Need help with motion for summary judgment in AZ!!!

[WhyNotGiveItATry]

Hi All,

I'm new to this, so I apologize in advance if I don't use the proper legal language. I am self employed and flip houses for a living. The market has become extremely tuff in this economy and my income has dwindled to negative.

Here is a summary of the credit card complaint I'm involved with:

-In March 2010 I filed a petition for Chapter 7 BK (to essentially stop a foreclosure to allow a short sale on the property to close-last property of 6 that I successfully short sold)

-The case was dismissed shortly there after as I didn't attend the credit counseling and wasn't quite ready for BK

-The credit card company closed the account and sent it to their collections department in the same month. I had never missed a payment and intended on keeping the card as I had been using it for 10+ years.

-The collections department asked for payment in full. I told them I wasn't in a position for that and their offer was to settle for less than full balance (about 60%) which I couldn't afford either. They also offered a payment plan, but at this point my strategy was to settle with them at a 25-30% figure or some sort of small discount from principal with a payment plan.

-This department was rather rude and extremely difficult to deal with. They threatened and used every scare tactic to try and get me to settle.

-After about 2 months and not going down any lower on settlement they sent it to a local firm.

-They filed a complaint in June. They then proceeded to try and serve me and served my folks at their home instead. I know I could have probably got this service thrown out since it was improper, but at this point its water under the bridge.

-I answered the complaint within the time frame.

-The complaint was basic stating that:

1. They are a bank and I am who I say I am.

2. I was acting as an agent for marital community (although I am single)

3. When I received the credit card and I agreed to re-pay any charges made to the credit card according to the agreement.

4. I became bound to the terms of the agreement upon use.

5. I defaulted in payment. They stated the principal amount which was the same as the last statement and the interest rate which was the same as the last statement as well.

6. They are entitled to attorneys fees in event of default.

-I answered the complaint admitting allegation in 1,2,3 and stated I didn’t have sufficient information to deny or affirm 4,5,6. My affirmative defenses were basic. SOL, no proof of contract, no demand has been made, the amount owed is overstated. I demanded proof of amount owed.

-My assumption as I’m not very verse in this situation was it would go to arbitration and I would be able to plead my case. Within a few days they filed a motion for summary judgment basically stating there were no genuine issues as to any material fact in controversy. They included a copy of last statement, the cc agreement, and an affidavit from an employee at the bank stating I was the credit card holder.

-A few days after the motion was only mailed to me (not served), I received a notice of arbitrator being assigned to the case.

-A few days after the arbitrator was assigned, the plaintiff filed a motion to strike the arbitrator.

-I am currently in a place where I am on the verge of bankruptcy. I haven’t produced a profit in quite some time and am trying to figure out options with this case to avoid judgment. I don’t really have assets for them to go after, but I also don’t want a judgment on my record as it will make it extremely difficult if not impossible to continue doing any business transactions. I do have a car that’s in an LLC name (I am a co-signor) and some homes in LLCs, but personally nothing really of value.

If you would be so kind to help with any of the following questions, I would be extremely grateful!

1. The timeline for response on the motion is 30 days from the time they filed with the court. Is this correct?

2. Does the motion get seen by a judge since it’s in arbitration or will the case need to go to arbitration first?

3. Shall I attempt to answer the motion or only try some sort of negotiation before the due date?

4. Since I didn’t violate the terms of the agreement, in terms of default payments, is this a good argument to defend with?

5. I would be willing and have secured some capital to settle at ~30% of principal. Would it be more beneficial to have an attorney negotiate this or myself in your opinion?

6. When the case originated they offered a “pocket” judgment with a payment plan. Is this something I should consider in negotiating if I can’t afford a settlement for the amount they’re demanding?

7. If they obtain a judgment in the case that I do answer and lose, can they immediately go after any assets in my LLC’s names?

I think this is about it for now. Sorry again if this isn’t great legal verbiage. I am on a time crunch as the 30 days is up in about 10 days.

Thanks!!!

[davephx]

Response to MSJ is 30 days and if served by mail an additional 5 days for mailing.

MSJ is done outside of arbitration i.e. you can lose on a Summary Judgment before arbitration is scheduled or arb date as I understand it and happened to me.

Yes you should answer the motion and you can negotiate but they may not negotiate until they get their judgment. Depends who it is.

Often settlements are not less than 50% from my expereince in reserach but hope others might jump in.

I do not think they can go after assets IN your LLC but might have the right to take your stock in the LLC but I suspect rarely done.

Most credit card agreements I believe include an immediate acceleration clause upon bkk.

IF your back here been awhile, be interested in update and am checking your other threads

[Ruffian]

MSJ as Matter of Law Please help

New here and not sure how to post a new thread....

I really need some help in AZ with BA/FIA CARD SERVICES AND JDB

This is what is happening and I need to respond to the MSJ before the Judge rules.

Plaintiff has filed a MSJ pursuant to Rule 56. The Motion is based on the grounds that there are no genuine issues of material fact and that Plaintiff is entitled to judgment as a matter of law.

As a Matter of Law?

Plaintiff provided a signed copy of the CC application from 2004 and monthly statements from May 2010 to August 2010.

Plaintiff has also provided an affidavit of an employee of Plaintiff verifying the amount due and owing on Defendants cc.

Plaintiff has received no payments from the time Plaintiffs affidavit was made and the date of the motion.

Plaintiff has demonstrated that the Defendant breached the contract by failing to repay the outstanding obligations and that Plaintiff's

damages are equal to the outstanding principle of the debt, plus interest, court costs and attorney fees.

