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I have edited this post to include this introductory statement because there's a lot here and I feel it's important to read through this saga knowing ahead of time how it will end. You will see how much work and attention to detail I gave this case but it was not enough to come out on top. I lost in Justice Court when the Plaintiff filed a Motion for Summary Judgment (MSJ) and was unable to get the appellate court to reverse the lower court's ruling.  Here is the thread for my appeal:
http://www.creditinfocenter.com/community/topic/323330-arizona-lost-to-cavalry-on-msj-also-lost-on-appeal/

I have learned several things along the way. The most significant one is that in most cases, there is no "absolute" way a Justice Court judge has to rule on evidence. He can rule one way on admitting certain evidence and another judge can rule the exact opposite way. If both cases went to appeal, the appellate court can rule that neither judge committed error. To wit, winning in Arizona is mostly luck of the draw and as time marches on, good luck seems to be evermore diminishing . The reason for this is because appellate courts in AZ (and most other places) review the admission of evidence for an "abuse of discretion". This means they are not looking for a specific outcome with the admission of evidence (admitted or rejected), but instead are looking for something to indicate the judge had a basis for his decision. Furthermore, if there is nothing on the record that shows the judge had no basis for his ruling, the appellate courts usually won't assume facts that aren't there. This means the evidence itself must be lacking some fundamental element in order to have the appellate court reverse the Justice Court decision.

The next important thing I learned is that there is a case here in Arizona named Parker that appeals courts have been applying to JDB lawsuits. Parker says that a witness can testify about business records even if that witness did not create the records or has no knowledge of the person that created them or the manner in which they were created. The way this is being applied to JDB lawsuits is an employee of a JDB can testify about your credit card statements even though the JDB's employee has never seen the records before reviewing them in preparation of giving her testimony. The only criteria for giving this testimony is that the testimony must state 1.) the witness is a custodian of the JDBs records; 2.) the witness has reviewed the records being introduced (and specifically identifies them); 3.) the records were incorporated into the JDBs own records; and 4.) the JDB relied on the records in its normal course of business. If all 4 of those things are present in the witness testimony (or affidavit on MSJ), the Justice Court is free to admit the evidence and the appellate court won't reverse that decision on objections of hearsay or lack of foundation.  This doesn't mean the evidence admission cannot be reversed based on some fundamental defect with the evidence itself, however.  Examples of this would be a date that doesn't match up with other dates or dollar amounts among the records are discrepant with no rational explanation. It's YOUR job to raise these questions with the lower court.  If you don't address them with the lower court, the appellate court won't consider them on appeal.

The last important thing I learned is that JDBs are now entering into 'capped legal fee' agreements with their attorneys.  This means that the lawyer agrees to represent the JDB for a modest fee if the defendant does not contest the lawsuit (including defaults) and then a maximum amount the JDB will pay on contested lawsuits.  In my own case the cap was set at $1,500.  The lawyer submitted an affidavit that they spent over $11,000 in time, but stated that due to 'contractual arrangements' they could only charge $1,500 of that to Cavalry.  The significance of this is that a few years ago, if a defendant contested the lawsuit and started running up the JDB's legal tab, the JDB would be more inclined to drop the case and walk away.  Now, when they know they will spend no more than $1,500, once they reach that $1,500 limit (right around the 2-3 month mark of the lawsuit when discovery takes place), they have no incentive to back down.  It will cost the JDB the same to litigate the case all the way to trial and beyond (I appealed and Cavalry never paid more than $1,500) as it would to settle the case once the cap is reached.

The cautionary tale here is that JDBs (at least here in AZ) have figured out exactly what they need to do in order to keep a Justice Court decision in their favor from getting reversed.

