Motion to Dismiss bc SOL expired: in AZ

[AZanonymous]

Hello all. I tried to search for the answer prior to this post and didn't have luck with my specific questions.

Cap1 filed a complaint in Jan of this year. The last date of payment (based on the information they provided per discovery) is April 25, 2008. Per the contract, again that they provided thru discovery, Virginia law governs the contract. Therefore, the 3 year SOL for an open account has expired.

I have already filed an answer. I was served with discovery and request for admissions. I have not responded because I intend to file a motion to dismiss based on the expiration of SOL. I have absolutely no idea how to compose a motion to dismiss for this.

Do I have to cite case law?

If so, do I have to cite AZ case law since that is where I live or VA case law since that is the state governing the contract?

Does anyone have case law that would be applicable that I could use?

What verbage do I use?

Does anyone have a template or example they used?

How do I include in the motion a request that they reimburse my court costs?

Can I sue them for intentionally pursuing a case that is time-barred?

What am I missing?

Thank you a million times over.

[kutuzov]

Check this post:

http://www.creditinfocenter.com/forums/there-lawyer-house/312783-aw-just-served-today-az-am-systems-llc.html

we are just talking about the same. If you find a case law post it! so it will help others.

[BV80]

Yes, you would need to cite case law to support your choice of law claim. Something that would include choice of law regarding governing law, agreements, and, if possible, the SOL.

[AZanonymous]

**Below is my motion. I quoted several cases and although you can't see the references to the specific case law in this post, they are included in the footnotes of my motion.***

Capital One Bank (USA), N.A.,

Plaintiff,

vs.

MY NAME,

Defendant

MOTION TO DISMISS PLAINTIFF’S COMPLAINT WITH PREJUDICE

MY NAME (“Defendant”), appearing pro se, hereby motions this Court to dismiss the Plaintiff’s complaint filed DATE with prejudice pursuant to Rule 12((6) of the Arizona Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The following is in support of this motion:

I. FACTUAL BACKGROUND

Plaintiff filed the summons and complaint against the Defendant. The complaint alleges breach of contract and account stated due to Defendant’s failure to pay the amount owed on a credit card account with Plaintiff.

Defendant denies all allegations as to the money owed, further claiming that this debt is not his.

Defendant was served with the summons and complaint and then filed an Answer and Counterclaim.

Defendant moves to dismiss the complaint with prejudice as the commencement of this action is barred by the statute of limitations.

II. LAW AND ARGUMENT

The Plaintiff’s failure to state a claim for relief is so basic that it cannot be waived. Mallamo v. Hartman, 70 Ariz. 420, 222 P.2d 797 (1950). In considering such a motion, all material allegations of the complaint are taken as true and read in the light most favorable to the plaintiff. Logan v. Forever Living Products International, Inc.,203 Ariz. 191, 52 P.3d 1269 (2001). The motion should not be granted unless it appears that the plaintiff would not be entitled to relief under any state of facts susceptible of proof under the pleadings. Mohave Disposal, Inc. v. City of Kingman, supra; Veach v. City of Phoenix, 102 Ariz. 195, 427 P.2d 335 (1967). If the deficiency in the complaint is one that can be cured by further pleading, the motion should be denied or, if granted, the plaintiff should be given leave to amend. Republic National Bank of New York v. Pima County, 200 Ariz. 199, 25 P.3d 1 (App.2001).

Plaintiff has failed to state a cause of action under the Arizona Statute of Limitations.

The appellate court in Cheatam v. Sahuaro Collection Service, Inc. held that “[a] cause of action accrues whenever one person may sue another…[A] party’s failure to assert a cause of action does not mean that the cause of action has not accrued.” In Krumtum v. Burton , the Arizona Supreme Court addressed the accrual of causes of actions and the statute of limitations in A.R.S. 12-543 cases specifically. The Krumtum Court found that the services provided by the plaintiff to the defendants had been furnished on an open account. The Court defined an open account as “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 for an open account is three years. The statute of limitations begins to run on an open account from the date of the last item. H.B.2412 (amending A.R.S. 12-548) did not take effect until July 20, 2011. The statute of limitations had already expired for this specific case as of May 28, 2011, nearly 2 months prior to the change of law now governing statute of limitations and choice of law for credit card debt. “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. Therefore, “[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.”

In this case, the alleged credit card agreement between defendant and Capital One Bank(USA), N.A. was an open account. The cause of action for the unpaid debt therefore accrued no later than May 28, 2008, after the last charge had been allegedly incurred by the defendant. The plaintiff had until May 28, 2011, at the latest to file a claim for the alleged unpaid debt under the governing law for credit card debt at that time. The plaintiff filed its claim in January of 2012, 8 months past the statute of limitations deadline.

Therefore, Plaintiff’s complaint should be dismissed with prejudice pursuant to Rule 12((6) for failing to state a claim upon which relief can be granted.

III. CONCLUSION

Plaintiff’s complaint presents no claim upon which relief may be granted. The statute of limitations bar the claim for the alleged unpaid debt.

