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Served and need to answer, questions..


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Hi all, I would sure appreciate some help in sorting this mess out. I have been reading through the many posts on this site. (Feeling a little over-whelmed). .. Here is my info.

Who is suing you? Those nasty JDB types

For how much? Over $14K

Original Creditor? (Major CC)

How do you know you are being sued? :confused: I was served a Summons, Complaint, and Certificate of Compulsory Arbitration this recently

How were you served? I believe he was a "server" person And yes I was served at my home.

Plantiff: Nasty CO JDB, , -v- Defendants: Strawberry Bird and JOHN DOE [Our Last Name], and JOHN DOES I-III AND JANE DOES I-III. ( I REALLY want to know who all those people are).

(Fyi, they have never included my husband on any paperwork before, the CC was in my name only. {AZ is Community Property State}, and exactly who are the DOEs and why so many listed on the Summons? Do I have to file an answer for each and if so wouldn't that be considered wasting the Courts time since it the CC was only in my name and I only have 1 husband?)

What was my previous correspondence? Several very harrassing phone calls by their hired "lawyer" hands, letters from them to me, and me sending them certified letters - to include VOD, Letter of Intent to Sue, a conditional settlement offer, rescission of ach debits...

Original VOD was sent to them March 14, 2004. Finally in March of 2006 (yes that is 2 years later) I received a packet from them with a letter that sited Chaudhry v Gallerizzo.. 3 copies of CC Statements ( May, June, July 2003 all showing deliquincies), the charge off slip from OC, a sheet with the 3 illegal payents mentioned below, and of course, an affidavit of Claim and Certification of Debt, duly sworn by Ms. T an employee of magnUS Services, bla-bla. Within that letter it gives the custody line. AND it was actually signed by Ms T. 4 months Before it was finally sent to me.

Where do you live? Yuma, Arizona

When is the last time you paid on this account? To OC in Spring 2003, CA took payment in July 2004, and then they took 2 more partial payments in Aug and Sept of 04. (Note: I originally agreed to the first payment but Before it was taken I called and cancelled and followed with a CMRRR Rescission letter which they ignored. They proceeded to take 2 more payments after a 2nd rescission letter and many phone calls. I have SEARCHed hard and heavy to find out if these stolen payments to the CA restarted the SOL, Does Anyone know absolutey?)

What is the status of case? It looks to have been filed with Clerk and I have 20 days from then to file an answer

Have you disputed the debt with the:

credit bureaus?- No,

original creditor? - not in writing. on the phone I denied the amount was correct.

collection agency?- yes

Did you request debt validation before suit was filed? Yes, see above

The charges::

removing what complaint says as I am not getting any answers and feel it is too much info if the wrong eyes are looking...

WHEREFORE, Plaintiff requests Judgement against the Defendants, and each of them, as follows: (note how I suddenly multiplied again)

(what they want)

No interrogatory was sent.

Exhibit A- Standard CC contract

EXHIBIT B - Charge off for OC..

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Now... Arizona SOL for open ended accts is 3 years..

12-543. Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:

1. For debt where the indebtedness is not evidenced by a contract in writing.

2. Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, (What does this part mean?) but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon.

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

-----

Considering my first post, am I SOL? :dunno: The suing JDB recv partial payment in 2004.

Regarding those same payments the are legally required to send notification that they are going to debit the account and they did not. They actually sent letters that were BACK-dated trying to cover their hairy butts. I have both the envelopes and the letters but can't actually prove which letters came in which envelopes.. hmmp.

I have to put together an Answer, and have been going through one very long sample from this site, but would appreciate any specific help on the info so far..

Thanks much,

Strawberry Bird

I will post more on the issues too, but my brain is tired ::rockon::

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I do understand why they suddenly decided to name my spouse i.e. JOHN DOE [our SirName], but why the slew of other DOES? In a community property state is there a way to break that tie since they did not give the spouse the opportunity to settle (or pay the debt) before naming him in the suit?

Nothing that he owns has my name on it.. the house, vehicles, etc are all in his name only.

Thanks!

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The WestGroup.com site has the rules. Wow though.. tons of them. I am not sure I am up to all of this in such a short time.. is anyone out there willing to help me?

I have to have the answer done before April 8... I have posted the Complaint above and details. Where do I really start? How do I know look for things that I can use to get this dismissed?

In Arizona, does the SOL restart when I made those payments in 2004?

JDB and their assigns actually broke many FDCPA rules back then but I was too afraid to take them to court.

Thanks for any input!

Strawberry Bird

:jessica:

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I appreciate the help. I am in information over-load as it is. I only have a few more days to get this together. When you look at the Complaint above it just seems odd they way they wrote it, so when I look at how to answer etc. I am not sure where to begin.

I was hoping for support here from someone who had some experience under them.

I guess my communication has not been clear?? Or maybe too much info, lol.

