GDayMateAZ

AZ SOL for Cr Cards will be SIX years - Governor signed the Bill HB 2412

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Always have been. credit cards have always been contracts in Arizona, never open accounts.

All the statute did was clarify for everyone who believed that credit cards weren't contracts is that... guess what, they are.

6 year statute, always has been that way in AZ. It's a contract in writing, but now you know.

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effect July 20, 2011 - the next Wednesday.

Where did you find the effective date?

I'm in the midst of lawsuit for CAP1 SOL 3yrs(VA) vs. AZ "NEW" SOL 6yrs.

When it was 3yrs Vs. 3 yrs just barely couple days ago.

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Where did you find the effective date?

I'm in the midst of lawsuit for CAP1 SOL 3yrs(VA) vs. AZ "NEW" SOL 6yrs.

When it was 3yrs Vs. 3 yrs just barely couple days ago.

Please see my post # 23 in this thread.

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Oh, got it!

Then how does "grandfathering" of the law come in to play?

I am sooooo tempted to email those baste@#$%%% who passed the bill.

Sponsors: Representative Weiers J, Senator Sinema

They must be rich and not have to worry about it.

SHAME ON YOU!!

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Oh, got it!

Then how does "grandfathering" of the law come in to play?

I am sooooo tempted to email those baste@#$%%% who passed the bill.

Sponsors: Representative Weiers J, Senator Sinema

They must be rich and not have to worry about it.

SHAME ON YOU!!

Of course they are rich and where do you think they get their re-election funds from? :evil:

unfortunately the interpretation of the grandfather is dependent on the judge you get and they are all very different :roll:

VOTE OUT ALL INCUMBENTS !!!! :twisted:

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Hate to have to disagree with you, but voting in new corrupt politicians will change nothing.

Back on subject.

I was just served with papers, a JDB is suing me for a Chase debt. I called their attorney to find out why they are suing me with the SOL expired (3 years was up in spring) and was floored when they told me that it's 6 years.

So I found this thread and I wonder what happened to the other people who got sued.

Obviously I think the new SOL should apply only to NEW defaults, but I'm sure creditors and JDBs disagree.

Do we have any court decisions yet?

Thanks much,

Christine

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There's no case law yet regarding the 3 vs 6 year.

Did you default before this year? If so, you'll want to argue the 3 year SOL.

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Hate to have to disagree with you, but voting in new corrupt politicians will change nothing.

Back on subject.

I was just served with papers, a JDB is suing me for a Chase debt. I called their attorney to find out why they are suing me with the SOL expired (3 years was up in spring) and was floored when they told me that it's 6 years.

So I found this thread and I wonder what happened to the other people who got sued.

Obviously I think the new SOL should apply only to NEW defaults, but I'm sure creditors and JDBs disagree.

Do we have any court decisions yet?

Thanks much,

Christine

If you look at history voting out incumbents has worked really well !!!

Interpretation of the new law will depend how well you or your lawyer makes an argument and what luck of the draw you get for a judge, all judges interpret things differently. Make you case is good so it can go to appeals and get a ruling from a smart person :)

Someone has to go first! :)%

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The "best" case has the most RECENT citations. I wonder what happened to the person sued by Cap One.

Been doing some research and it seems that a critical issue is whether the SOL expired prior the EFFECTIVE date of this legislation.

If it's the date signed PLUS 90 days, I think I'm ok. If not, it comes down to the last CHARGE.

It is VERY odd that AZ uses the date of last charge and NOT payment. Have to find the source for that 90 day provision.

And regarding politicians, keep in mind that just about every elected official replaced an incumbent. I find it deplorable that a DEMOCRAT like Kyrsten Sinema sponsored this bill.

Owned and operated by the bankers.

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The "best" case has the most RECENT citations. I wonder what happened to the person sued by Cap One.

Been doing some research and it seems that a critical issue is whether the SOL expired prior the EFFECTIVE date of this legislation.

If it's the date signed PLUS 90 days, I think I'm ok. If not, it comes down to the last CHARGE.

