ARIZONA BIG WIN AGAIN - COURT OF APPEALS

[davephx]

Original Creditor Suit - Wells Fargo -140 pages of statements, affidavit, variously dated credit card agreements.

All inadmissible hearsay.

Reversed and Remanded Superior Court Summary Judgment

WELLS FARGO BANK, N.A., Plaintiff/Appellee,
v.
COLA D. ALLEN and LISA A. ALLEN, husband and wife, Defendants/Appellants.
No. 1 CA-CV 11-0572.

Court of Appeals of Arizona, Division One, Department D.
Filed December 4, 2012.

This is a FULLY CITABLE DECISION unlike similar Discovery vs. Jankowshi same result of reverse and remand but was not citable.

 

Now if the lower Court Judges will just take note so don['t have to win on appeal!

 

I noted earleir at my oral arguments for SJ my judge himself raised the non citable Discovery case and basically won my dismissal even before I spoke.  Hopefulllly more lower court judges will be so on top of recent Appeals decision.  I hadn't included it in my reply since hadn't come down yet.
 

[VADebtor]

A major victory, but this can still be appealed to the Supreme Court.  It's especially impressive because it was won Pro Se.

 

Is there a link to the actual decision you can share?  I just found the docket.

[davephx]

I doubt if the credit card companies or JDB will appeal since they win like 90% on default.  The decision even mentions that the evidence is enough for default but not if defendant answers and fights!

The similar Discover case was also Pro Se.  The Wells case also cites other cases.

 

Many other States are also deciding this way.

 

The case is on google scholor at

http://scholar.google.com/scholar_case?case=10225908430877265356&hl=en&lr=lang_en&as_sdt=4,3,114,129,135&as_vis=1&oi=scholaralrt

[kutuzov]

Great JOB!!!

[Rivertime]

This is a great case and really good news.  I'm going to trial next week and I'm writting down some of the court's opinion to use as my agruments.  It's fantastic when a court makes them FOLLOW THE LAW!

 

I may have read it wrong but as far as appeal to the Supreme Court, it looks like they just got the MSJ overturned, noe it goes back to the trial court for tiral.

 

Thanks again for posting, it's gonna be a big help for me too.  My arguments for my trial are their affidavits don't adhear to statute be a long shot and are clearly robo afidavits, these arguments are really going to help me... thanks again,

 

rt

 

P.S. I realize I'm in California and the case is AZ, but the logic is the same! 

[SkippieB]

O.C. got served! Fan-tas-tic.  I love how the judge essentially called them out for trying to pull a deault-like fast one on the courts.  Pays to stand-up for yourself.

 

Carol-Lynn

[Princess2]

This is a great case. I have my hearing for Motion to vacate summary Judgement in a few weeks. Its going to be a great help.

[admin]

Nice find!

[Anon Amos]

Congratulations & well done...       

[debtzapper]

A JOB VERY WELL DONE!  A pro se winning an appeal against a law firm is always quite an achievement.  I hope your appellate brief is posted somewhere.  Congrats!

 

BTW. Even appellate judges are impressed by high-quality pro se legal briefs.

[saytar]

I know that case law is in AZ, but I think it is going to be a kicka** Citation. That Judge flat cleaned Wells Fargo's plow. It is now saved in my stable of Citations for possible use, as not many Appeals are even done here on these type case's, so's I use whatz I can get. Most everybody just rolls over and plays dead around here.

[BV80]

Here's 2 great citations from the case:

 

It is not the law that where the plaintiff does establish a case that would warrant submission to a jury, it is necessarily entitled to judgment as a matter of law in the absence of rebuttal evidence by the defense. Comerica Bank v. Mahmoodi, 224 Ariz. 289, 229 P.3d 1031, 1034 (Ariz. Ct. App. 2010).

 

The above states the plaintiff is not necessarily entitled to win a summary judgment just because a defendant may not have evidence to rebut the plaintiff's case.  All we have to do is show there's an issue of material fact because the plaintiff hasn't proven their case.

 

Under Rule 56©, it is the party moving for summary judgment who bears the "burden of persuasion." Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 15, 180 P.3d 977, 980 (App. 2008). This burden of persuasion never shifts to the non-moving party. Id.

[Seadragon]

I loved footnote 3 it made go Oh! Snap!

 

We note with disapproval the fact that Wells Fargo attempted to remedy the lack of proof that accompanied its motion with voluminous records attached to its reply. First, it was improper to introduce new evidence with the reply memorandum. See State v. Oakley, 180 Ariz. 34, 36 n.1, 881 P.2d 366, 368 n.1 (App. 1994). Second, absent some means of authenticating and explaining the documents, they were not "admissible evidence" appropriately considered in the context of summary judgment

[Beergoggles]

Great Job Dave!

[davephx]

While it is only a reverse and remand back to Superior Court, the Appeals judged laid down the law and I doubt if Wells would fight again in lower court since the law is the same.

 

I agree that BV80  nailed one key point that most cc lawyers make that the defendant has to submit evidence to back it vs burden of proof clearly on the cc company.  

 

Another major point is judge said the mountain of evdience good enough for a default case, but not when challanged.  The key is to challange instead of being the about 90% of cases lost by default since most folks have no clue how to do a proper answer (that haven't been here!).