QUESTION::

I live in Arizona the SOL for Open end accts is 3 years. JDB lawyer collectors got me to make a couple of payments in 2004. (I tried to cancel payments before they were removed from the acct, but they took them anyway) At any rate, in Arizona did this start the SOL time again, OR is it from when the payments were stopped in 2003 to original creditor?

I have looked everywhere and can't seem to find a solid answer to this..

Thanks

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1) Get an attorney. www.naca.net is a good place to start. Do this NOW.

2) I am NOT an attorney, but I think the fact that you made some payments to this CA might be screwing you. A court may look at that as admitting the debt is yours and that the amoutn is correct. A payment to the CA (you say the first of the 3 you made voluntarily) may very well have reset the SOL.

3) Get an attorney!

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1. Plantiff is a company duly organized and existing under the laws of the State of their State

2. Defendants are residents of [My County] St of AZ and at all times material hereto the Defendant [strawberry Bird] was acting on behalf of her marital community.

3. Defendant DOES are fictiously named for the reason that Plaintiff is unaware of their true and correct names. This Complaint will be ammended to insert their true and correct names when the same are ascertained.

______

Everything I have read on this site and a couple of others say to answer and deny, admit or w/o sufficient information.

- ANSWER -

Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the statements contained in paragraph 1 of the Complaint, .... (suggestions how do I finish? I don't know if it is true or not and it is not an allegation. They are stating as fact regarding the plaintiff. So I am confused what to do with it.)

Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the complete statements contained in paragraph 2 of the Complaint, and based on that denies generally .. (So here is the thing on paragraph 2.. I do NOT know if all defendants live in my County, State and hereto the Defendant Strawberry Bird was acting in behalf of her marital community.. AHHH, so I do deny it. I was confused initially looking at it because they used my name so I was trying to figure out whether I could deny it w/o purging myself.

But because they used the term Defendants and the Complaint names all of those extra JOHN and JANE DOEs I - III (they have a Big family) I don't know who they are or where they live. At this point it is pure speculation who the JOHN DOE (SirName) is as well.. could be anybody as there is no reference to his relationship to Strawberry Bird.. right? xangelx

NOW on 3, I would do the same because I Don't know who they are either. Is that correct?

So if I am on the right track here, what specifically should I be concentrating on with the first 3 paragraphs as far as Affirmative Defenses, Counterclaims, Motions, and Discoveries...

Am I correct that ALL of that HAS to be in or with the Answer?

Thanks

Stawberry Bird

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I was afraid of that restarting thing.

I have letters CMRRR'd to the CA rescinding the ACH payment.

At the time they told me they were lawyers representing the OC. I had been in dispute (verbally) with them regarding the amount they claimed I owed when they did the charge off.

So when the JDB called and said that the OC was going to sue if I did not set payments up right then, and that they would continue to investigate the amount issue... I set it up. BUT, I then called Within a few days of that and before the first payment -- because I Knew and had told the "lawyer" there was not going to be enough funds when they wanted to take the payments -- and told them to cancel the ACH payment.

They didn't and not only did they take that one, they took 2 more. I have 2 CMRRR's proving the rescinsion and stating the reasons. In the second one, I told them I would sue them if they continued to steal my money. I tried to get my bank to help stop them but they said there was nothing they could do. (oddly enough) That is why CA's have you set up via ACH.

I had plenty on them at that time, but I was afraid to sue because I figured they would surely counter-sue. The debt only 1 year old at the time.

What I do NOT understand is the Statute clearly states ;; There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions

The "cause of action accurues" in Feb 2003 at first delinquency.. why does it start over with partial payments? They can actually sue me for the balance starting 30 days of the first missed full payment.

Strawberry Bird

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I do not understand how come that SOL issue is such a secret. Some case somewhere has tested that.. I guess I just need to find it, lol. Crazy that no one knows whether the SOL clock starts at orig delinquency or restarts with every payment even if it remains deliq with those payments..

It's a mystery xdancex

SB

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Here is what it says:

12-543. Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:

1. For debt where the indebtedness is not evidenced by a contract in writing.

2. Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon.

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

My issue is I do not know if I can use it as a Motion to Dismiss or not... If those partial stolen payments restarted the SOL....

IF I did put it in as a Motion to Dismiss.. Wouldn't the plaintiff have to prove it was NOT time-barred?

SB

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  • 2 weeks later...

Here is what I have .. still really confused. You know what they say from the first point that you do not understand you stop learning.. So because I have never really understood the Process I will be going thru I spent too much time doing things I probably didn't need to be doing yet..

