hot in az

My Two Year Case with Midland

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Definitely file an opposition to the MSJ, even if it's past the time allowed. I was just saying not to object to the new motion (for a continuance of trial) because that is what you want, no need to do anything about the new motion.

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Wow, now you know why I'm a little confused. My initial reaction to the new motion for continuance was exactly that they are stalling.

The first trial was set for April 25th. They had really done nothing and no motions so I was thinking easy going here in trial. Then they did not show up.

They sent MSJ a month later and the new court date came a week later for June 20.

So again no problem file MOSJ.

Then today a week before trial I get this motion for the continuence.

So now I need to get MOSJ filed and Anon Amos said to ignore new motion but I felt that was wrong so TY shellie.

My real question is since MOSJ is due one day before trial should I go to court tommorow and file an opposition to the continuance motion.

It seems that they are going to make me work for my win. LOL

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I would if it were me, because if they do not grand the MSJ the day before trial, then you will not be giving them any more time to file any more BS.  If you have your ducks in order, they won't be able to try and introduce anything else, especially the day of trial, you will object to it.  I don't see how more time for a trial will help you if you already have your defense laid out to go with what they have--If it were me, I would make them squirm.  If they don't get their MSJ, and the file does not get continued, I bet they dismiss.

 

Definitely file an opposition to the MSJ, even if it's past the time allowed. I was just saying not to object to the new motion (for a continuance of trial) because that is what you want, no need to do anything about the new motion.

 Anon A there is already a trial set for June 20, it is the day after their MSJ hearing.

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I think the time line to file a motion is 10 days prior to trial. I will call the court tommorow to find out if it is Thursday of did their continuance get granted.

Do I have 30 days from day I got in mail to file MOSJ?? Hope so that would be next week instead of tommorow and I'm not done. Doesn't appear too many people from AZ have gone to trial. Again thanks for help

no in the justice of the peace courts they are 10 days to file opposition and 10 days for them to file a reply. Have you filed anything today?

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Clarify something for me.  So you were going to trial.  they filed a MSJ, and you had 30 days to oppose it.  Your trial was already set.  My question is, when was the trial?  Is it before you should hear on the MSJ?  If so, I would oppose the continuation of the trial.  They are trying to put it out in case they don't win the MSJ, but if you are ready for trial, ready to file a motion in limine to strike their affidavits, I wouldn't let them continue it if I could help it.  Then you will be done, and they won' have time to come up with more.  MSJ's are an easy out for them.  If they think they have the proof for a MSJ, then they should have it for the trial.  They are stalling.  If you are ready to file your limine, I would file it, I would file your opposition to the MSJ, and I would type up the opposition to the continuance.  They want to be heard on the MSJ before the trial, and if the trial is first, I would go to the trial.

I would oppose both. because they like to mislead the courts and confuse the clerks. The MSJ is a way to bully you into settlement.

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Then today a week before trial I get this motion for the continuence.

So now I need to get MOSJ filed and Anon Amos said to ignore new motion but I felt that was wrong so TY shellie.

 

I'm sorry for the confusion, I misread something and was off track. I was thinking that their motion was to proceed with a court date that you already had in case they lost the MSJ (and not to extend the litigation). Just strike my post for the record. and I will be more careful.

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@ Admin These MSJ's in Maricopa county are misused a lot to deny defendants even a trial. I will help tonight to iron out the opposition.

 

@hot in az I would need to know their MSJ and Their Motion for Continuance. There are a lot of rule changes and the JCRCP are what the judges are using.

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I'm sorry for the confusion, I misread something and was off track. I was thinking that their motion was to proceed with a court date that you already had in case they lost the MSJ (and not to extend the litigation). Just strike my post for the record. and I will be more careful.

I do however stand behind my main and original point of filing an opposition to the MSJ; regardless of whether or not you have a trial set for a day after it.

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I do however stand behind my main and original point of filing an opposition to the MSJ; regardless of whether or not you have a trial set for a day after it.

If in Maricopa county you better oppose or the judge will render judgment against you. and oppose the Motion for continuance.  the reason they filed that is because the court may just say fuggit trial is tomorrow so they want to space it out.

