hot in az

My Two Year Case with Midland

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"The clerk says they filed msj on May 22 but judge could sign anytime"

 

That's crazy!  I don't think that they can ask for a ruling or that the judge would sign it PRIOR to the time that you have according to the AZ rules of civil procedures.

 

In fact, if I were you, I'd ask for a 30-day extension (and ask the attorneys before filing with the court and if they don't agree, there's a nice counterclaim!) although it seems like you're still trying to go to trial.

 

Have a look at the Acarta Chase exhibits and what the appeals court had to say.  Again, oral arguments (as trial) screwed me up as the appeals court made some reference and I wish we could have just worked off the filings.

 

It sounds like Midland purchased directly from Chase and that makes it more difficult.  But with the proper objections you should prevail at least on appeal as some other pro ses in AZ did,  I think it was against Citi, because the original creditor must provide competent testimony about their accounting systems and all that stuff.  There's also an AmEx bk case in the 9th circuit.

 

"one from officer of oc signed mar 2012"

 

Looks like they might possibly get better documentation now.   But, I'd have to see it.  In my case they didn't have an account # or any identifying info on the bill of sale and that was one of the appeal court's issues raised.

And I really hope you have counterclaims!    Still the best way to get them to go away.

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The affadavit of sale of account from officer of oc says In my position I am aware of the process of the sale and assignment of electronically stored business records

Aroun 2011 Chase sold a pool of accounts.

As part of such sale electornic records and other records on individual accounts were transferred to buyer. kept in ordinary course of business

Thats it

And the bill of sale is redacted of course so my name is on cc statements and does show pruchases and payments. All facsimiles.

But not on the bill of sale

I could ask to extend 30 days but I am getting so tired of all this so I feel that I file all the motions on Monday and prepare for trial on Thusday

And I have never once talked to any atty or any of the prior 6 or 7 that had chain of command before Midland

I'm pretty unreachable. They finally had to serve me by alternative methods.

And they filed one month prior to the three yr SOL so thats not an option.

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Ihave seen a lot of rulings from the Maricopa Justice of the Peace Courts that are wholly opposite of the rules. The OP has to oppose because the plaintiff is using the MSJ as a "Trial by Declaration" The points to oppose are common to all debt cases. The OP has trial and the court has to rule on the MSJ so getting ready for trial will be a best bet.

 

@ Christine I believe I have read your appeal opinion but don't want to disclose personal info. You did good under the circumstances my hat of to you.

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I have my MOSJ ready to go.Decided not to strike affadavits but do it at trial Also for anyone in AZ amended laws. Have a copy of your judgement to take to court to serve on Plaintiff and it will help to prepare your affadavit of costs and take with you to file so you dont' have to come back to court to do that.  Court on Thursday. I post how it went. thanks to all who helped  along the way

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Good luck, hope it works out!

 

Decided not to strike affadavits but do it at trial

 

There are rules requiring to TIMELY object to evidence.  Surprises like that are not favored by the courts.

 

Also, in my courts (justice and superior Kingman) we don't bring statements of costs to trial, but have 10 days to submit if awarded costs.  Bursey & Associations filed their attorneys fees with their msj, but that's odd because you can't know what the total time spent would be.  Apparently they didn't expect a response.

 

Anyway, good luck!

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The reason is the law 54 © was amended and requires them to dsend a judgement form (both parties to serve in court) as well as they have to have affadavit aof attorney costs seperate and affadavit of verified cost sent  to Defendant in MSJ. I believe it is a tax thing from reading the laws. They have to break out taxable. So I have my verified cost sheet notorized 2 self addressed envelopes for the court , my judgement againt the plaintiff.

And the judge denied their motion for continuance so the big day is tommorrow.

And I have a surprise for them I will share with you all after I come back from trial.

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...

 

@ Christine I believe I have read your appeal opinion but don't want to disclose personal info. You did good under the circumstances my hat of to you.

 

Thanks, it's actually online along with all the filings, just put the link in my sig.

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The reason is the law 54 © was amended and requires them to dsend a judgement form (both parties to serve in court) as well as they have to have affadavit aof attorney costs seperate and affadavit of verified cost sent  to Defendant in MSJ. I believe it is a tax thing from reading the laws. They have to break out taxable. So I have my verified cost sheet notorized 2 self addressed envelopes for the court , my judgement againt the plaintiff.

And the judge denied their motion for continuance so the big day is tommorrow.

And I have a surprise for them I will share with you all after I come back from trial.

 

There is no Rule 54©: Rule 54©. Deleted Sept. 15, 1987, effective October 1, 1987

 

Here is Rule 54(f):  Rule 54(f) - Costs

 

[the direct link doesn't seem to work, have to go to http://government.westlaw.com/linkedslice/default.asp?SP=AZR-1000 and then navigate through the ARCP]

 

 

You may have some strange LOCAL rules.  You're supposed to attach proposed orders with motions you submit and you have to REQUEST attorneys fees and costs in your pleading (I forgot that with Midland), but you don't normally include the actual statement of costs and attorneys fees.   It doesn't hurt to have it ready for filing if you prevail in court, but you do have 10 days to submit the itemized statement.