It is VERY odd that AZ uses the date of last charge and NOT payment. Have to find the source for that 90 day provision.

And regarding politicians, keep in mind that just about every elected official replaced an incumbent. I find it deplorable that a DEMOCRAT like Kyrsten Sinema sponsored this bill.

Owned and operated by the bankers.

I agree ! no difference between DEMS and Repubs anymore! Banks own them all and banks run the country!

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your 3 best defenses against JDB's

1) failure to state a claim for which relief may be granted

2) lack of standing to sue

3) violates the statute of frauds - a chose of action $500 or more in arizona must be evidenced and signed by the party to be charged.

if you need case law to back these up, PM me.

I can't PM you, so maybe you can elaborate on 3). What exactly needs to be signed?

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Here is the page regarding the effective date of 7/20/11:

[i'm not allowed to post URLs to the AZ state legislature site, so I suppose I'll start a new blog on that at LiarsAndCheats.info]

2011

Fiftieth Legislature - Third Special Session

Fiftieth Legislature - First Regular Session 7/20/2011

Fiftieth Legislature - Second Special Session 5/17/2011

Fiftieth Legislature - First Special Session 1/21/2011

Took me forever to find it because I was looking for a comment period. A copy of that page with the URL should be sufficient for courts. The bill states that it was in the first regular session.

According to statements provided by Acarta's lawyer Vaughan, the last payment was made on 6/4/08 and they filed the suit in August 2011.

They have yet to supply a contract, so the 3 yr SOL should apply.

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I am in AZ and being sued by Cap One for $1000 plus $700 in interest. The 3 year SOL expired in Oct of 2010. Does anyone know if people are winning with the 3 year expiration defense?

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You've probably seen the cases posted here, but I suspect that there are other cases in favor of 6 years.

I got a long extension to answer and just filed my answer, affirmative defenses and counter claims on the 19th. Also submitted my discovery requests at the same time and it's too bad I haven't had time to upload the filings.

I got the initial collection letter from Acarta with NO right to dispute etc. disclosures and I found out that they're not licensed in AZ. They've filed quite a few lawsuits in AZ. I also felt that the complaint contained false or misleading statements.

Next week I'll file my complaint with the Arizona Department of Financial Institutions and they seem to investigate each complaint. Their website has lots of info on their settlements with collectors.

I wish I had the resources to contact everybody who got sued by Acarta to let them know about the licensing.

Unfortunately that doesn't help you with Cap One. Is Lippman the lawyer? They sued me for two accounts and it's VERY easy to get FDCPA claims against the attorneys (unfair practices) and I got them dismissed because they submitted the Cap One affidavit and statements for the other account at the trial for the first account.

I'm considering suing Lippman et al, but with the short 1 year SOL for FDCPA, I probably won't get to it on time.

Give them lots of rope and maybe they'll hang themselves. Document all communications and record all phone calls.

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Hi Christine.

They attorney is Gurstel Chargo. A quick google search showed they do a lot for Cap One. Their website was humorous though. They have a store where you can buy "Accountability Matters" t-shirts with their logo.

They have not sent me a thing or called me ever. This is the first I have heard of Capitol One in at least a year....if not longer. After reading the summons a little closer though I am hoping I can get them on some technicalities in case the SOL thing doesn't work.

Good luck!!!

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It's been almost a year, but I just had some dealings with Gurstel Chargo myself.

I let a friend use my phone to call them after she got sued by them. Several weeks later I got a call from Gurstel Chargo. When I told him my friend wasn't here, he hung up. I called them back (caller ID) and he told me that they are collectors.

Ended up talking to the manager who told me that it's perfectly legal to capture the numbers of debtors from caller ID. Freaking MORONS!

My number is actually blocked, but of course that doesn't work when you call a toll free number. If I had the time, I'd post the recordings of those calls.

My friend had filed a motion to dismiss because she had moved from So. AZ to Mohave County and was served down there. Gurstel objected, but the judge hasn't ruled yet. My friend just needed to buy time to prepare for bk as she had to move again.

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I lost EVERY claim in superior court.

I just started the blog with the court filings and I hope to get some help with publicizing this suit.