 

@Anon Amos: great advice and since the OP is not really ready for trial a little further time only helps plaintiffs.

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Ok, Thanks for all the help. I know that I have to file the MOSJ. Have been working on it. Plan to file it on Monday and Seadragon gave me help with my motion to oppose the continuance. Is it past the time frame of 10 days prior to trial to file the Motion in Limine?

Trial is the 20th. Monday will be within the time frame to file the MOSJ because they mailed it I have 5 days past the 30.

 

And I am very ready for trial.  They filed this last July. One more question before I get started on MOSJ.

When they sent disclosure they listed 4 custodians or trial witnesses. When I sent disclosure I called the one that signed the affadavit from Midland dated july of 2012.

In their MSJ they sent a new affadavit from a midland employee dated May 2013. She also signed the affadavit same day on the paperwork of the other ladies case they sent me by accident.

 

With all her personal information on it.  Can I use this in the trial in any way??  Mainly the date being 2013 and the alleged sale of accts 2011.

And the affadavit of officer of OC signed march 2012.  Seems like this could be used somehow..

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file the limine anyway, he won't rule on it before trial, but your objections will be in there for the record.  Then you can also use it as a guide for trial, on what your objecting to.  AND if the plaintiff sees you know what you are doing with the limine, they may choose to dismiss.  If not, can't hurt anyway.

 

dated May 2013. She also signed the affadavit same day on the paperwork of the other ladies case they sent me by accident.

 

With all her personal information on it.  Can I use this in the trial in any way??  Mainly the date being 2013 and the alleged sale of accts 2011.

And the affadavit of officer of OC signed march 2012.  Seems like this could be used somehow..

 

 

 

If it were me:

OBJECTION, (object to each one separately) Affidavit is untimely, It was not made at or near the time of events of the cause of action.  There fore it does not meet  ARE code xxx (look what code it is, 803 for federal) for the business records exception and are hearsay. Affidavit was made solely for the purpose of litigation, and do not support the business records.

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I would be inclined to bring the other ladies one along also and charge the affidavit as a robosigned document.  Or put it in the limine, with the other affidavit attached with those charges also.

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Thanks will do . It looks especially bad when she signed one from Capital One and the other from Chase

LOL. I think I will put it in the Limine

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Okay in case anyone else in Arizona gets this I will post the Motion and Order to Continue Trial.

Memorandum of Points and Authorities

Presently the trial is scheduled for xxxxxx. This is a simple case which involves the collection of any outstanding defieciency balance pursuant to a written contract. (haven't seen a contract)

Plaintiff filed a motion for summary judgement in this matter which, if granted will alleviate the need for a trial.

Wherefore, Plaintiff requests that the trial in this matter be continued for a short time to allow a ruling on the Plaintiffs motion. This motion is not brought for the purpose of delay, and Defendants will not be prejudiced if the Plaintiffs Motion is granted.

In fact, both parties will save time and costs if the Motion is granted.

My Motion to Oppose:The defendants oppose the motion and order to continue trial because of the following reasons.

The Plaintiff's have already had one continuance.

There are material facts at issue necessitating a trial. Also, a motion for summary judgement is not a substitution for a trial.

This motion prejudices the defendants as it creates a preference for Motion for Summary Judgement over a trial on the merits, which is the opposite of what the statutes are designed for.

Therefore the defendants request to continue with trial on XXXXXXX

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@hot in az

 

Defendants will not be prejudiced if the Plaintiffs Motion is granted.

 

Did you mean "Plaintiff will not be prejudiced if Defendant's motion for a continuance is granted."?

 

I'm not an attorney, but I don't see where you've given a reason for a continuance.   I apologize for not reading every post.  Why do you need a continuance?

 

From the AZ Supreme Court.

 

Most Arizona cases have advocated a rather stringent standard for granting summary judgment, in accordance with our decision in Peterson v. Valley National Bank, which held that "summary judgment ... is not a substitute for a trial" and "litigants are entitled to the right of trial where there is the slightest doubt as to the facts." 90 Ariz. 361, 362, 368 P.2d 317, 318 (1962).   Orme Sch. v. Reeves, 166 Ariz. 301, 305, 802 P.2d 1000, 1004 (1990).