 

If I'm missing something, please provide the LINK to the law. Thanks!

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I'd like to know too. 

 

Since we've been talking about justice court rules, I just found the 8/12 rules at a http://www.azcourts.gov/rulesimpactreport/2012TableofContents/JusticeCourtRulesofCivilProcedure.aspx

 

Essentially they're the same as superior court rules, but they left out many rules that don't usually apply in justice courts.  And they explain the rules in plain English. 

 

Am still looking for the request for waiver of service form as I emailed Bursey (Midland atty) asking whether they'd waive service and I didn't get a reply. If anyone know where it is, please post the link.

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Hi all, Had trial yesterday. For all you in AZ Please read in case this happens to you. Hopefully people here will chime in to advise.

Got to court room. Both attorney and judge were 10 minutes late. Plaintiff submits standard Midland stuff. Faxsimile billing statements, affadavits, redacted BOS, Redacted closing report, field report. Thats it!!!!!! Prior to trial baliff asks if we want to settle. I go in hall with him. He asks do you want to settle?

I said sure I am requesting you to dismiss with prejudice because attached to you MSJ you sent me another persons case and I'm sure they would be glad to know I have their personal info. And who is to say someone else does not have mine?? He said my client would not agree to that. So we go back in.

After all his questioning is over and he had asked the judge to declare me a "hostile witness" which he approved? it was my turn.

I first shot down the Business records used 803(6) and quoted case law. The judge asked for a comment from Plaintiff and he used that law?? So I am thinking good.

Here's where it gets crazy. The judge halts the trial at that point. He say he has not heard of this case law and has not had this kind of trial this year. He's been out all year and a pro tem in. I know because I attended court twice and she was at our first trial where Plaintiff did not show up.

So he needed to review the new JDCPA rules and check on the Case Law I had used. Really?? But the trial would continue on and he would explain that we had one week to explain the new law and get it back to court in a week. The court would then mail each party copies to review. Then he would rule and let us know his decision.

After the other side went I asked for a directed verdict based on the fact they had not proved anything with out a witness Denied

I asked for the affadavits to be stricken (hearsay) denied.

Same for the redacted BOS Denied. Then I gave all my case law with each. The judge always asked the plaintiff to comment and he said I quoted Maryland law once. SO???? It's a brand new law.

I could go in to my whole case but I knew at the point he stopped the trial he would not rule on anything.

After my conclusion I did try one last time to get a dismissal.. Denied

He said we could request a tape if we needed. And he would review the case laws. Couldn't rule on what he did not know.

Gave us both forms to appeal. The tape lady was in a meeting so I can't get it until Monday.

Now here's the really wierd thing. When I checked in with the clerk before trial I asked if any motions had been filed that day. Just in case they had asked for a telephone witness. She said and I quote," There is a motion to dismiss" Now there were still dueling MSJ and my MOSJ out there so I was thinking that they denied their MSJ and they dismissed the case?

Especially sitting in court at 1:10 and no one had shown up.

So in court I told the judge what she said and he looked down at his papers and said she must have been mistaken. The plaintiff did not even know his MSJ had been denied. He asked about it and the judge said to him WHY do you think we are here in court. I think what happened because my MOSJ also asked for MOtion to dismiss with prejudice also is that he signed it not knowing that and was trying to cover it up.

So it was a wierd one. What now guys??? Thanks for reading

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attached to you MSJ you sent me another persons case and I'm sure they would be glad to know I have their personal info. And who is to say someone else does not have mine??

 

That's not a violation as no personal info was disclosed that's not on the public record already.  All court filings are PUBLIC and that's why it's so important to make sure that personal info IS redacted or the document sealed.

 

After all his questioning is over and he had asked the judge to declare me a "hostile witness" which he approved?

 

That's why I do NOT want to go to trial.

 

I quoted Maryland law once. SO???? It's a brand new law.

 

Arizona courts don't care about Maryland laws, what were you arguing?

 

 

So he needed to review the new JDCPA rules and check on the Case Law I had used. Really?? But the trial would continue on and he would explain that we had one week to explain the new law and get it back to court in a week. The court would then mail each party copies to review. Then he would rule and let us know his decision.

 

 

I have no idea what "JDCPA" is and it is quite common for judges to request briefings on certain issues.   However, I seriously doubt that the court will be mailing your brief to the opposing party as that's for you to do.   Make sure you get a copy of the tape so that you understand what you're supposed to be doing.

 

And hopefully the minute order about the hearing will clarify things too.

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Sorry I'm a little brain dead after a week of typing and cramming.