Can't post a link here, so please search for:

"Debt buyer Acarta lawsuit in Arizona court of appeals"

My goals are legislative and regulatory changes and to motivate attorneys to litigate this stuff PROPERLY.

I don't expect to prevail in court, but as with Capital One and the credit limits, I don't have to win to get results.

Of course I'll do the best I can, but I'm not an attorney and have limited time and money.

Thanks for the help!

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Effect of statute changing limitation, and the 2011 amendment of 12-548 which added credit cards to the 6 year SOL is not applicable and is the use thereof is barred by state law A.R.S 12-505;

An action barred by pre-existing law is not revived by amendment of such law enlarging the time in which such action may be commenced See City of Tucson v. Clear Channel.

City of Tucson v Clear Channel;

See Crowell v. Davenport, 11 Ariz. 323, 327-28, 94 P. 1114, 1115 (1908) (holding that suit on a contract cause of action that had accrued prior to effective date of new statute was governed by statute in effect at time of accrual). In Crowell stating that [t]he rule for the construction of new, re-enacted, or amended statutes of limitation applied in some jurisdictions is that, unless a contrary intent be expressed, they are to be given a prospective effect so as to extend the period of time within which suits might be brought on existing causes of action to the full time prescribed by such statutes counting from the time they take effect. 11 Ariz. at 326, 94 P. at 1115.

Crowell eventually held, however, that this rule did not apply in Arizona in light of paragraph 2974, and that causes of action accruing before the effective date of a new statute were governed by the old statute of limitations. Id. at 327-28, 94 P. at 1115.

--Such an argument presumes that the "pre-existing law" must be a specific statute of limitations. But the legislature did not use the term "statute" or "statute of limitations" in § 12-505©; it referred in this subsection, as in the balance of § 12-505, to "pre-existing law."

"Law" encompasses more than just statutes; it also includes constitutional provisions, the common law, and judicial decisions. Wagenseller v. Scottsdale Mem'l Hosp., 147 Ariz. 370, 378, 710 P.2d 1025, 1033 (1985) (recognizing that law emanates not just from statutes, but also constitutions and judicial opinions). See Black's Law Dictionary 889 (7th ed. 1999) (defining "law" as "[t]he aggregate of legislation, judicial precedents, and accepted legal precedents; the body of authoritative grounds of judicial and administrative action")

Arizona Court of Appeals

Continental Casualty Company v. Grabe Brick Company Inc. 1 Ariz. App. 214, 401 P2d 168 (1965)

"A more thorough treatment of what an "open account" consists of is found in 1 Am. Jur.2d, Accounts and Accounting, Section 4, p. 373:

"An open account results where the parties intend that the individual items of the account shall not be considered independently, but as a connected series of transactions, and that the account shall be kept open and subject to a shifting balance as additional related entries of debits and credits are made, until it shall suit the convenience of either party to settle and close the account, and where, pursuant to the original express or implied intention, there is but one single and indivisible liability arising from such series of related and reciprocal debits and credits. This single liability is to be fixed on the one part or the other, as the balance shall indicate at the time of settlement, or following the last pertinent entry of the account, and it must be one mutually agreed upon between the parties or impliedly imposed upon them by law"

In Beane v. Tucson Medical Center, 13 Ariz. App. 436, 477 P.2d 555 (1970), Division 2 of this court interpreted the requirement of a contract in writing requirement as follows: "A cause of action is not upon a 'contract founded upon an instrument in writing' merely because it is in some way remotely or indirectly connected with the instrument or because the instrument would be a link in the chain of evidence establishing the cause of action." (Petty and Riddle, Inc. v. Lunt, (1942) 104 Utah 130, 138 P 2d 648).}

In Wing v. Jimenez 114 Ariz 346, 560 P.2d 1253 (1977) Maricopa County Superior Court interpreted the limitation period on a store account "Under A.R.S. 12-543 the statute of limitations is no defense in an action on an open account if any of the items was incurred within the three-year period. If such has occurred the plaintiff can recover for all items in an open account including those incurred more than three years prior to the filing of the complaint."