My philosophy is to do whatever you can to keep the Arizona Court System from deciding your fate on a debt collection lawsuit. At this time, the most effective  way to do that is via arbitration.  There is an arbitration forum here on CIC. I suggest asking for advice there.  Also, here is an example of how arbitration was used in Arizona to beat a JDB:
http://www.creditinfocenter.com/community/topic/326349-retired-and-being-sued-by-unifund/

Here is a Justice Court Appeals Ruling discussing the use of arbitration in debt collection cases.
http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf

 

Update 12-21-2015: The CFPB smacked Midland and Portfolio Financial Services (PFS) pretty hard in a consent order earlier this year.  You can read the details here:

http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

The reason this is significant is some of the Justice Courts here have reconsidered how they are treating Midland and PFS when consumers contest the lawsuits they bring.  This is from a Justice Court case that was reversed on appeal:

Quote

Although Arizona follows the “adoptive business records doctrine” ... a key question is whether the records “have sufficient reliability to warrant their receipt in evidence.” ... Because of the CFPB Consent Order, Midland Funding is not entitled to any presumption of the reliability of its records.

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/102015/m7064645.pdf

There have been a couple reports of the Justice Courts taking it upon themselves to reject the evidence, even when the defendant doesn't raise the issues of the CFPB findings.  Of course, if you are sued by Midland or PFS, certainly address the CFPB findings when objecting to summary judgment or at trial when Midland/PFS tries to introduce their evidence.

Update 04-06-2016: It seems the Justice Court appellate court has had a change of heart:

Quote

This Court similarly retracts its statement:
Because of the CFPB Consent Order, Midland Funding is not entitled to any presumption of the reliability of its records.

http://courtminutes.maricopa.gov/docs/Lower%20Court/022016/m7204120.pdf

 

Ok, on to my story.

 

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I'm being sued by Cavalry on alleged CC debt that allegedly defaulted in Dec. 2008.
Through discovery I have received from them 3 statements from June 2008, November 2008 (credits were applied between the June 2008 and Nov 2008 statements) and June 2009. They also provided the attached Rule 26 Initial Disclosure.

[deleted]

That is all the documentation I have from them. There is no written contract provided. They have admitted in my request for admissions that they do not intend to call any witness from the OC. They have provided no affidavit or other certification from the OC that the statements are genuine. With no written contract, are they going to try arguing "implied contract" because I allegedly made payments on the account?

At the time the account allegedly defaulted, the AZ court of appeals recognized in two separate cases a 3-year SOL on credit card debts. The law has since been amended to 6 years on credit card debts.

So... Should I file a MtD, MSJ or just wait for trial and challenge their evidence? I'm not great at thinking on my feet so I really want to get this dismissed before trial.

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Well the law changed in April of 2011 so they are within the sol if you made a payment after April of 2008. Until discovery is complete, you would not win on a motion to dismiss or an MSJ , if it is complete, then I would say go for it.

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Well the law changed in April of 2011 so they are within the sol if you made a payment after April of 2008. Until discovery is complete, you would not win on a motion to dismiss or an MSJ , if it is complete, then I would say go for it.

The SOL clock begins to run at the cause of action, in this case, the alleged default.  According to their paperwork, this was Nov 2008.  A.R.S. §12-505(A) prohibits a statute of limitation being enlarged by changes in law so even if a default happens the day before a law changes, the law in effect at the time of the default prevails.

 

My discovery requests to them is complete. In order to get them to me with enough time for me to respond within the time required, they only have 5 days left to serve me with discovery requests.  It doesn't look like that's going to happen, so....

 

Assuming they aren't going to serve me with discovery requests in the next 5 days,  MtD or MSJ?  Is there a way to do both in one motion, like "in the alternate" type of thing?

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bank of America laws of Delaware apply

WHAT LAW APPLIES

This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of

the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws.

3 year sol

http://www.consumerfinance.gov/credit-cards/agreements/search/?q=bank+of+America

http://www.creditinfocenter.com/community/topic/321131-being-sued-in-phoeniz-az-by-midland-kaplan/

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I would suggest the Motion for Summary Judgment. In your memorandum of points and authorities I would itemize these major points especially the SOL ruling. Bring pressure to bear on all these points - standing, chain of title, no evidence, failure to provide discoverable facts and back each point up with good case-law. With your discovery complete and the Plaintiff not providing much or any real evidence it should be clear to the Judge that Plaintiff was going for a quick default judgment. Your fighting back and points in contention only confirm the JDB has nothing and more then likely will dismiss anyway. (As BeerGoggles used to say regards settlements- "You can dismiss and we'll both have a nice day)" The JDB is wasting the Courts time and most likely will dismiss anyway. Going to Court is way to expensive for them. Responding to your MSJ is time consuming and costs money. Let the Judge rule on your pleadings not theirs. Just make sure you appear for all the Court requirements. 