JCRCP and I used Missouri Not Maryland law.

CACH, LLC v. Askew a document that is prpared by one business cannot qualify for the business recored exception etc...

The Plaintiff asked if we would have time to mail to the other party and HE said the court will mail when we recieve it but I will still send a copy anyway of course.

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Sorry, I don't know what JCRCP is either.  Unless that's Justice Court Rules Of Civil Procedures?

 

At justice court level I really would not even try arguing another state's law unless there's NOTHING in AZ litigation to point to.  This is an extremely important issue and I spent days and nights reading all sorts of rulings, but I'd actually have to read my own briefs to see what I found.   This is an issue in a motion for summary judgment filed by Acarta a couple days ago, but I doubt I'll get to working on my response any time soon.

 

 

The Plaintiff asked if we would have time to mail to the other party and HE said the court will mail when we recieve it but I will still send a copy anyway of course.

 

 

That's a STUPID question (how much time does it take to mail a copy of a brief to the opposing party?) and an even more stupid answer.  Doesn't sound right. 

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JCRCP =Justice Court Rules of Civil Procedure. So do AZ. New laws mirror the fed laws? If so you are in a good place. I believe askew was a Supreme Court ruling, so using it should be fine.

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Yes, I know every law I presented was pertinent to the case. Certifed collectors v. lesniak etc. I wish the judge had called a recess to just look up the amended law and proceed from there so I could have had all their bogus "evidence" precluded. I should have done all that beforehand live and learn. Just need to know how I should proceed ?

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It's not that big of a deal to be considered a hostile witness, it is no where near as bad as it sounds. If you won't just roll over for them, you may be a hostile witness. I think in some states they can use leading questions when cross examining you, other than that; it's about the same as a witness.

From what I read, I don't think you did to bad. Ultimately it is going to come down to who ever has the best case law, and does it say what they claim. The judge is going to be persuaded by what the case law tells him / her.

If the judge has not tried a case like this before, and does not know the case law, she made the right decision. If you had good case law and they didn't (you should probably already know this) you should win. If the judge was pro plaintiff or bottom feeder friendly; you probably already would have lost. I do not want to give you false encouragement (as I do not know how well you fought your case) but I think it is good that the judge is actually going to review the case and case law (or at least the case law).

I guess you will know in a week or two. GOOD LUCK

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my case they listed me as one of their witnesses to call, and called me a hostle wittness, just means you are not there to help their case, but they think you have info you have to answer truthfully.

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The declaring you as a hostile witness was so the could ask leading questions on direct examination(which is not allowed on direct). It is no big deal also judges wait to render decisions all the time. I worry that the judge says that there will be more argument but there will probably not. The new rules are easier to read but there are slight procedural changes in the new rules that benefit the prepared.

 

I think you did great, didn't get tongue tied, was respectful, got your objections in on the record and the fact that she will make sure of the ruling is basically because these Justices of the Peace may be a little gun shy after several now pro per appeals have been remanded back(which is basically a black mark on their record if the governor or federal courts are looking for judges).

 

I am crossing my fingers and toes, You did a great job.

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No there will be no more argument He handed us the appeal form.  I was just shocked they could call me as a witness without listing me as one in Disclosure. Took me off guard a little. Guess that's why I was hostile?

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Hi again,

I got in my post trial memo and they sent me theirs. Mostly same case law they used in their denied MSJ.

I need some help in deciding how to reply to theirs. And to make sure mine was ok

 

Can anyone give some advice?/Should I type out both here or start a new post directly for this. Thanks for any help

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I'm thoroughly confused and I'm afraid you totally blew it.   What you've been posting about what happened makes for the most part NO SENSE!

 

No there will be no more argument He handed us the appeal form.

 

And then you post:

 

got in my post trial memo and they sent me theirs.

 

 

 

People have been congratulating you (the blind leading the lame!) and I HOPE you submitted a good brief.  Why on earth didn't you ask for help?????????????????

 

Did you read my motions and appeal briefs?

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No there will be no more argument He handed us the appeal form.  I was just shocked they could call me as a witness without listing me as one in Disclosure. Took me off guard a little. Guess that's why I was hostile?

A party witness who is physically in the court room can be called to testify by any party. as far as Hostile witness it is a term for the use of leading questions. For future members cases: You can be called as a witness if you are in pro per as you will be physically in the courtroom. That is the reasons attorneys came about in the first place so parties wouldn't be called as a surprised (pun intended) witness.

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Hi again,

I got in my post trial memo and they sent me theirs. Mostly same case law they used in their denied MSJ.

I need some help in deciding how to reply to theirs. And to make sure mine was ok

 

Can anyone give some advice?/Should I type out both here or start a new post directly for this. Thanks for any help

This was the Memorandum and argument about the caselaw the judge asked for.

 

Crossing my fingers for a good ruling.

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