Therefore, Defendant respectfully requests that this Court render a judgment against the Plaintiff dismissing the entire complaint against Defendant with prejudice. Defendant respectfully requests costs and fees in connection with litigation and defending this action against him be awarded, as well as all such further relief that this Honorable Court deems just.

RESPECTFULLY SUBMITTED this day of March, 2012.

[BV80]

You can try it, but, in my opinion, it probably won't work. AZ statute 12-548 states that a credit card is considered a written contract, the SOL is 6 years, and the laws of AZ apply if there's a conflict between AZ and another state.

12-548. Contract in writing for debt; six year limitation; choice of law

A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:

1. A contract in writing that is executed in this state.

2. A credit card as defined in section 13-2101, paragraph 3, subdivision (a).

B. If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies.

[legaleagle]

The problem with Cap 1 is that at some point in time they changed their agreement to specify either their SOL or yours, whichever is longer. You have to determine this date and see if it applies to your account. You can argue the SOL if there is an agreement between both parties agreeing to VA law, which there is. No court should set this aside.

[AZanonymous]

Yes, unfortunately AZ did change their SOL to 6 years. My case rests upon the fact that the new 6 year SOL didn't take effect until July 20, 2011 and the statute of limitations on my case expired May 28, 2011 (before that new house bill passed). Even though the law says 6 years now, it was 3 years when it ran out for my case.

ARS 12-505 says, "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." If this is true, then this case should be time-barred.

At least this is my unprofessional opinion:?:

[BV80]

The problem with Cap 1 is that at some point in time they changed their agreement to specify either their SOL or yours, whichever is longer. You have to determine this date and see if it applies to your account. You can argue the SOL if there is an agreement between both parties agreeing to VA law, which there is. No court should set this aside.

AZ statute 12-548 specifically states:

B. If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies.

[kutuzov]

As principle of law is that a law is not retroactive, unless it benefits the culprit.

For example if a law legalize wee then all ofenders are now free of any criminal charges, and must be set free. In that case it is retroactive. Now during the prohibition years, the law enforcement could not charge someone for selling or using alcohol before the law was passed. Same applies for civil laws. Anyone that defaulted in Arizona up to the date the law was passed, so if I defaulted in Arizona on july 19 2011 I still go with the old law, not the new one.

You should be fine.

[kutuzov]

ex post facto laws are expressly forbidden by the United States Constitution

taken from wiki, so read the constitution it's there.

[kutuzov]

Found it for you:

Article I

SECTION. 10.

No State shall enter into any Treaty, Alliance, or Confederation;

grant Letters of Marque and Reprisal; coin Money;

emit Bills of Credit; make any Thing but gold and silver

Coin a Tender in Payment of Debts; pass any Bill of Attainder,

ex post facto Law, or Law impairing the Obligation

of Contracts, or grant any Title of Nobility.

[BV80]

Part of the problem is finding AZ case law stating that a credit card is considered an "open account". If you look at AZ case law regarding open accounts, they're with stores and specific businesses...not credit card companies. If corrina can't convince the court that the cc account is an open account, the court will rule it's still within the SOL.

It doesn't hurt the corrina to try, but she needs to be prepared in case the dismissal is denied.

[kutuzov]

Read the Truthin-Lending Act it should specify what a open account is, and a credit card should follow those definitions. That's federal law, but I found this old posts see if you can get something from there, aperantly is a long lasting issue in Arizona.

http://www.creditinfocenter.com/forums/there-lawyer-house/278047-credit-card-debt-written-contract-not-open-account.html

[legaleagle]

I think she's got them with the law change, her case should be grandfathered in under the older SOL.

[BV80]

Read the Truthin-Lending Act it should specify what a open account is, and a credit card should follow those definitions. That's federal law, but I found this old posts see if you can get something from there, aperantly is a long lasting issue in Arizona.

http://www.creditinfocenter.com/forums/there-lawyer-house/278047-credit-card-debt-written-contract-not-open-account.html

Read Nascar's replies in that thread you provided from these forums. As he stated, TILA defines open-end credit, not open account. An open account can be different from an open-end credit account.

The case law in AZ for open accounts were based on individual businesses that provided services or products. The accounts were for those businesses only. In other words, you could purchase products from Business #1 and charge it to your "account", but you couldn't go to another company and charge items to your account at Business #1. You also don't necessarily need a credit card for an open account. You simply have an agreement with the company. That's your typical open account.

A credit card with AMEX or Cap1 allows you to charge products or services from multiple businesses to the same account.

I hope Corrina is able to use the 3 year SOL. My point was she should be prepared in case she can't. If there were case law to back up the 3 year SOL, no problem. But there's not. You don't tell people something is definite when you have no statute or case law to solidly back up your claim.

Edited March 24, 2012 by BV80

[AZanonymous]

"Generally speaking, an open account is 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).

To supplement this, the credit card agreement from Cap1 specifically says and I quote, "Your account will not be closed until you pay all amounts you owe us under this Agreement." Cap1 has defined the account for me, they say that if there is still money owed (which there obviously is if they're suing me), then the account will be considered open.