 

While this is an Arizona case almost all states follow closely the Federal Rules of Evidence as does Arizona.  And it can be used as pursavive in other other States assuming they don't have totally different rules.  CA is kind of the odd state procedurely but the legal issues are still the same.  I had never heard of a BOP for example other than in CA.

 

I have been asked privately by some for the briefs.  This was not my case so I don't have the briefs but probably can be found on Pacer - but the citable Appeals Court case is far more important to use/cite than whatever the briefs said.

[SkippieB]

While it is only a reverse and remand back to Superior Court, the Appeals judged laid down the law and I doubt if Wells would fight again in lower court since the law is the same.

 

I agree that BV80  nailed one key point that most cc lawyers make that the defendant has to submit evidence to back it vs burden of proof clearly on the cc company.  

 

Another major point is judge said the mountain of evdience good enough for a default case, but not when challanged.  The key is to challange instead of being the about 90% of cases lost by default since most folks have no clue how to do a proper answer (that haven't been here!).

Exactly.  In California I did extensive research of two other counties on-line cases and the evidence they submitted in default cases up until about a year ago was essentially non-existent.  Then about a year ago the Courts,it seemed, began requring some kind of evidence to support default claims such as an intent to sue letter, final credit card statement from original creditor, and affidavits that the defendant owed what we say they owe.  Most of this stuff is pure hearsay and basically worthless but unchallenged, as the Arizona judge pointed out, is good enough.

 

 

While this is an Arizona case almost all states follow closely the Federal Rules of Evidence as does Arizona.  And it can be used as pursavive in other other States assuming they don't have totally different rules.  CA is kind of the odd state procedurely but the legal issues are still the same.  I had never heard of a BOP for example other than in CA.

 

I have been asked privately by some for the briefs.  This was not my case so I don't have the briefs but probably can be found on Pacer - but the citable Appeals Court case is far more important to use/cite than whatever the briefs said.

[admin]

The case is also here: http://azcourts.gov/Portals/0/OpinionFiles/Div1/2012/1CA-CV11-0572.pdf

[Credator]

Nice find Dave.

Looks like their are two open dates on the calendar:

Motion for Reconsideration due
 Due By:
 Wednesday, December 19, 2012
Re: OPINION (Reversed, Remanded) Hon Peter B Swann - Author; Hon John C Gemmill - Concur; Hon Andrew
W Gould - Concur (Dept D)
Petition for Review to ASC due
Re: OPINION (Reversed, Remanded) Hon Peter B Swann - Author; Hon John C Gemmill - Concur; Hon Andrew
W Gould - Concur (Dept D)
Due By:
Thursday, January 3, 2013

This appears to be an example of what happens when a trial judge is confident that no appeal filing is likely and feels free to ignore the facts and the law. In this case it appears that an engaged pro se decided an appeal was not only appropriate but successfully pursued it until it produced an opinion. It is a bit of a mystery why experienced appellate practice attorneys would risk engaging this case on appeal when they knew or should have known that the trial court record was a disaster for their client. Overconfidence? Perhaps.

 

Whether one is a pro se or an experienced attorney sometimes a situation merits a "folding of the tent".

 

After reading this case it is doubtful the ASC would grant petition for review. IMHO.

 

When Capital One, Wells Fargo, or another big OC appears on the caption I do not see any evidence that they are engaged. It appears that the collection attorney is making the suit decisions as if they are a business partner of the OC or acting as a JDB. Are we to believe, in this case, that Wells Fargo was involved in the decision to risk making adverse case law for themselves and their industry in Arizona? I would love to see the entire contractual relationship between an attorney and an OC suing on an alleged debt collection action.

[howucan2]

 99.99% creditor did not know it is going to be an appellee !

 

Debt collection law firm often stick their foot into their mouth and drag clients with them into the puddle.

[Seadragon]

I also loved footnote 1

The complaint alleged that Wells Fargo had agreed to extend

credit to the Allens “on open account.” “In Arizona it is the

settled rule that the burden is on the person seeking to recover

on an open account to prove the correctness of the account and

each item thereof.”

Holt v. W. Farm Servs., Inc., 110 Ariz.

276, 278, 517 P.2d 1272, 1274 (1974). A “merely general

description” of the transactions between the parties is

insufficient for a plaintiff to recover an amount owing on an

open account; there must be “some descent into detail.”

Trimble

Cattle Co. v. Henry & Horne

 

, 122 Ariz. 44, 49, 592 P.2d 1311,

1315 (App. 1979).

 

 

This a great arizona cite. I bet the judges try to play like they didn't see this. Every AZ CIC member put this in your briefs and SJ oppositions. And what does marvinAZ have to say he is the resident AZ reporter. I think you should make a Utube update Breaking news style.

[Seadragon]

This is a great case and really good news.  I'm going to trial next week and I'm writting down some of the court's opinion to use as my agruments.  It's fantastic when a court makes them FOLLOW THE LAW!

 

I may have read it wrong but as far as appeal to the Supreme Court, it looks like they just got the MSJ overturned, noe it goes back to the trial court for tiral.

 

Thanks again for posting, it's gonna be a big help for me too.  My arguments for my trial are their affidavits don't adhear to statute be a long shot and are clearly robo afidavits, these arguments are really going to help me... thanks again,

 

rt

 

P.S. I realize I'm in California and the case is AZ, but the logic is the same! 

Iwill try to find a similar one in California.