 

Take their temperature with a MSJ and force a dismissal. It make's it easy for them to drop out where a MTD requires a yes/no decision and the knee jerk reaction usually get's you a no or a denial.

 

Do a search for Beergoggle's postings fighting similar battles on two or three lawsuits in Arizona which he won. He put up with all kinds of shady maneuvers and challenges but still prevailed. You will to.

 

HP 

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bank of America laws of Delaware apply

WHAT LAW APPLIES

This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of

the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws.

3 year sol

http://www.consumerfinance.gov/credit-cards/agreements/search/?q=bank+of+America

http://www.creditinfocenter.com/community/topic/321131-being-sued-in-phoeniz-az-by-midland-kaplan/

 

I have a copy of a BofA agreement from 2003 and it says Arizona laws apply.  The account was allegedly opened on 2006 and allegedly defaulted in 2008.  I don't have any agreements from that window in time, but it seems the choice of law was not always Delaware.

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Arizona's disclosure rules are unique in the nation. Which is unfortunate, because in passing them we'd hoped that we'd started a trend, but that was not to be. I digress. What makes them unique is the very strict, unbending obligation they impose on BOTH sides to automatically turn over ALL documentation they either know about or intend to use at trial, without being asked to turn it over.

ARCP 26.1(a)(9): [Within the times set forth... each party shall disclose in writing to every other party]: (9) A list of the documents or electronically stored information, or in the case of voluminous documentary information or electronically stored information, a list of the categories of documents or electronically stored information, known by a party to exist whether or not in the party's possession, custody or control and which that party believes may be relevant to the subject matter of the action, and those which appear reasonably calculated to lead to the discovery of admissible evidence, and the date(s) upon which those documents or electronically stored information will be made, or have been made, available for inspection, copying, testing or sampling. Unless good cause is stated for not doing so, a copy of the documents and electronically stored information listed shall be served with the disclosure. If production is not made, the name and address of the custodian of the documents and electronically stored information shall be indicated. A party who produces documents for inspection shall produce them as they are kept in the usual course of business."

Similar clauses exist regarding: facts, witnesses, legal theories, and damages calculations. Within 30 days of learning of the existence of any such things, WHETHER THEY HELP OR HURT YOUR CASE, they must be disclosed. If they are not disclosed, the sanctions can be serious, up to and including dismissal. Note: in Justice Court, you are no longer governed by the ARCP. Instead, the courts have taken the ARCP and tried to emulate the same principles in easier to read language found in what's now known as the JCRCP (Justice Court Rules of Civil Procedure), effective 1/1/13. Link: https://www.azcourts.gov/Portals/20/2012Rules/R120006.pdf

I'm explaining all this because I think you should do two things: (1) make sure your ducks are in order, do an honest search of your records and turn over everything you have and everything you know about this account, because that's the law, and (2) wait for the discovery period to end before filing any motions. If all they do is stand on their current disclosure statement, it doesn't look to me like they've gotten enough admissible evidence and witnesses in to go to trial in compliance with Rule 26.1. They've only disclosed one set of witnesses: "litigation specialists for (the JDB)." These people will not and cannot have personal knowledge about the account with the OC.

As for the other vague descriptions of unnamed generic witnesses they list, you tell me whether these descriptions comply with the JCRCP requirements, under Rule 121:

------

Disclosure of information. Within forty (40) days after the defendant has filed an answer, or at a time set by the court, each party must provide to the other parties a written disclosure statement. Every party's disclosure statement must include the following information:

(1) A list of trial witnesses. This list must include the names, addresses, and telephone numbers of the witnesses the party will call if the lawsuit goes to trial, and a brief description of what the party expects the witness will say. “Witness” is defined in Rule 137(a) as “a person, including a party, who provides sworn testimony during a lawsuit.” If a witness is going to offer expert testimony, the list must include the expert's qualifications, and a summary of the opinions of the expert.

