hot in az

My Two Year Case with Midland

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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!

 

 

And then you post:

 

 

 

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?

Really? And for the record lending good moral support sometimes is better than tooting our own horn. I see how you are helping and it helps to tighten peoples mindset up. I am just saying none of us are experts but we do good enough.

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I'm thoroughly confused and I'm afraid you totally blew it.  

I must have missed something, how did HotinAZ blow 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"

(I believe this means that they already had the trial(no more arguing) the judge handed them the appeal form in case the loser wants to appeal. (The judge has not even ruled yet in this case)

 

 

And then you post:

 

"got in my post trial memo, they sent me theirs"

(the judge asked both parties to submit a memo explaining the new rule to the court(if I recall there is some new rule or something like that). So in other words both parties managed to do exactly as the judge ordered, and they are still waiting on the judges ruling.

 

 

People have been congratulating you (the blind leading the lame!)

Hot in AZ beat the summary judgment, managed to get the memo filed on time, and went to trial and is still waiting for the judges ruling. We do not even know who won the case yet. I don't think anyone here is really blind and lame (just people trying to help)but I do get that you are "thoroughly confused" as you put it yourself.

  Why on earth didn't you ask for help?????????????????

Hot In AZ did ask for help, in the very post just before the one you blasted him / her in; quote: "can anyone give some advice? Should I type out both here or start a new post directly for this"?

 

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I guess I'm an idiot because I think that the briefing to the judge was MOST important. 

 

I'm actually WAY busy with my own stuff, so I'm unsubscribing to this topic.

 

Hopefully the original poster will prevail!

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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

That's good that you got it in and on time. I don't know that you really need to reply to theirs (unless they bring up a new argument that you did not address in your memo & you want to respond to it). The main thing was that both parties respond to the judges request and file the memo. At some point the parties have to stop responding to each other and just let the judge rule.

You could post them here to this thread if you wanted more responses to the memos. I personally like all the post relating to a case in one thread (it helps those of us who may be "blind or lame").

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I was going to politely ask her to leave my thread as everything that came from her seemed to be very negative, so glad she did on her own.

 

I will post their memo just in case you think there is something to object to  and I put everything I had into mine so it's either good enough or not.  Not to confuse anyone this is the PLAINTIFF's Post trial Memo.

Memorandum of Points and Authorities

     All of Plaintiff's evidence should be admissable in this case. As to the admissability of such evidence, Defendants have mis-characterized there (they spelled it wrong) legal argument in the issues they raise go to the weight of the evidence offered by the Plaintiff, not to its admissability.

      The Defendant's argument against the admissability of business records offered by a debt buyer fly in the face of the majority of jurisdictions that have addressed the issues.

Fortunately, the Arizona Supreme Court has recently weighed in on all of the issues concerning business records raised by the Defendants in the present case, in a death penalty case, State of Arizona v. Parker 656 Ariz.Adv Rep 6 (3-13-2013)  Thus, if the applied standard works in a death penalty case, it should certainly be applied to the case at hand.

      In reaching its holding in State of Arizona v. Parker the AZ SUP CT relies approvingly on the DC Circuits opinion in United Stated v. Adefehiniti 510 F 3d 319 d.c. cir 2007 and many cases relied on by that court, as an authority for the admission of business records and keeps them in the ordinary course of business Id.

  In that case the court held:

Furthur several courts have found that a record of which a firm takes custody is thereby "made" by the firm within the meaning of the rule (and thus is admissable if all the other requirements are satisfied" We join those courts.

    The Adefehiniti Court citing Matter of Ollag Construction Equipment Corporation 665 F 2d 43 at 46 (2nd Cir 1981) which found that business records are admissable if witnesses testify that the records are integrated into a company's records and relied upon in its day-to-day operations.

