AZ Complaint out of SOL, Shady CA/Lawyer

[Laz_AZ]

I've read several other threads by another poster in AZ having very similar issues. My case has a few twists in it. So, here is an overview. If anyone has any specific input, I would greatly appreciate it. I'm doing law research on the fly the best I can. I have most of the information to file for MTD and putting it together. But, I also want to go after the attorney and CA.

I have a CA/attorney file a complaint/summons for a credit card debt in Arizona where I live (community property state, part of the community debt, marriage ended 6/2007) only served on my and "Jane Doe".

I realize that they were hoping for a quick default judgment but this is way out of SOL.

Last payment or charge 2/2006 – SOL for Credit Card is 3-years so the SOL would have been 2/2009. I have all the case law. I didn’t even know what account until the CA filed a subpoena a few weeks ago with the acct num on it but since all the community debt went into default in 2/2006 and is now all beyond SOL, its simple.

CA Filed a complaint/summons on August 16 2009. 6-months after SOL.

Filed it in Justice Court claiming it was less than $10K (limit), reality is that is more.

In July 2008, he made an inquired to my credit report.

CA never sent a dunning letter, never provided (to this day) any FDCPA information. Provided no detail to the court no the account number, no information on Plaintiff other than the name, no assignment or proof that Plaintiff even owns the debt/paper.

He (attorney) then asked in 11/2009 for an extension by claiming he could not find me but recently acquired my address from the AZ DMV. In fact, he had acquired that address in July 2009 about a month prior to the filing of the initial complaint. He lied (imagine!!). He later served me with the complaint but failed to provide the motion or order for the extension. OC had my home address since 2/2006 (it hasn’t changed since then).

I answered asking for MTD based on time expired (120-days) to serve (without Prejudice). Which would have clearly put him beyond the SOL. He assuming the charge off date is the SOL dated which case law says not so... its last action/payment/charge on the account from all I have read.

Of course, he had the extension so wasn’t dismissed when I asked. When I replied that he misled the court saying that he had recently acquired the address from MVD, he said recently has not time limit even defining "recent" in his reply.

I put an affirmative defense for SOL (hopefully enough to reserve it for later) in my answer and counter motion to dismiss. I asked initially for a MTD, was denied. I stated it was based on failure to state a valid claim and failure to serve within rules of the court. Upon reply, I responded asking for court sanctions and dismissal for the Plantiff lying to/misleading the court to get the extension to server for another 120-days when they had my address. This was not really ruled on by the court. I plan to file a complaint with the bar on this item if I can’t get the judge to do something in court.

Only AFTER my answer, did he serve a subpoena to the OC (Ccedit card company).

1. CA is TRS Financial Corporation which I have located in Nevada - no address on suit for plaintiff.

a. One of the officers of the parent corporation for TRS (The Corporation Trust Company of Nevada) has the same address as the attorney filing the complaint down to the box number (UPS store on 7th Avenue in Phoenix).

Question: Does the attorney need to disclose if they are in fact the plantiff?

I just checked to be sure, "Plaintiff TRS Financial Corporation as assignee of XXX Bandk, by and through its udnersigned counsel for its Complaint alleges ..."

Question how does this differ from a CA Or is it the same?

b. Neither TRS, The Corporation Trust Company of Nevada nor the Attorney are a registered Collection Agency in AZ Department of Financial Institutions here: azdfi . gov / Lists / Download / Download . htm

Question: In Arizona, does the CA have to be a registered CA with the state?

Plaintiff never sent dunning letter/FDCPA required information, has not provided 26.1((1) information or ANY information (required by FDCPA) and it is now 70-days after I filed my answer.

My plan is to

1. reply with the form the court recently sent for my 26.1((1) but I don’t have a lot of info for it yet as Plaintiff has not provided anything.

2. Put the SOL information in the disclosure based on the Plaintiff subpoena the OC – I believe it’s the Plaintiff responsibility to validate the debt.

3. Send a letter to the Plaintiff attorney asking for the validation (not sure I need to do this now or not as he MUST do it for the suit).

Question: When is the best time to raise specifics on the SOL? In my 26.1((1) disclosure or later upon validation of the debt?

Edited May 4, 2010 by Laz_AZ
Added information that CA is Assignee

[chuckygee]

Maybe you should look into filing a Motion for Summary Judgement. Use the debt being SOL for the basis. Since the debt is beyond legal collection there are no material facts in dispute. That may get you further than a dismissal.