(2) A list of other people with knowledge. This list must include the names, addresses, and telephone numbers of persons who will not be called as trial witnesses, but who have information that may be favorable or unfavorable concerning the event or transaction that is the subject of the lawsuit.

---

Once discovery closes, you file YOUR MSJ if you've studied this forum well enough and to know how to do so. The basis of your MSJ would be the lack of admissible evidence and witnesses to support their claims.

If they file an MSJ against you before discovery closes (they can do so whenever they want), then your hand is forced, and you simply challenge their motion according to the advice everyone here provides, along the same lines.

I would also suggest a single, simple letter to opposing counsel. The letter should state in essence, "I am in receipt of your Rule 26.1 initial disclosure statement and note that you have made reference to various unnamed, generic categories of witnesses without providing their names or contact information. This is not acceptable. Please supplement your disclosure with the appropriate information or I will assume you have no such information and will move for an order prohibiting you from calling these witnesses at trial."

If you want to be snarky and show off a bit, you can add:

"Incidentally, please note that although you have styled this as a Rule 26.1 disclosure statement, it is in fact the Justice Court Rules of Civil Procedure that apply to this action, not the Arizona Rules of Civil Procedure. Your disclosure should be submitted through JCRCP 121, not ARCP 26.1."

This is a lot of information so I must be extra clear: I'm not your lawyer. I haven't read your entire file so I am only giving my thoughts in a general manner to the scenario you've described for the benefit of everyone reading this forum, and it is not legal advice. For specific legal advice you must properly retain a lawyer.

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Thanks for the info, UCL.  Very good stuff here!

 

I checked my mail today and they sent me a 3rd supp. disclosure statement that has a full 45 page credit card agreement dated 2006.  It has the Delaware choice of law provision so I'm happy about that.  They also sent a 15 page computer printout of what they claim is an electronic credit card application that has personal info and also what appears to be a copy of a credit report.

 

They haven't sent me a single affidavit.  What's to stop them from "receiving" the affidavits the week before trial and then using the "we didn't know about it until it showed up" excuse?

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Here's the beauty of Arizona's disclosure scheme, which for us in the legal profession is why the rest of the country is crazy not to adopt it. Check out JCRCP 121(B) and ( c) (emphasis mine):

b. Disclosure of new information. If a party discovers new or different witnesses, documents, or other information that will be used at trial, the party has a duty to promptly provide to the other parties: (1) a statement containing the additional information or witness information, or (2) copies of the new documents. The duty to make the disclosures required by this rule is a duty that continues until the lawsuit is over.

c. Penalties for failure to disclose. Disclosures by a party must include enough information that a witness who is called or an exhibit that is presented at trial will not surprise the other parties. The court may penalize any party who fails to disclose or who fails to timely disclose witnesses, exhibits, or information, or who discloses inaccurate information. Penalties that the judge may impose are provided in Rule 127(d).

------

Applying Rule 121, a defendant has a duty to disclose any witness "promptly" after learning about that witness. Any Arizona litigator might tell you that he's had great success in occasional cases of viciously attacking an opponent who sat on an undisclosed witness and then disclosed him at the last second in an effort to go to trial. In a recent appellate decision, the Arizona Court of Appeals sanctioned a litigant with the fatal penalty of dismissal because he had failed to disclose a negative fact in his own medical history until very late in the game.

This lawsuit is brought by plaintiff so the strict burden of preparing the case and proving it in compliance with Arizona's very demanding disclosure standards is on plaintiff. As a defendant, you should carefully monitor every document and witness these folks disclose to you, do your homework, and as I've said also make sure your own disclosure nose is clean so that when the battle erupts, you're the one wearing the white cowboy hat and they're the non-compliant bad guys.

