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Instrument in Writing


Mordka v. Mordka Enterprises, Inc., 693 P.2d 953, 143 Ariz. 298 (Ct. App. 1984)


A contract is an agreement or instrument evidencing it.
Moore v. Smotkin, 79 Ariz. 77, 283 P.2d 1029 (1955).
The character of an instrument is not determined by the name given it, but by the general legal effect of its terms.
Holdren v. Peterson, 52 Ariz. 429, 82 P.2d 1095 (1938).

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While I was researching my case with the guidance of @BV80 and @debtzapper, I came across this case from 2013.

It sets a precedent that I could not find in the state of Oklahoma before and covers nearly EVERY facet of

a MSJ opposition a Pro Se Defendant could want.  Posted my thoughts on the interesting components of the ruling.  Someone may want to go over the first few paragraphs as it beats the tar out of the Banks right to enforce the note.  If I am mistaken or forgot something, let me know.




Points of Interest in MidFirst Bank v. Wilson:


¶ 6 - 8: MidFirst attempted to use an affidavit to establish standing to sue in their motion for summary judgment.  

The affidavits referenced several documents that were either not attached or were

not certified.


12 O.S. 2056(E) in part: "If a paper or part of a paper is referred to in an affidavit, 

a sworn or certified copy must be attached to or served with the affidavit."


Laymans Translation:

This means that when a moving party files any affidavit with the motion, it MUST include a 

certified or authenticated copy of any and all records records referenced in the affidavit.

If any record is missing or uncertified/unauthenticated, the affidavit is inadmissible.


¶ 9 - 10: 12 O.S. 2056(E) in part: "When a motion for summary judgment is PROPERLY made and SUPPORTED, 

an opposing party may not rely merely on allegations or denials in its own pleading; rather, 

its response must, by affidavits or as otherwise provided in this rule, set out specific 

facts showing a genuine issue for trial."


Rule 13© of the Rules for District Courts of Oklahoma, 12 O.S. 2011, ch. 2 in part:

"If there is a dispute regarding the authenticity of a document or admissibility of any 

submitted evidentiary material, the court may rule on the admissibility of the challenged 

material before disposing of the motion for summary judgment or summary disposition. A party 

challenging the admissibility of any evidentiary material submitted by another party may raise 

the issue expressly by written objection or motion to strike such material.


Laymans Translation:

Statute overrides Rules.  If the motion is properly made, i.e. the supporting evidence

admissible, then the non-moving party would have to file affidavits, evidence, etc. contesting 

the MSJ.  They simply cannot deny or call the MSJ falacious.  However, when the motion is IMPROPER,

as when evidence is inadmissible or there are faults in the motion, 12 O.S. 2056 does not apply.

In this case, Rule 13© steps in and permits the non-moving party to challenge the motion by simply

writing an objection or motion to strike.


Rule 13© of the Rules for District Courts of Oklahoma, 12 O.S. 2011, ch. 2 in part:

"Evidentiary material that does not appear to be convertible to admissible evidence at trial shall 

be challenged by objection or motion to strike..."


12 O.S. 2056 in part: 

"If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be 

attached to or served with the affidavit."


Laymans Translation:

While Rule 13© permits improperly admitted evidence to be admitted IF it can be converted by say 

getting the evidence certified or authenticated, 12 O.S. 2056 over rides the rule and makes the

admission of a sworn or certified copy mandatory.  They cannot replace the flawed documentation

with a good version without allowing the Plaintiff a motion to amend their pleading and delaying

the process.


¶ 11 - 12 Establishes that the chain of evidence, even inadmissible, still could not link the Plaintiff to the

Defendant specifically.  Court ruled against the motion for summary judgment for both lack of standing

and improper motion without a Motion in Opposition.


O.S. 12 2056(E) in part: 

"When a motion for summary judgment is properly made and supported, an opposing party may not rely 

merely on allegations or denials in its own pleading; rather, its response must, by affidavits or 

as otherwise provided in this rule, set out specific facts showing a genuine issue for trial. If the 

opposing party does not so respond, summary judgment should, if appropriate, be entered against that party."


Laymans Translation:

I may be reaching on this, but the court examined the motion and found on its own that the motion was

flawed.  While Defendants MUST oppose a PROPER motion for summary judgment and do so properly, the court

has the authority to determine a motion IMPROPER without a Defendant intervention.  This might be a thing

for people filing appeals against MSJs that were granted.