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I'm NOT an attorney, but here are a few things I learned in Arizona courts over the years:

 

You need to file a motion for extension to respond to MSJ immediately and then RESPOND!    Your response is titled "RESPONSE" (not "reply" as in the sample posted).  The "REPLY" is then filed by Midland.

 

Don't use the samples posted here as they make no sense (at least not to me)  and they are not related to YOUR case.   A motion for summary judgment comes with statement of facts.  

 

You need to respond to the attorneys' statement of facts and prepare a controverting statement of facts and utilize YOUR defenses.

 

Nobody can help you unless they have the FACTS about YOUR case.

 

Don't speak in the 3rd person unless you're a king or queen and don't use words and phrases you don't understand.

 

NEVER submit your filings under penalty of perjury.  ONLY an Affidavit (Declaration) is notarized and if you have a fact to submit to the court that you know for sure will help your case (they're listed in your controverting statement of facts), prepare a separate affidavit.

 

I can't say what YOUR chances of prevailing are, but I got Midland dismissed for the old 3-year SOL.  I also objected to the documentation, which the moron judge denied (he hates me), but most likely would have been reversed on appeal.

 

If you need some help with filings, read my Acarta filings at http://liarsandcheats.info/debt-buyer-acarta-lawsuit-in-arizona-appeals-court-interest-documentation-sol/

 

Remember that I'm NOT an attorney and that while the appeals court remanded to superior court, I made a HUGE mistake by not filing a cross motion for summary judgment.  While the appeals court ruled in my favor with regards to STANDING as the chain of title for the account was broken, Acarta is now subpoenaing docs from Chase and the previous debt buyer.   The judge just gave them 60 days to get that done at the status conference yesterday.

 

So in the best case scenario, not having filed my cross motion for summary judgment means a lot more work for me.   

 

Since Midland sued me after I filed the appeal brief for Acarta, I knew much more, filed my cross motion for summary judgment as part of my response and it was granted.   Had I done this for Acarta, I'm sure the appeals court would have granted MY cross motion and I'd be done with this crap.

 

So read my Acarta filings, especially the parts in my appeal briefs regarding the documentation, read the appeals court ruling (but do not cite it) and most important, read the cites in my filings that appear appear appropriate to your case.  It's perfectly ok to copy/paste a paragraph here and there from other peoples' filings, but it's best to use cites from citable cases.

 

You have to make sure that you properly REFERENCE everything from your controverting statement of facts and affidavit in your motion (lots of work).

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I just read the opposition to continue the trial.  Not being an attorney, I NEVER want to go to trial.   I have to be able to research Google scholar to come up with LEGAL arguments. 

 

That's not to say that you can't prevail at trial, but it depends very much on your lawyering skills and how much your judge likes or hates you.  If I KNOW that the plaintiff can't prevail as when Cap One sent the docs for another account to the court, I'm in favor of going to court as they won't have time to get the right docs.   But even in that case the judge denied my dismissal with prejudice and Cap One immediately sued me again.

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Ok Here goes on the MSJ from Plaintiff:

Plaintiff moves prsuant to Rule 56 for summary judgements in Plaintiffs favor against Defendants.

There are no issues of material fact preventing the entry of summary judgement in favor of the Plaintiff. This motion is supported by the attached Memo of Points and Authorities, the seperate statement of facts filed contemporaneously, and all other pleadings and exhibits previously submitted to the court.

Memo of Points and Authorities

Issue

Defendants entered into acredit card agreement with Chase under acct number XXXxxx

1. Plaintiff Midland is the successor in interest to Defendants debt to Chase.

Defendant owes Midland, as the holder xxxxxx.

This amt includes principal, accrued interest, minus any payments made.

Law and Argument

A. Standard of Review

Rule 56 mandates that summary judgement shall be rendered forthwith if the pleading, despositions, answers to interogatories, and admissions on file, together with the affadavits, if any, show there is no genuine issue of material fact and that the moving party is entitled to a judgement as a matter of law.