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If this debt is in fact mine, it is from so long ago that I no longer have any documents related to it.  I've disclosed and provided what I have.  These guys, on the other hand.  Wow.  They have already claimed to have not received my first set of discovery requests and claim to have sent a supplemental disclosure statement that I never received.  I know people here have had it much worse, but it's really pathetic that these types give the profession in general a bad rap.

 

Anyway, thanks for your input.  I appreciate it.

 

I've started a draft of my motion.  I know you suggested to prepare it as a MSJ,but what relief am I asking for?  If it's just a dismissal, why not a MtD?  I'd also like some more case law to cite where noted, or anywhere else it would help.

 

 

 

 

INTRODUCTORY STATEMENT
On our about February 13, 2013, the Plaintiff filed the instant action against Defendant, Harry Seaward, for an alleged breach of contract.  Plaintiff's complaint claims the Defendant made application to Bank of America/FIA Card Services, N.A. (“original creditor”) for a “revolving Credit Account” (“Account”), that this Account “was subsequently sold and/or assigned by the original creditor to the Plaintiff” and that Defendant has “defaulted in payment of the indebtedness owed to Plaintiff under the Agreement”.  See Plaintiff's Complaint.  Plaintiff claims Defendant owes it a principal sum of $3,XXX.XX and interest in the amount of $2,XXX.XX.
The Defendant was served with Plaintiff's Summons and Complaint at his home on or about February 17, 2013.  On March 8, 2013 and March 22, 2013 respectively, Defendant filed a timely Answer and an Amended Answer in which he denies all of the Plaintiff's material allegations and, relevant to this Motion, he asserted Lack of Standing and Statute of Limitations affirmative defenses.

MEMORANDUM OF POINTS AND AUTHORITIES

Alleged Breach of Contract
    Plaintiff Cavalry SPV I, LLC brought this action against the Defendant for an alleged breach of contract.  To prevail on breach of contract claims, a Plaintiff bears the burden to prove a contract between the parties existed. (caselaw?)  The Plaintiff's complaint claims the Defendant entered into a contract with the original creditor and claims the account was “sold and/or assigned” to the Plaintiff.
    The Plaintiff in this case has failed the most fundamental test of its claims.  Plaintiff has failed to produce a contract binding the Defendant by name to itself or even to the original creditor.(caselaw?)

    Furthermore, any document or set of documents the Plaintiff has provided are heresy at best and are not accompanied by any sort of certification or affidavit authenticating their source and validity. (caselaw?)

    Without a contract, there can be no breach of contract and Plaintiff's claims of a breached contract must be dismissed.  (caselaw?)

 

 

Affirmative Defense - Statute of Limitation
    Plaintiff claims the Defendant opened a credit card account with Bank of America/FIA Card Services, N.A., caused charges to be made to said credit card account and subsequently defaulted on the obligation to repay the charges made.  Plaintiff's complaint clearly alleges the account was opened “on or about 12/27/2006”.  Plaintiff's complaint and subsequent pleadings are silent, however, when it comes to alleging when the account defaulted.
    Defendant continues to deny owing a debt to the Plaintiff, or the original creditor, but asserts that any debt that may have ever existed would have defaulted with the original creditor on a date no later than November of 2008.
    Regardless, it is the Plaintiff's obligation to prove all elements of it's claims, including that a default occurred and when.  (caselaw?)

    On July 26, 2013 Plaintiff served on Defendant a “Third Supplemental Disclosure Statement” in which Plaintiff provided Defendant a document titled “CREDIT CARD AGREEMENT”, hereafter “Agreement”1.  Prior to this date, no other evidence of a contract has been presented to the Defendant, and none other has been provided since, so it is assumed Plaintiff will claim this Agreement is the contract between the original creditor and the Defendant.  The middle of page 40 of this Agreement shows a paragraph titled “WHAT LAW APPLIES”, and states that the Agreement “is governed by the laws of the State of Delaware”.  See Exhibit A.
    With regard to actions on debts owed, Delaware Code Title 10 Chapter 81 Section 8106 states in pertinent part:
“no action to recover a debt not evidenced by a record or by an instrument under seal [and] no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations ... shall be brought after the expiration of 3 years from the accruing of the cause of such action”

An open account has been defined by this court:
“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).