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State v. Cramer, 962 P.2d 224, 192 Ariz. 150 (Ct. App. 1998)


¶ 16 Furthermore, defendant's argument overlooks the distinction between a void judgment or order and one that is voidable.

See In the Matter of the Adoption of Hadtrath, 121 Ariz. 606, 609, 592 P.2d 1262, 1265 (1979).


A judgment or order is void if the court entering it lacked jurisdiction:

(1) over the subject matter,

(2) over the person involved,

or (3) to render the particular judgment or order entered.

Martin v. Martin, 182 Ariz. 11, 15, 893 P.2d 11, 15 (App.1994).


A voidable judgment is one in which the court has jurisdiction over the subject matter and parties but which is otherwise erroneous and subject to reversal. See Cockerham v. Zikratch, 127 Ariz. 230, 234, 619 P.2d 739, 743 (1980) (erroneous judgments are those which have been issued by a court with jurisdiction but which are subject to reversal on timely appeal).


A judgment that is voidable is binding and enforceable and has all the ordinary attributes of a valid judgment until it is reversed or vacated. Farms v. Carlsbad Riverside Terrace Apartments, Inc., 102 N.M. 50, 690 P.2d 1044, 1046 (N.M.App. 1984); Thrift v. Bell Lines, Inc., 269 F.Supp. 214, 219 (D.S.C.1967).



United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 559 U.S. 260, 176 L. Ed. 2d 158 (2010).


*1377 A void judgment is a legal nullity.

See Black's Law Dictionary 1822 (3d ed.1933); see also id., at 1709 (9th ed.2009).

Although the term "void" describes a result, rather than the conditions that render a judgment unenforceable,

it suffices to say that a void judgment is one so affected by a fundamental infirmity

that the infirmity may be raised even after the judgment becomes final.


See Restatement (Second) of Judgments 22 (1980); see generally id., § 12.

The list of such infirmities is exceedingly short; otherwise, Rule 60(B)(4)'s exception to finality would swallow the rule.


"A judgment is not void," for example, "simply because it is or may have been erroneous."

Hoult v. Hoult, 57 F.3d 1, 6 (C.A.1 1995); 12 J. Moore et al., Moore's Federal Practice § 60.44[1][a], pp. 60-150 to 60-151 (3d ed.2007) (hereinafter Moore's).


Similarly, a motion under Rule 60(B)(4) is not a substitute for a timely appeal.

Kocher v. Dow Chemical Co., 132 F.3d 1225, 1229 (C.A.8 1997); see Moore's § 60.44[1][a], at 60-150.


Instead, Rule 60(B)(4) applies only in the rare instance where a judgment is premised either on a certain type of jurisdictional error

or on a violation of due process that deprives a party of notice or the opportunity to be heard.

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Current Arizona statutes (A.R.S. §12-548) set the SOL on credit card debts to 6-years. This statute was amended in 2011 and prior to this amendment, Maricopa Superior Court hearing cases on appeal from Justice Court routinely viewed credit card accounts as "open" accounts subject to the 3-year SOL from A.R.S. §12-543.

Here are 4 cases from Arizona that support a 3-year SOL for credit cards debts incurred prior to the 2011 amendment. None of these cases are citable and they are not binding, so they cannot be used as "caselaw" but they give an idea of how to argue for a 3-year SOL on credit card accounts that defaulted prior to June 2011. Pay very special attention to the last case (Shannon). It's from 2013 (well after the 2011 amendment) and goes into great detail to find that credit cards are in fact "open" accounts and finds this one is subject to a 3-year SOL because it defaulted in 2009.

DDS Financial V. Walrod

LVNV V. Thompson

Capital One v. Rufficorn

Asset Acceptance v. Shannon

Edit: I spent some time reading appellate court rulings on credit card cases appealed from Justice Court and found this fairly recent one that used SOL as a defense.


The appellate court ruled essentially ruled that because the defendant waived its right to use SOL as an affirmative defense but also made a statement that a 6-year SOL was in effect at the time the lawsuit was filed.  I'm not sure why the court made this comment since the law (A.R.S. 12-505) seems pretty clear that the SOL is not revived by amendment of a law.


None of these cases are "binding" but if you are appealing a case from an Arizona Justice Court, it will be going to the Superior Court - same place that these rulings came from. My advice is to learn from the mistakes from the last case I posted.