The party seeking SJ bears the initial burden of informing the court of the basis for the motion, identifying those portions of the pleadings, depositions, answer to interogatories, admissions on file, and affadavits which it believes demonstrate the absence of genuine issue of material fact.

(They threw in a couple case laws here)

Summary judgement should be granted if the facts produced in support of a claim or defense has so little probative value that reasonable people could not disagree with the conclusion advancedby the proponent of the claim or defense.

B. Defendants entered the credit card agreement for a chase bank credit card, the Debt from which is currently held by plaintiff

Under applicable law governing credit cards, an agreement does not neccisarily arise from the signing of the application for credit by the defendants. Rather Defendants entered into a contract with the original creditor by accepting that creditors offer to extend credit and by using the offered credit card.

The acual use the the card gave rise to the contract.

Lots more case law here.

The issuance of a credit card is but an offer to extend a line of credit..use of the card by the offeree makes a contract between two parties according to its terms

Use of the card creates an agreement. Defendants have not met obligations under the agreement, namely to pay the credit issuer for the extension of credit. Now, Defendant owes the current holder of the debt the original principal, and all interest accrued. Orme School vs Reeves

C.

Defendants are in Default on the Credit Agreement

Defendant used the credit card. Plaintiff's predecessor-in-interest provided funds for defendants use.Defendant agreed through use to pay the issuer for extended credit.Defendant faile to meet obligationsunder the credit card agreement.

Defentdant owes Plaintiff as successor-in -interest to Defendants credit card debt with Chase the amount in default plus interest.

D.

Defendants as a Marital Community Owe Plaintiff Jointly for the Deficient Balance Plus Interest

Arizona is a community property state. (Self Explanatory here)

E.

LOL they skipped E and went right to F

F.

Defendants have failed to comply with the requirements of Ariz.R.Civ.P.26.1 and disclose the factual basis of the defense the legal theory or any witness or evidense. to be used at trial

(I did send them this on Jan 13 so do I just attach a copy to MOSJ?)

Conclusion

As a matter of law Defendants owe Plaintiff the full amt plus accruing interest. Plaintiff request summary judgement on all claims and awarding Plaintiff its damages from this breach, along with prejudgement interest and atty fees.

Okay there you have it.

As

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Not being an attorney, I NEVER want to go to trial.

 

Honestly, neither do they. That is why they try to settle at every turn. A trial is the last thing they want. They know as well as anybody that if a defendant gets through and MSJ and all the way to trial, anything can happen. They don't like risk either.

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Called the court. Plaintiff filed MSJ with them May 22 which puts my 30 days to respond 1 day after trial. She said the judge may move to vacate but it was still on the books. So I don't think filing for an extension is needed. I should on Monday file motion to oppos their motion to continue trial, a motion in Limine, a cross MSJ, And a MOSJ.<br /><br />And hope the trial stays on the books. Thanks again to all you who have helped.

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Plaintiff filed MSJ with them May 22 which puts my 30 days to respond 1 day after trial.

 

You have 30 days PLUS 5 days for mailing to file your response.  You might want to call the clerk and ask whether they can give you the due date (and best record that call.)

 

The msj doesn't mention ANY exhibits.  What did they provide to you?

 

I don't think any judge could grant that motion for summary judment as long as you oppose it.  

 

Also, did you file notice of your Rule 26 disclosures with the court?

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As i was going thru the MSJ to find the new affadavit I realized they had sent me papers with Judgement on them.<br />Also an affadavit of their costs and a Motion for Award of Atty Fees and Costs. Is this strange?/

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Sorry forgot about the exhibits. ok MCM Statement<br />Field data printed forom electronic records provided by chase with acct info codate my nam acct #<br />acct statements from chase facimile not original<br />three affadavits<br />2 from midland employees with different dates and one from officer of oc signed mar 2012. pool of accts sold off 11/11<br />cardmember agreement<br />account general workscreen from chase one says facimile one doesnt<br /><br />Also motion for award of atty fees and costs in a seperate motion<br /><br />The clerk says they filed msj on May 22 but judge could sign anytime so I better hop on down to the courthouse and file a response to their motion to continue trial. as they asked for an accelerated ruling<br />

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oh, Yes I did file disclosure with the court as well as sent them rr to atty

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