The debt Plaintiff claims is owed is allegedly the result of a credit card account.  This type of account is exactly the “open account” described by Connor.  Charges and credits are continuously applied to the account over an unspecified period of time, and the account is “kept unclosed with the expectation of further transactions.”
The statute of limitation begins to run on an open account from the date of the last item. See Krumtum v. Burton, 532 P. 2d 510 (Ariz: Supreme Court 1975).  The “last item” is defined by Krumtum as the last time credit was extended to the debtor.  If there is in fact a debt owed here, the Defendant avers the “last item” in this case could not have occurred later than November 2008.  The Statute of Limitations in accordance with the Delaware Code, the applicable law per the Agreement, expired in November 2011, and the Plaintiff's claims must be dismissed for failure to prosecute within the time allowed.

 

 

Affirmative Defense – Lack of Standing
    Rule 104 of the The Justice Court Rules of Civil Procedure require that “each plaintiff must be someone who claims to have been damaged or whose rights are in dispute.”  In this case, the Plaintiff claims a debt that was owed to Bank of America/FIA Card Services, N.A. became collectible by the Plaintiff by way of sale and/or transfer.  The only documentation submitted to support this claim is a boilerplate “BILL OF SALE AND ASSIGNMENT OF LOANS” (“Assignment”) which fails to identify the Defendant or the specific debt Plaintiff claims is owed.  (caselaw?)

    Furthermore, this Assignment is heresy and not accompanied by an affidavit to substantiate it.  (caselaw?)

    Having been presented no other evidence that demonstrates  the Plaintiff is a “real party in interest”, Defendant asserts the Plaintiff lacks standing to sue on this matter, and its claims against the Plaintiff must be dismissed.

CONCLUSION
    Having established Plaintiff has presented no evidence to substantiate it's claims, the Plaintiff's claims must therefore be dismissed with prejudice.

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An MTD requires the court to assume all facts alleged by a plaintiff to be true, and disallows any references to exhibits.

You also have to be careful with your timing of an MSJ if you choose to file one. If it's too early, plaintiff can simply remedy what you point out is missing or deficient in its evidence with new disclosures. And remember that it can't be filed too late either. JCRCP 129.

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What other dates has the court set? Is discovery still permitted or has a discovery deadline expired?

You will have to prepare for trial and you have a solid 2+ months to prepare for it using the expert skills of the pros on this forum. :)

There are other motions to file in the meantime, like motions to exclude due to disclosure violations, and motions in limine.

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The SOL clock begins to run at the cause of action, in this case, the alleged default.  According to their paperwork, this was Nov 2008.  A.R.S. §12-505(A) prohibits a statute of limitation being enlarged by changes in law so even if a default happens the day before a law changes, the law in effect at the time of the default prevails.

 

My discovery requests to them is complete. In order to get them to me with enough time for me to respond within the time required, they only have 5 days left to serve me with discovery requests.  It doesn't look like that's going to happen, so....

 

Assuming they aren't going to serve me with discovery requests in the next 5 days,  MtD or MSJ?  Is there a way to do both in one motion, like "in the alternate" type of thing?

MSJ is different and courts will not let you combine motions even in the alternative on sj because it is dispositive. Sorry to say no dice on sj/mtd

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What other dates has the court set? Is discovery still permitted or has a discovery deadline expired?

You will have to prepare for trial and you have a solid 2+ months to prepare for it using the expert skills of the pros on this forum. :-)

There are other motions to file in the meantime, like motions to exclude due to disclosure violations, and motions in limine.

 

I have another 6 weeks or so before before the discovery deadline.

 

I don't think I lost much by missing the MSJ deadline.  I have a solid SOL defense and they will probably screw something up with their affidavits.

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I agree with you and you're right not to worry. You can still file motions in limine, but try not to do so in a way that will telegraph their weak spots with enough time to correct them. In other words, you may want to wait until discovery closes. I see no benefit to doing it early.