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Re: Arizona Rule 26.1, ARCP and Rule 121, JCRCP aka initial disclosure

The mandatory exclusion of evidence in cases where no “good cause” has been shown for the failure to timely disclose can at times bring about results that are unduly harsh, overly punitive, and inconsistent with the purposes of the new rules.

We never intended such a result. In adopting the amendments to the rules, it was not our desire that substantive legal rights should automatically be forfeited on thebasis of harmless human failings. We believe the interpretation and application of Rule 26.1© should be accorded a “common sense” approach similar to that recently espoused in Bryan v. Riddel, 178 Ariz. 472, 277, 875 P.2d 131, 136 (1994). Although it istrue that “[t]he purpose of the mandatory exclusionary sanction is to put ‘teeth’ into the disclosure requirements of Rule 26.1(a),” id. at 476, 875 P.2d at 135, and to deter parties from practicing “litigation by ambush,” it was not meant to be a weapon of destruction in the hands of “win at all costs” litigators.

Allstate Ins. Co. v. O’Toole, 182 Ariz. 284, 287, 896 P.2d 254, 257 (1995).
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In Arizona, the waiver of a right is a question for trier of fact and precludes summary judgment until the court rules on the question of waiver.

Because there is not yet any caselaw on the subject, this comes in handy when JDBs charge interest on a debt. Most of the time the OC will not charge interest following charge-off. It should be argued that this (lack of) conduct by the OC constitutes a waiver of the right to charge interest and such a waiver shifts to the JDB when they purchase the debt.

The law is clear in Arizona. A waiver is an intentional relinquishment of a known right. Yuma County v. Arizona Edison Co., 65 Ariz. 332, 180 P.2d 868 (1947); City of Glendale v. Coquat, 46 Ariz. 478, 52 P.2d 1178 (1935); Albert v. Joralemon, 271 F.2d 236 (9th Cir.1959) (applying Arizona law). It may be express or inferred from conduct. Concannon v. Yewell, 16 Ariz. App. 320, 493 P.2d 122 (1972). Whether a right has been waived is a question of fact for the trial court. Home Owners' Loan Corp. v. Bank of Arizona, 54 Ariz. 146, 94 P.2d 437 (1939); Concannon, supra.

NORTHERN ARIZ. GAS SERVICE v. PETROLANE TRAN., 702 P. 2d 696 (Ariz. Ct. App., 1st Div. 1984)

[T]he courts of this state have repeatedly held that waiver may be inferred from conduct and is, therefore, a question of fact to be determined by the trier of fact.

Chaney Bldg. Co., Inc. v. Sunnyside Sch. Dist. No. 12, 147 Ariz. 270, 273, 709 P.2d 904, 907 (Ariz. Ct. App. 1985)

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Found this case law for New York against AMEX regarding their custodian of records. American Express was up against a Pro Se defendant and lost.


The judge involved Noach Dear has come under fire recently as being too much of a consumer advocate, so might want to follow that.


American Express Bank, FSB v. ZWEIGENHAFT, 2013 N.Y. Slip Op 50127 (Civ. Ct. 2013).
Highlights (see the link above for full detail)
Mr. Kier's testimony was directed solely toward qualifying Plaintiff's proposed exhibits as "business records" subject to an exception to the hearsay rule and he, not unexpectedly since all of the relevant events likely took place outside the presence of Amex personnel, did not claim to have any first-hand knowledge of the events underlying Amex's claims against Mr. Zweigenhaft. His testimony, however, failed to provide sufficient foundation to admit the Cardmember Agreements and statements offered as evidence by Amex and the documents were excluded.
everybody in the chain of information needs to be under a business duty to record and/or report the event. A credit card is generally used at a vendor who transmits information reflecting the transaction. This Court does not know who (or more likely, whose computer system) is the recipient nor whether there are intermediaries prior to the credit card company itself being alerted. Credit card statements can, thus, not be deemed to fall within the business records exception absent sufficient proof that everyone in the chain of information — from the vendor all the way through the generator of the statements — must be acting within the course of regular business conduct. Only once that hurdle is overcome can a court turn to other important aspects of its analysis such as how the document is generated, by whom, when, and for what purpose.

In the absence of a sufficient foundation, Plaintiff's proposed exhibits did not qualify as business records and were inadmissible hearsay. Accordingly, they were excluded from evidence in their entirety.

Edited by CCRP626

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