Maricopa Superior Court

Minute entry; "In this case, the credit card agreement between the appellant and First USA Bank, (which was subsequently assigned to the appellee) was an open account." Citing Krumtum. DSS Financial Group Inc. v. Deborah Walrod LC2008-000690-001 DT (On appeal from South Mountain Justice Court CC200714554)

Arizona Supreme Court

Open accounts are "one where there are running or concurrent dealings between the parties, which are kept unclosed with the expectation of further transactions" Connor Livestock Co. v. Fisher, 32 Ariz. 80, 85, 255 P. 996, 997 (1927)

"The Statute of Limitations begins to run on an open account from the date of the last item,..." "Therefore the last item charged on the open account was more than three years before the action was commenced and the statute of limitations having been pled is a bar to the suit" Krumtum v. Burton 111 Ariz 448, 532 P2d 510 (1975)

Plaintiffs contract with telephone company which was partly oral and partly written was an oral contract and thus was governed by Arizona statute of limitations applicable to oral, rather than written, contracts. Biddle v. Mountain States Tel. & Tel. Co., C.A.9 (Ariz.)1980, 629 F.2d 571. Limitation Of Actions 26.1

A memorandum, in order to satisfy a contract within the statute of frauds, must state the terms and conditions of all the promises constituting the contract and any deficiency in this regard cannot be supplied by parol. Gray v. Kohlhase (App. Div.2 1972) 18 Ariz.App. 368, 502 P.2d 169. Frauds, Statute Of 113(2); Frauds, Statute Of 158(3)

( an unsigned CC terms and conditions or account statements are parol . )

Kersten v. Continental Bank, 628 P.2d 592 (Ariz. 1981)

The six year statute of limitations requires that the alleged debt, here the obligation to lend $100,000 to plaintiffs, be evidenced by or founded upon a written contract. In Beane v. Tucson Medical Center, 13 Ariz. App. 436, 477 P.2d 555 (1970), Division 2 of this court interpreted this requirement as follows:"In order for a cause of action to be founded upon a contract in writing, the instrument itself must contain an undertaking

[129 Ariz Page 47]

to do the thing for the non-performance of which the action is brought. Petty and Riddle, Inc. v. Lunt, 104 Utah 130, 138 P.2d 648 (1942); Division of Labor Law Enforcement, Department of Industrial Relations v. Dennis, 81 Cal.App.2d 306, 183 P.2d 932 (1947); Tagus Ranch Company v. Hughes, 64 Cal.App.2d 128, 148 P.2d 79 (1944). A cause of action is not upon a 'contract founded upon an instrument in writing' merely because it is in some way remotely or indirectly connected with the instrument or because the instrument would be a link in the chain of evidence establishing the cause of action. Petty and Riddle, Inc. v. Lunt, supra." (Emphasis added). 13 Ariz. App. at 438, 477 P.2d at 557.

the Statute clearly states Amended and revised, there is no evidence of congressional intent that indicates "clarification". the original bill submitted specifically states that it is "added" to the Statute.

OverviewHB 2412 adds a credit card to the type of debt that must be prosecuted within six years after the cause of action accrues.

http://www.azleg.gov...overnor.doc.htm ( print it out and attach it. )

and the Statute is specifically states Amended.

HOUSE BILL 2412 AN ACT amending section 12‑548, Arizona Revised Statutes; relating to actions on debt. Bill Text: AZ House Bill 2412 - Fiftieth Legislature - First Regular Session (2011) | LegiScan

, The Arizona Supreme court has ruled that if all the terms of the contract are not within 4 corners of the document and signed by the parties, or if the contract has to be proved by Parol evidence, that it is an oral contract a contract subject to the 3 year Statute.

The Maricopa superior court had repeatedly overturned lower courts rulings on the 6 year Statute of limitations and opinined that the 3 year Statute for Open account, Oral contracts applies to Credit card accounts See Capital One Bank v. Ruffcorn (Ariz. Super. Ct. Apr. 19, 2010) LC2009-000927-00l DT Lower Court Case No. CC2008186529RC

Other State courts have ruled that Credit Cards in Arizona fall under the 3 year Stautes based on AZ supreme court Ruling See Fla. Credit Research Inc. v. Felicien (Fla. County Ct. Apr. 15, 2008)

http://www.nclc.org/images/pdf/unreported/Ruffcorn.pdf

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Thank you very much, those cases will be very helpful.