Here is my answer, etc.. What I am not sure about.. is the counter claims.. The plaintiff's various atty's (not the one representing) have tried collecting but most violatons were made Over 1 year ago.. and mine is a rather complicated issue since I did initially make a couple of payments to them (however those were done on the belief that I was dealing with the OC because that is what they told me.. and done because they said if I didn't do it right then OC was going to sue.. so in my ignorance I did). I was arguing with OC prior to that regarding balance, interest rate, and many other issues. I was unaware they had Charged off .. AT any rate.. the LAST communications were:

Lawyer not license to do ANYthing in AZ sent collection. I sent back letter saying :: hey stupid this debt is awaiting validation that is LONG over due and to date have not recvd validation.. so get it or go away. A year later (march 06 they send me a "package" with 3 old statements from OC. A sheet with a list of the 3 payments I made..(literally all that was on it was 3 lines with the date and amount of each payment.) nothing else. And affidavit and cert of debt .. that was notorized a full 3 months before they sent it to me AND it really only says yes she had a debt with OC in the final amt of $. OC sold debt to JDB1 who sold it to JDB2 who sold it to JDB now plaintiff.. all supposedly on the same day.. and a letter saying here is your Validation and btw we only need to say you owed citing the Chaudhry case. whew. Then in June 06 they sent a letter to collect. I have a letter that I sent back to them, but I didn't CMRRR it.. don't know why not. I had most of the other communications.

Here is my answer and affirm defense.. so suggestions on counter claims . I only have a couple of more hours and I have to get this to plaintiff atty and filed at court.

(posting separate due to length.)

Thanks

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Pretty standard.. I decided to hold on using their exhibits to prove my SoL. Judge can see that. and it leaves me to object to them easier.

1. Defendant(s) denies all allegations herein unless expressly admitted, and demands strict proof thereof.

2. As to and for Paragraph I, Defendant(s) is without sufficient information to form an opinion to the truth or accuracy and leaves Plaintiff to proof. Defendant(s) demands strict proof.

3. As to and for Paragraph II, we admit that defendant ME resides in MY County, State of Arizona. However, Defendant is without sufficient information and knowledge to form an opinion as to the truth or accuracy as to the remaining defendants names and / or residences, and furthermore denies acting for or on behalf of any marital community and leaves Plaintiff to proof. Defendant(s) demands strict proof and their relationship to this action.

4. As to and for Paragraph III, Defendant is without sufficient information or knowledge to form an opinion to the truth or accuracy and leaves Plaintiff to proof. Defendant(s) demands strict proof as to the identity and residency of all John Does and Jane Does.

5. As to and for Paragraphs IV, V, VI, VII, VIII, and IX of the Complaint, Defendant(s) is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations or statements contained therein, and based on that denies generally and specifically each and every allegation and statement contained therein with the exception of Defendant MY name being correct and true. Defendant(s) demand strict proof on each point.

6. As and for a First Defense; Plaintiff’s action is time-barred under §ARS 12-543 the laws of Arizona. As stated under the Truth in Lending Act §103 (i) credit cards are considered open end agreements. This action is not founded on a contract in writing where evidence of liability consists of a written or signed account and security agreement

7. As and for a Second Defense; Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making it difficult or impossible for the defendant to find witnesses or evidence, or the evidence necessary to provide for Defendant's defense has been lost or delayed.

8. As for and for a Third Defense; 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 is not in writing and signed by any of the Defendants or by any other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. And it is likely that the allege contract would have would have been for more than 1 year.

9. As and for a Fourth Defense; Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

10. As and for a Fifth Defense; Plaintiff’s Complaint includes references to alleged agreements made outside the alleged written contract, violating the Parole Evidence Rule.

11. As and for a Sixth Defense; 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.

12. As and for a Seventh Defense; Plaintiff's Complaint 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.

13. As and for a Eighth Defense; Plaintiff has no Fiduciary Duty and no Fiduciary Relationship exists

14. As and for an Ninth Defense; Defendant alleges that Plaintiff purchased the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is bar from seeking relief for damages. Volenti non fit injuria

15. As and for a Tenth Defense; Plaintiff's alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control.

16. As and for an Eleventh Defense; Plaintiff's alleged damages are the results of acts or omissions committed by the Plaintiff.

17. As and for a Twelfth Defense; Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than the Plaintiff in entitled to receive.

18. As and for a Thirteenth Defense; Plaintiff's alleged damages are limited to real or actual damages only.

19. As and for a Fourteenth Defense; Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

20. As and for a Fifteenth Defense, Plaintiff is not the real party in interest and Plaintiff has failed to name all necessary parties

20. As and for a Sixteenth Defense, The Plaintiff is not a collection agency licensed or authorized to conduct a collection agency business in this State in accordance with A.R.S. §32

21. As and for a Sixteenth Defense, Defendant reserves the right to plead further and reserves objections on the basis of lack of jurisdiction over subject matter; lack of jurisdiction over the person; improper venue; insufficiency of process; insufficiency of service process; failure to state facts upon which a relief can be granted; and failure to join a party under Rule 19, if any.

III Counter Claims

thanks

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