If your CC states that the matter must be decided by arbitration as per CC agreement and not in a court of law how does this apply?

I need some help as how best to respond to this MSJ. or am I defeated?

************************************************** *****

This is what I have done so far and the results thereof.

Thank you and please re direct me if I posted incorrectly.

I filed a MTC

Plaintiff filed Motion to continue on an inactive Calendar for 30 days so that plaintiff could obtain a statement from the client for the account

The very next day Plaintiff JDB filed a MSJ stating the facts posted above.

Court set Arbitration hearing .

Plaintiff correspondence wanting to settle to avoid court costs.

I refiled my MTC and showed proof that I had initiated with JAMS,( however did not include the order)(too new at this my error)

Plaintiff opposes my MTC reasserting that neither party has elected to have this matter arbitrated and that Defendant failed to initiate the arbitration as provided by the terms of the CC agreement. Because the arbitration is optional, not mandatory as Defendant suggests, none of defendant's rights have been violated. Requests the court deny my MTC.

This is a BA 2003 Agreement which specifically sates: you understand and agree that if eithr you or we elect to arbitrate a claim, htis arbitration section precludes you and us from having the right or opportunity to litigate claims through court, or to participate or be represented in litigation filed in court by others, except as otherwise provided above, all claims must be resolved thru arbitration if you or we elect to arbitrate.

Received receipt from JAMS .

Filed MTS

Plaintiff then opposes with another company CC and a different amount owing and JDB states that the affidavit has not been offered into evidence.

(I received an affidavit with the original complaint months ago)

The Arbitration hearing that was set was canceled by the court appointed attorney until the Judge rules on the MSJ.

I need to respond correctly to the Plaintiffs MSJ before the Judge rules...I do need some help here...

JAMS has sent second notice regarding Plaintiff's failure too respond and pay fee.

Thank you for your responses and thoughts.

Plaintiff has never given me a signed copy of an assignment of this debt or that attorney even owns the debt.

BA FIA Attorney Claims his firm is the attorney for FIA Card services. This account was charged off in 2010.

[Linda7]

MSJ as Matter of Law Please help

New here and not sure how to post a new thread....

I really need some help in AZ with BA/FIA CARD SERVICES AND JDB

This is what is happening and I need to respond to the MSJ before the Judge rules.

Plaintiff has filed a MSJ pursuant to Rule 56. The Motion is based on the grounds that there are no genuine issues of material fact and that Plaintiff is entitled to judgment as a matter of law.

As a Matter of Law?

Plaintiff provided a signed copy of the CC application from 2004 and monthly statements from May 2010 to August 2010.

Plaintiff has also provided an affidavit of an employee of Plaintiff verifying the amount due and owing on Defendants cc.

Plaintiff has received no payments from the time Plaintiffs affidavit was made and the date of the motion.

Plaintiff has demonstrated that the Defendant breached the contract by failing to repay the outstanding obligations and that Plaintiff's

damages are equal to the outstanding principle of the debt, plus interest, court costs and attorney fees.

If your CC states that the matter must be decided by arbitration as per CC agreement and not in a court of law how does this apply?

I need some help as how best to respond to this MSJ. or am I defeated?

************************************************** *****

This is what I have done so far and the results thereof.

Thank you and please re direct me if I posted incorrectly.

I filed a MTC

Plaintiff filed Motion to continue on an inactive Calendar for 30 days so that plaintiff could obtain a statement from the client for the account

The very next day Plaintiff JDB filed a MSJ stating the facts posted above.

Court set Arbitration hearing .

Plaintiff correspondence wanting to settle to avoid court costs.

I refiled my MTC and showed proof that I had initiated with JAMS,( however did not include the order)(too new at this my error)

Plaintiff opposes my MTC reasserting that neither party has elected to have this matter arbitrated and that Defendant failed to initiate the arbitration as provided by the terms of the CC agreement. Because the arbitration is optional, not mandatory as Defendant suggests, none of defendant's rights have been violated. Requests the court deny my MTC.

This is a BA 2003 Agreement which specifically sates: you understand and agree that if eithr you or we elect to arbitrate a claim, htis arbitration section precludes you and us from having the right or opportunity to litigate claims through court, or to participate or be represented in litigation filed in court by others, except as otherwise provided above, all claims must be resolved thru arbitration if you or we elect to arbitrate.

Received receipt from JAMS .

Filed MTS

Plaintiff then opposes with another company CC and a different amount owing and JDB states that the affidavit has not been offered into evidence.

(I received an affidavit with the original complaint months ago)

The Arbitration hearing that was set was canceled by the court appointed attorney until the Judge rules on the MSJ.

I need to respond correctly to the Plaintiffs MSJ before the Judge rules...I do need some help here...

JAMS has sent second notice regarding Plaintiff's failure too respond and pay fee.

Thank you for your responses and thoughts.

Plaintiff has never given me a signed copy of an assignment of this debt or that attorney even owns the debt.

BA FIA Attorney Claims his firm is the attorney for FIA Card services. This account was charged off in 2010.

Ruffian, you need to post this in the "Is there a Lawyer in the House" forum. And you need to start a new thread so that everyone can see your post. When you click and go into that forum, you will see at the top three areas - "Post Judgment Forum", "State Laws, Case Law, Sample Forms","Arbitration" and then look under that in the white area and you will see a button to click that says "New Thread". Click on that and put in your title and then your message and then under that you will see a button to click that says "submit new thread" and you'll have your post in the right forum!