The Adefehiniti Court also cited United States v. Carranco, 551 F.2d 1197,1200 (10th Cir.1977) for the proposition that freight bills, though drafted by other companies, were business records of a shipping company because they were "adopted and relied on" by the shipping company.  This category of records has been referred to by the Courts as "adoptive business records" See U>S> v Irvin 682 F3rd 1254 (10th Cir 2012)

    In addition in State of Arizona v. Parker, the AZ Sup CT specifically stated the following

  evidence that has been compiled from a computer database is also admissable as business records  32

-   courts regularly admit business records even when the testifying witness did not assemble the computer records

-there is no requirement that the records have been prepared by the entity that has custody of them

- business records of one entity to be admitted as a business record of another entity if the latter entity relies on those records  and keeps them in the ordinary course of business.

 

  In addition the Court noted that the gaps in the chain of custody go to the weight , not the admissability of evidence.

 

     In the present case , not only has the Plaintiff adopted, incorporated, and relied upon the subject records, it is also an assignee of those business records. Aas an assignee, Plaintiff stands in the shoes of its assignor and has the same rights and remedies as its assignor.

Cal X-Tra v. W.V.S.V. Holdings LLC 229 Ariz  See e.g, Bertozzi v. Collaso 21 Az 388, 392.  As such, it is axiomatic that Plaintiff has the same rights and remedies as it's assignor when it comes to the  integrety of those records.

 

   Furthermore, Defendant appears to be relying of case law that is not controlling in the state of Arizona.  As stated earlier, the majority of the jurisdictions preceded AZ in foloowing the adoptive business records theory. See Russo v. Abington Mem Hosp Healthcare Plan 1998 US Dist Lexis 18595 (E.D. Pa. 1998)(If both the source and the recorder of the information, as well as every other participant in the chain producing the recored, are acting in the regular course of business, the MULTIPLE hearsay is excused by Rule 803(6) citing United States v. Baker.

 

Under Fed R. Evid 803 (6) documents may be properly admitted as business records even though they are the records of a business entity other than one of the parties.  Furthur jurisprudential support for adoptive business records can be found in the dicta of J. Fuld's concurring opinion in Fluery v. Edwards 14 N.Y. 2d 334, 200 N.E. 2d550

   Accordingly, the records proffered at the Trial in this matter should be admissable.

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I was going to suggest reading all the case law they used and forming arguments to all of this, but the arguing is already over (as discussed earlier), however I suppose you could file a response to their memorandum you posted here, if you could come up with something fast enough.

You would have to read those cases they cited and point out how they are misinterpreting them, or how they are entirely different and do not apply to your case (so it would take some effort). You would probably also want to add to the reasons the evidence should not be admissible (they said something about using out of state case law), showing why the evidence is inadmissible under your states rules of evidence and authentication.

I can't say how well of a job you did defending the case or how well you did attacking their evidence as far as it being admissible (but you did manage to get the judge to take time to consider it)

Maybe you should post your memo as well, if it looks like it is lacking evidence rules of your state, or could stand improvement; you may be able to respond to their memo and add some key points (if you missed any to yours).

I would think the judge is going to make his/her ruling soon. Maybe you research the judge, it may be that he is not bottom feeder friendly.

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They also say business records should be admissible if admitted properly, you could quote how they did not admit them properly-- having not gone back through your entire case, but point out things like the affidavit, or the unauthinicated records that were not referenced.

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oh yes and i was go ing to say go to google scholar and look in the 9th district court, AZ is in the 9th district.  search out the same things that were in the askew case, and see if you can find any rulings.

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If anyone has any thoughts on theis I would be grateful to hear them.

In looking at AZ Rules of Civil Procedure to help someone else I came upon this.

Part XI Rule 144 (e)

Dismissal for failure to conclude a lawsuit within 10 months. They filed it 8/12/2012

If a final judgement has not been entered within 10 months from the date the lawsuit was filed, or if a party has not filed a motion to extend time for an entry of judgement to a particular date, the court will mail a notice to Plaintiff and Defendant (have not gotten one)who have appeared in the lawsuit informing them that unless this requirement is met within 2 months from the date of mailing, the court will dismiss the lawsuit for failure to have judgement timely entered. If the requirement has not been met within 2 months from the mailing of the courts notice the court may dismiss the lawsuit without further notice to the parties.