Here is everything of substance in the Mohave superior court ruling:

While Defendant has done an admirable job of raising issues that attempt to complicate this case, in reality this case is a simple case. Defendant failed to pay back credit card debt. The Plaintiff does have standing as the assignee of the original debt.

Defendant did begin processing this case within the statutory time limits.

Finally, the original credit card terms entered into by the actions of the Defendant and which accrued to the benefit of the Defendant, allow for the interest rates and penalties being requested by the Plaintiff in the pleadings.

There are no material issues, either factual or legal, in dispute.

I think I did a good job establishing that the legislative change to 6 years didn't apply to me, but I was lacking the AZ legal definition for a "written agreement." Of course there's no way of telling what the judge's thoughts were since he did not elaborate.

Also, I had included several rulings from Maricopa superior court but it seems the judge didn't care.

Thanks again!

Edited by Christine

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Thank you very much, those cases will be very helpful.

Here is everything of substance in the Mohave superior court ruling:

I think I did a good job establishing that the legislative change to 6 years didn't apply to me, but I was lacking the AZ legal definition for a "written agreement." Of course there's no way of telling what the judge's thoughts were since he did not elaborate.

Also, I had included several rulings from Maricopa superior court but it seems the judge didn't care.

Thanks again!

so you still have time to file an appeal to the state apeals court?

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It's been almost a year, but I just had some dealings with Gurstel Chargo myself.

I let a friend use my phone to call them after she got sued by them. Several weeks later I got a call from Gurstel Chargo. When I told him my friend wasn't here, he hung up. I called them back (caller ID) and he told me that they are collectors.

Ended up talking to the manager who told me that it's perfectly legal to capture the numbers of debtors from caller ID. Freaking MORONS!

My number is actually blocked, but of course that doesn't work when you call a toll free number. If I had the time, I'd post the recordings of those calls.

My friend had filed a motion to dismiss because she had moved from So. AZ to Mohave County and was served down there. Gurstel objected, but the judge hasn't ruled yet. My friend just needed to buy time to prepare for bk as she had to move again.

I ended up filing a motion to compel private arbitration through JAMS. Gurstel dismissed the case with prejudice. It was way too easy.

Tell your friend that Gurstel is easy to beat. They are just looking for the default judgement.

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Ended up talking to the manager who told me that it's perfectly legal to capture the numbers of debtors from caller ID. Freaking MORONS!

They can call your cell as long as they don't use an autodialer or leave a robomessage.

If they do either one of those, then calling a "captured" number which they did not have permission to call is a TCPA violation.

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Ping, sorry for the late reply, seems like I didn't get emails with the posts.

Have to file the appeal on Friday and I'm struggling. Got the Cash v Askew opening brief from the MO Supreme Court today and that helps, but I have so many issues and feel a bit overwhelmed.

Ran out of ink yesterday, the ink I had just ordered didn't seem to work, finally figured out the the printhead was plugged, you should see the mess, ink everywhere, but at least it works again.

60 miles from the nearest store and I just hope my computer and printer hold up.

I'm going to go through the cases on evidence again, really know nothing about the rules of evidence and I sure with I had an ARIZONA brief on that.

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They can call your cell as long as they don't use an autodialer or leave a robomessage.

If they do either one of those, then calling a "captured" number which they did not have permission to call is a TCPA violation.

This wasn't a TCPA issue, was manually dialed and to my landline. However, I just read a nice ruling in favor of a debtor whose number was captured. Third party disclosure is also an issue.

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I ended up filing a motion to compel private arbitration through JAMS. Gurstel dismissed the case with prejudice. It was way too easy.

Tell your friend that Gurstel is easy to beat. They are just looking for the default judgement.

Good for you! And good news for my friend.

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