[jkg3]

If it were me, I would file in small claims against the attorney for a FDCPA violation.

[1stStep]

Attorneys are exempt from needing a license to collect (imagine that...)

File a complaint with the AZDFI against TRS... then file a counterclaim for violation of the FDCPA (suing on a time-barred debt)...

MTD for out of statute debt.

[Laz_AZ]

Attorneys are exempt from needing a license to collect (imagine that...)

File a complaint with the AZDFI against TRS... then file a counterclaim for violation of the FDCPA (suing on a time-barred debt)...

MTD for out of statute debt.

Thanks so much for the input.

I’m preparing a Production of Documents as found in one of the sticky forum threads asking for a bunch of info. Still figuring out how to put it together

I have a few questions related to your reply that maybe you or someone can help me clarify….

1. You say attorneys are exempt from needing a license, the Plaintiff is TRS not an attorney specifically since it is listed as TRS Financial Corporationso I am guessing that the attorney is not being licensed is irrelevant unless he presented himself as the CA is that correct?

The actual Complaint states:

“Plaintiff, TRS Financial Corporation as assignee of BIGBANK, by and through its undersigned counsel for it Complaint alleges as follows:”

Throughout the complaint it refers to the TRS as the assignor of the Plaintiff.

The bank wrote off the debt, in my credit report it shows:

Remark: Purchased by another lender

Pay Status: >Charged Off as Bad Debt<

Closed: 9/2006

It appears that the Plaintiff bought the debt and the attorney is likely working for TRS or could be TRS (same address).

Question: In AZ is there a difference between an assignee and a CA? Does that require TRS to follow the FDCPA?

3. Is TRS required to prove they are an Assignee when asked?

4. If TRS is still required to be a licensed CA wouldn't it be specifically required to list the exact name of the CA on the suit as the plaintiff? There is another entity of similar name on the state list but the Plaintiff claims it is not this TRS in question. So, neither TRS, the attorney or the parent company are listed as licensed CA in AZ.

5. How do I file a FDCPA complaint against TRS if they are in Nevada? Is it through the AZDFI or the Attorney General's office routing it to the attorney in this case?

6. Do I file a MTD for the SOL/out of statute debt providing copies of my statements from back then (assuming I can find them) or wait until TRS through Subpoena provides the DV which they have not?

I have only stated in my answer that I know nothing about the debt specifics as they have not provided anything at all. I also preserved my SOL rights. They never sent a letter of any kind indicating I have the right to validate debt in 30-days or any other requirements of the FDCPA .

So, I guess I will prepare?

1. A MTD based on generic SOL, and statements from the TRS complaint and subpoena which states the last payment on the account was credited 1/20/2006 and charged off on 8/31/2006. SOL is 2/1/2006 by TRS’s own documents as that’s the last action (I have all the words from this site and another appeal already).

2. Discovery motion/letter - hand deliver to lawyer in court or mail or both.

3. Contact OC Bank asking for charge off/sell off info

4. Prepare complaint against TRS in small claims court

5. File complaint with AZ AZDFI and Attorney General's office

6. File a bar complaint against attorney for lying in court papers about having my address to get an extension to serve using his own response.

We have a mediation which could go directly into pretrial conference this Thursday.

[Laz_AZ]

Maybe you should look into filing a Motion for Summary Judgement. Use the debt being SOL for the basis. Since the debt is beyond legal collection there are no material facts in dispute. That may get you further than a dismissal.

Not sure which is better plan, Summary Judgment or MTD SOL. I have to get the materials first to prove it or wait for the Plaintiff to either provide them on his own or through my discovery....

Thursday is mediation meeting at court.

[Quader]

Not sure which is better plan, Summary Judgment or MTD SOL. I have to get the materials first to prove it or wait for the Plaintiff to either provide them on his own or through my discovery....

Thursday is mediation meeting at court.

why not do both?

[ping]

you cannot file a MTD after you file an answer. please read the AZ court rules.

an assignee can sue; it's called a chose of action

the statute of frauds apply to this type of suit in az.

I have some posts in the case law sticky use the search bar " arizona"

and yes, the assignee has to prove the assignment when you object.

if you don't use all your affirmative defenses, the are waived.

lack of standing to sue, statute of frauds privity of contract

statute of limitiations

[merrybucks]

you cannot file a MTD after you file an answer. please read the AZ court rules.

It is considered as an MSJ.