My thinking is, Cap1's own terms of agreement in combination with the case law cited above should meet the burden of prooving this is an open-account. Keep in mind that we only need to prove that it was an open-account by old AZ law standards not by the new 6 year sol standards.

[legaleagle]

I would argue that Cap 1 insisted on VA law, and you agreed to be bound by it. The state has no vested interest in this case. The contract is clear, both parties agreed to it, and no court should set it aside. They list a qualifier in the statute that says contracts signed in this state, (paraphrasing) then they contradict that by saying that a credit card applies the same way, when that agreement was actually formed in VA where the bank resides. You can also argue, although it be a bit weak but true, that no state has the power to regulate a national bank. Most cases I've read for choice of law involve car wrecks, divorces, and specific contracts where both parties agreed to something specific and there was a conflict of law.

[AZanonymous]

I completely agree that the terms of the agreement should be upheld in a court of law, because as you mentioned both parties agreed to these terms. And, the terms of agreement say VA law.

I decided not to pursue that argument because I had read so many things saying that AZ does what it wants when it comes to choice of law. I weighed my chances and thought that just defaulting to AZ 3 year sol would be easier than trying to convince the court to go by VA 3 year sol. Either way it is 3 years.

On a side note, I received Request for Admissions from Cap1 last month. Instead of responding formally to each admission I sent them a letter (attached to my motion to dismiss their case) that said:

To whom it may concern

I have received your request for Non Uniform Interrogatories, Request for Admissions, and Request for Production of Documents; on DATE. Please consider this letter my Response to all above requests.

Cap1 as well as your law firm are in violation of Arizona statute of limitations. You will find enclosed my "Motion to Dismiss Plaintiff's Complaint with Prejudice". The complaint alleged against me is unfounded and barred by AZ Rules of Civil Procedure.

Since your Complaint and Summons is unlawful I am exempt from participating with the AZ rules of discovery.

Sincerely,

UpYours (lol, didn't really sign it that way but that's what I'm implying)

I know Cap1 was banking on me not responding to their Request for Admissions, that way they could base their case off of those "admissions". But, I am not about to comply with the rules of discovery when their not entitled to such a civil procedure. The only way their getting anything out of me is if my motion is denied.

[legaleagle]

You cannot refuse to answer based upon an unadjudicated legal conclusion, they will beat you up with this. The court has to decide that the SOL is expired, not you. If you don't answer they will get these deemed as admitted and get a judgment agaisnt you. You should absolutely pursue the SOL, that is your best defense. If you want a really crazy theory, try this: the credit card agreement says that you'll be bound by VA law AND federal law. (All of them do, they are regulated by the fed) Threaten to remove the case to federal court, taking it out of the hands of AZ. I don't think there is a federal SOL for this type of case, most of their statutes are criminal. However, check this out independently, I only looked briefly. Ther may be something under TILA or Regulation Z.

[AZanonymous]

Okay. Well is there a basic basic basic general objection that I can use in response to their Request for Admissions? or do I have to respond one by one? I don't want to answer one of those questions "wrong" and give them a leg to stand on.

[BV80]

"Generally speaking, an open account is 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).

To supplement this, the credit card agreement from Cap1 specifically says and I quote, "Your account will not be closed until you pay all amounts you owe us under this Agreement." Cap1 has defined the account for me, they say that if there is still money owed (which there obviously is if they're suing me), then the account will be considered open.

My thinking is, Cap1's own terms of agreement in combination with the case law cited above should meet the burden of prooving this is an open-account. Keep in mind that we only need to prove that it was an open-account by old AZ law standards not by the new 6 year sol standards.

I couldn't pull up the specific case you cited, but it appears the defendant had business dealings with one particular company. The defendant probably couldn't go to different companies (such as restaurants and clothing stores) and charge goods to Connor Livestock. Only services and products provided by Connor Livestock could be charged to the Connor Livestock account.

That's an open account.

If Cap1 wants to fight, they may point out the differences between the open account in the case law and the average credit card account which allows you to go to many different businesses and charge goods to one credit card account.

As I stated, I hope the judge will agree with you. BUT, if Cap1 decides to fight it, you have to be prepared. I hate to see us Pro Ses get disappointed.

[legaleagle]

Post them here, they are easy to answer.

[kutuzov]

You don't have an easy go on this one. If you pick VA SOL, your judge might not like it. If you pick AZ SOL, you got the issue of the open account definition.

Now the one thing you could do is make them prove that is a writing contract, and to come with the evidence. Since they don't have it, it will be clear that is not a writing contract and falls in the 3 years SOL of AZ. It might work it might not.

The other one is move it to federal as legaleagle sugested, but I got no clue how that could go.

[kutuzov]

Check this one out. In Florida there was a similar issue about SOL. Maybe you could take some ideas is very complete, and maybe translate it to Arizona.

Case Law - FL Credit Card SOL 4 Years

[punctured]

I would love to hear an update of how this has gone, as I've been looking at the same possible courses of action in my AZ lawsuit. Which tack did you choose, out of state, choice of law SOL of 3 years or the AZ "grandfathered" SOL of 3 years? How has the case gone?

Edit: Nevermind, I found the thread.

Edited May 26, 2012 by punctured