It was weird going back and reading my old posts. In a year I know so much more than I ever thought I would, and still have questions. LOL

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I would go to the clerks office and ask. Maybe you should file a motion to dismiss, even though you are still waiting for judges ruling. I think he stuck it in a pile and hasn't seen it since, it would at least bring it to his attention. But ya gotta send a copy to the other side. ( you knew that, just a reminder)

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I went down there last Friday to see if anything new had come up and to make sure nothing was filed and not posted on the court website. She said she could not find my file. She finally found it in his office and said that the motion to dismiss from my trial was mine that was attached to my MOSJ. That's how I found out about dispotive motions.

She said nothing else had been filed and put the file back in his office.

Should I file a MTD based on Rule 144 even though a letter has not been sent out it has been over a year. I figured when she said she snuck the file out right under his nose I awoke a sleeping giant. But a week later NADA

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I would, he said he would rule and has not done so. It could go either way if he loves those jdb's, but at least you would have your ruling, and could work on the appeal, or you wouldn't have that black cloud hanging over you.

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Could you tell me how to get a redacted motion on my thread. I have to type everything out as I do not know how. And I had someone else who PM's me have to do the same thing. I know it must be easy but I don't know how. Thanks

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If it is a doc you can upload it. If it is a PDF you have to go into word and change it to a doc first. Then at the bottom right here hit more reply options, then at the bottom you can up load the dic.

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I went down there last Friday to see if anything new had come up and to make sure nothing was filed and not posted on the court website. She said she could not find my file. She finally found it in his office and said that the motion to dismiss from my trial was mine that was attached to my MOSJ. That's how I found out about dispotive motions.

She said nothing else had been filed and put the file back in his office.

Should I file a MTD based on Rule 144 even though a letter has not been sent out it has been over a year. I figured when she said she snuck the file out right under his nose I awoke a sleeping giant. But a week later NADA

If it were my case I think I would consider just letting sleeping dogs lay. At least for a while.

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Here is another thought.. My second trial(the first they were stuck in traffic) was scheduled after the 10 months they have to prosecute a lawsuit. Should I just file a MTD based on this and the fact there has been no decision for over 365 days of the filing?? And if I do should it be with or without P?

Thanks shellie for the upload info. And Anon why would you wait? What is the benefit?

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Anon why would you wait? What is the benefit?

My thinking was that (if memory serves) you fought the case, there was no ruling (although I am not sure if technically you really had a TRIAL), the judge said to file briefs in 10 days (I believe on a new law and how it applies to your case or something) and that he would not rule until this happened.

You filed the brief. I would consider everything you could have done to have been completed at this point, and by the judges order: the next move is HIS. I don't think I would rock that boat.

Further; motions to dismiss are USUALLY done in the answering stage, and are rarely won late into the litigation. Not only that; but if your MTD is based on timing issues; then the longer you wait the stronger your argument.

Also, if your case has slipped thru the cracks; I would leave it there as long as possible. I hope this is not the case; but what if you draw attention to it and the judge finally makes the ruling, but it's not in your favor (and again I hope this does not happen), I am sure you are in no hurry to file an appeal or start making payments.

Your case is not really damaging you in it's current state, and you don't see the opposing lawyer poking at it either, but who knows?

You do have an odd case my friend.

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It is indeed ODD, and I have not seen much on filing Post Trial Motions. I think I will let it rest until it wakes. My husband said the judge seemed like he was waiting for me to say something to make a decision. Maybe it was to dismiss because it was after the 10 month law. Wish I had known about it then. The first trial they missed was with in that time frame. The pro tem asked if I wanted to wait and I said no . Also they barely made the 120 days to serve me. Finally got the court to agree they could mail it. So all in all maybe it will all work out.

