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Summary judgement help!


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I am currently being sued by Bursey and Associates here in Arizona regarding a chase account from 2008. (forgot to mention the JDB is Midland in this case)

I initially accepted service at the court and then filed my response including a request for disclosure. Bursey then responded with a "Notice of service of disclosure statement" Containing A Affidavit of Indebtedness., Bill of Sale, Chase billing statements , MCM statement and terms of conditions.

At this point we had our pre trial conference set for mid February. I then got a request to let the plaintiff appear to the pre trial confr3ence telephonicly which I let slide as it was no big deal.

Now a few days ago I received the plaintiffs plea for a summary judgement providing the below reasons:

Standard of Review

- Defendant entered the credit card agreement for a chase credit card

- Defendant is in default of the Credit Agreement

- Defendant Agreed to the Terms of conditions of the credit card.

- Defendants as Marital Community owe the plaintiff jointly for the deficient Balance

- Defendant has failed to comply with the requirements of the Ariz.R.Civ.P 26.1 and disclose the factual basis of the defense, the legal theory of the defense, or any witnesses or evidence to the used in trial.

The 3 exhibits provided were the card holder agreement, Affidavit of Nancy Kohls which includes the original bill of sale for the purchase of the junk debt (this does not contain any reference to the account number in question or any of my personal information. Lastly several chase billing statements.

At this point I am really not sure the best way to proceed. Did I end up screwing myself by not filling the information in relation to "Defendant has failed to comply with the requirements of the Ariz.R.Civ.P 26.1 and disclose the factual basis of the defense, the legal theory of the defense, or any witnesses or evidence to the used in trial."?

I have thought about submitting a request for arbitration however the only company that is allowed in the Card holder agreement is AAA which I have heard is not as helpful as JAMS.

Any suggestions would really help as I am really not sure on how to proceed at this point. I have 5 days to file my response.

-Papa

Edited by papa_mcb
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What defense did you assert? That aside, community property states have rules. Was this debt incurred during the marriage or prior? Check your state statutes as to what qualifies. Was the wife named in the suit? The thing that jumps out is the 2008 date. Chase is Delaware law, strict 3 year statute of limitations. You can argue this. They insisted DE law applies in the cardholder agreement, now they may try to argue that your state SOL applies. Nope, sorry. You only seem to want DE law when it helps your case. If your lawyer was too stupid to file the case in time, too bad.

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It may be too late to request arbitration. You going to need to write and file an Opposition to Motion for Summary Judgment. In your opposition, attack their evidence and their standing to sue. Find AZ case law that supports each of your arguements. For instance, find case law that they need a valid assignment that proves they own the debt. Here's some case law from the AZ Supreme Court:

"It is, however, hornbook law that in order to effect a legal assignment of any kind there must be evidence of an intent to assign or transfer the whole or part of some specific thing, debt, or chose in action, and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified." Certified Collectors, Inc. v. Lesnick, 570 P. 2d 769 - Ariz: Supreme Court 1977

Did the affidavit from Nancy Khol's mention the cc statements? If not, then the statements have not been authenticated. Find the AZ rule of evidence regarding hearsay and self-authentication. Point out that they did not comply with that rule.

There are some members of this forum who are from AZ, so I'm sure they'll chime in.

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What defense did you assert? That aside, community property states have rules. Was this debt incurred during the marriage or prior? Check your state statutes as to what qualifies. Was the wife named in the suit? The thing that jumps out is the 2008 date. Chase is Delaware law, strict 3 year statute of limitations. You can argue this. They insisted DE law applies in the cardholder agreement, now they may try to argue that your state SOL applies. Nope, sorry. You only seem to want DE law when it helps your case. If your lawyer was too stupid to file the case in time, too bad.

I was wondering if you could clarify more on the Card holder agreement insisting on DE law?

Thanks everyone for you help and any more information or direction would be much appreciated.

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Chase is located in Delaware. The SOL in DE for credit card debt is 3 years, no other. They insist in their cardholder agreement that DE law applies, let them suffer the consequences. ALL cardholder agreements have a choice of law provision. Better yet, request a hearing and make their idiot lawyer explain why he doesn't understand the SOL his client insisted upon using. They don't mention the SOL in the agreement. They never tell you what "Delaware law" means. There is a reason for that; they don't want you to know. Let them explain that to the judge too. In approx 2009 Chase eliminated ARB from their agreement.

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