bank of America/FIA Card Services, N.A. assigned any account allegedly owed by Defendant to Plaintiff. "It is, however, hornbook law that in order to effect a legal assignment of any kind there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified." Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977 "We therefore hold that the basic elements of a legal assignment are so lacking in this case that we can find no basis in the record on which to conclude that Certified Collectors, Inc. has any right to bring an action on this claim as the real party in interest." Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977. Absent a valid assignment from Bank of America/FIA Card Services, N.A., Plaintiff has failed to prove ownership of any account allegedly owed by Defendant. Wherefore, Plaintiff has failed to prove standing to sue. Particularly significant to what evidence Plaintiff must submit is Rule 602. Lack of Personal Knowledge: "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Read together, these rules require that: 1. Plaintiff has failed to produce a competent witnesses with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of any and all hearsay materials, and; 2. The admissible records be sufficient to carry Plaintiff's evidentiary burden. Proof of Contract and Terms: Regarding the contract, there must be written terms. The Truth in Lending Act at 15 U.S.C. § 1637(a) requires the essential terms of a credit card account be disclosed in writing. In addition, creditors are required to post on the internet "the written agreement between the creditor and the consumer for each credit card account under an open-ended consumer credit plan." 15 U.S.C. § 1632(d)(1). Even in the absence of federal law, Plaintiff cannot prove the basis for any finance or interest charges, late fees and other charges, payment due dates, or even whether Defendant breached an obligation, without a contract. Consequently, someone with the requisite personal knowledge must be able to identify the controlling contract and, in the absence of Defendants' signature, demonstrate what conduct, if any, demonstrated mutual assent to the purported terms. In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of a contract that was allegedly formed before the Plaintiff’s alleged ownership of the alleged account. Turning to breach and damages, Plaintiff must have a competent witness who can establish that each charge was authorized because the Truth in Lending Act imposes that burden on Plaintiff. 15 U.S.C. § 1643(. CONCLUSION Plaintiff's failure to come forward with sufficient evidence as to each element of its prima facie case compels the denial of summary judgment for Defendant.
  10. So Cavalry has filed for Summary Judgment and I'm wondering, shall I file a Reply and Opposition with a Memorandum in Support? Or just the Reply?
  11. I'm a bit confused, shall I file a REPLY AND OPPOSITION as well as a Memorandum in Support? Or just a Reply?
  12. Thanks for the tip, I never knew about Google Scholar. Certainly makes it easier to find more relevant info. Thanks again!
  13. Yeah, I've tried finding examples on the forum and around Google but nothing that quite applies to me has come up.
  14. I've searched the forum but am having trouble finding examples to use. They've also not answered my Discovery requests, do you know of examples I can cite for that as well?