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. I think I will let it rest until it wakes. My husband said the judge seemed like he was waiting for me to say something to make a decision. Maybe it was to dismiss because it was after the 10 month law. Wish I had known about it then.

Agreed. Hindsight is 20/20. Your husband may have been right, and it may have been good to do that at the time. But now that the time has past; I am not sure. You might be able bring it up when something does happen, or you might file now like you were saying.

This is a tough one, and it's very important. I think I would ask this question to a lawyer practicing in your area. With a little effort you probably could get an opinion for nothing.

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Could you tell me how to get a redacted motion on my thread. I have to type everything out as I do not know how. And I had someone else who PM's me have to do the same thing. I know it must be easy but I don't know how. Thanks

 

You can upload it as .pdf ...... .doc(x) ...... or .jpg (scanner file).

Just remember to upload in a format that most everyone can view (.jpg or .pdf); not every one has Office in order to view .doc(x) files

I haven't found a way to attach files to PM's.

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Hi, An update on my crazy case.  I was sued August, 2012. Thankfully found this forum and proceeded down the same path as most here. Went through all the steps properly and after pre-trial conference the court set a trial date for April.

 

The presiding judge had not been to court in all the trials I went to watch. There was a woman pro-tem. Really nice lady. So when I showed up for trial I was happy to see her.  However, the Plaintiff's never showed up. Said there was an accident and they would be there in 45 minutes. She said do you want to wait. I said No and she said I would be mailed the new court date.

 

The date was set for late June. 14 days before trial the Plaintiff filed a MSJ.  And 10 days before trial they filed a motion to continue trial. Since my home printer doesnt work I said goodbye to my husband and lived at the library a solid week, preparting my MOSJ and my MTOC.  The judge denied both of their motions and I went to trial that week.

 

Now it gets really good. So we show up at trial and check in with the clerk and she looks confused and says there has been a motion to dismiss.  I think, YAY. Then she said go to the courtroom.  So court was at 1. At 1:05 no one was there. Finally, at 1:15 the baliff? and the atty show up. She says the judge requests we try to work it out. At Trial???

 

So we go in the hall. He said do you want to settle. I said sure you dismiss with predjudice. He says no.

 

After the attys done 1 hour of going through the billing statements(MIL People),  the judge stops the trial and says he will not be ruling on it today. We need to make a memorandum of case law and submit it within one week.  Now we resume trial , and it was my turn , and he overruled everything I said.

 

I was flabberghasted to say the least.  So we left and I filed my Memorandum of case law. I bought the tape so I could get everything right. He never ruled on my case until  Wednesday. Over 90 days after trial.

 

And guess what not in my favor. And he signed on Friday and the clerk did not mail it until Monday , I got it Wednesday. So 5 days gone for my time to appeal.

 

So any advice would be welcomed. I think I cannot file a motion to vacate as I have already had trial.  I am thinking a Motion to reconsider , and an appeal.  The motion to reconsider would be based on two facts.

AZ Rules of Civil Procedure  Part XI Dismissal of Lawsuits.  Failure to conclude a lawsuit within 10 months.

And

Judges have 60 days to make

 

 a ruling after all information has been given , which was June 27,

 

Any help would be welcomed and I thank everyone in here that helped me along the way. I do not feel I lost , but was tagged teamed

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Do both. Get your appeal in. Should not be 5 days from decision, but 5 days from when you got it. And are those 5 calendar days, or court days? Whey should allow time for mailing. If they deny the appeal, then file the other, but I think getting your appeal in would be first priority. Make sure you include all the 10 month stuff as well as the 60 day ruling in your appeal brief.

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@hot in az

 

Before the 10 months was up, did the other party file a motion for a continuance or to extend the time for entry of a judgment?

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Yes, they filed a motion to continue 10 days before trial which was still after the ten months,  and that was to get a ruling on their MSJ.  The judge denied their continuance and their MSJ.  I did not know about the ten month rule at trial(sad for me)

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