Prepare for trial. Draft your motions formally objecting to their hearsay affidavits ahead of time. You are allowed to submit such written motions alongside your verbal objections at trial. Doing so is a great way to create your record, in case you lose and want the appellate courts to overturn the verdict (exactly what Jankowski did). Note that any objections you verbally make may not be preserved for the record at all, unless you've arranged for a court reporter, or ensured that the trial is being recorded digitally. (Even if it's recorded digitally, there is no guarantee that something you verbally state will actually be captured.)

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I was served with a MSJ from Cavalry dated July 31, 2013.  JCRCP 129 says:
 

A party may file a motion for summary judgment no sooner than the date that the answer is filed or is due, and no later than ninety (90) days before the date set for trial.

These guys are about 3 weeks to late with the MSJ.

Here is their MSJ and Statement of Facts with affidavit:

 

Plaintiff's MSJ_Redacted.pdf

Plaintiff's SOF ISO MSJ_Redacted.pdf

 

 
Right now I have 33 days (I get 5 extra days due to them mailing it to me) to respond to their MSJ.  Here are the issues I plan to raise in response:
 
1. The fact that they filed their MSJ well past the deadline.
2. The fact their affiant has no personal knowledge of the alleged account when it was allegedly created or allegedly defaulted. (Should I simultaneously file a motion to strike their "evidence"?)
3. The fact that the agreement they provided cites a choice of law provision for the State of Delaware, and the SOL for Delaware is 3 years.

 

Anything else?

 

Since I don't have any documents to prove a negative, etc, can I create an affidavit stating things like "I deny owing a debt to the Plaintiff."?

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Here's a few citations to help get you started.  I highlighted some interesting phrases.

 

Summary judgment should not be granted where there is a genuine disputed issue of material fact or even the slightest doubt as to the facts. Granite State Insurance Corp. v. Mountain States Telephone & Telegraph Co., 117 Ariz. 432, 573 P.2d 506 (App. 1977).

 

 

Our Supreme Court has repeatedly held that a motion for summary judgment should not be granted where there are any contested issues of fact, and that a motion for summary judgment is not to resolve disputed issues but to determine whether there are, in fact, any such issues remaining to be litigated. Peterson v. Valley National Bank, 90 Ariz. 361, 368 P.2d 317 (1962); Elson Development Co. v. Arizona Savings & Loan Association, 99 Ariz. 217, 407 P.2d 930 (1965); Elerick v. Rocklin, 102 Ariz. 78, 425 P.2d 103 (1967).

 

 

Rule 56(e), Arizona Rules of Civil Procedure, provides that affidavits submitted in support of a motion for summary judgment must be based on personal knowledge, setting forth facts which would be admissible in evidence and establishing the affiant's competence to testify to those facts. See Portonova v. Wilkinson, 128 Ariz. 501, 627 P.2d 232 (1981).

 

In Transamerica Ins. Co. v. Trout, the court stated the following:

"Rule 803(6) provides that the admission of business records or reports is not barred by the hearsay rule if the records are made by a person with first hand knowledge acquired in the course of a regularly conducted business activity, kept entirely in the course of that business activity, pursuant to a regular practice of that business activity, and introduced through a custodian.

The fact that St. John kept the reports among his own business records does not make the documents "business records" within the contemplation of the rule. See, e.g., Markiewicz v. Salt River Valley Water Users' a$$'n., 118 Ariz. 329, 576 P.2d 517 (App. 1978). They must have been prepared and retained as a part of the normal course of business of the party preparing them. These reports were prepared by independent appraisers with no relation whatever to St. John's business.

Furthermore, the records must be introduced through the testimony of a custodian who can be cross-examined concerning the methods of preparation, the qualifications of the preparer, and other relevant matters."  Transamerican Ins. Co. v. Trout, 145 Ariz. 355, 360, 701 P.2d 851, 856 (App. 1985).


To show the affidavit was made on personal knowledge, the affiant must review the documents and show familiarity with the manner in which they were prepared. See Villas at Hidden Lakes Condo. a$$'n v. Geupel Constr. Co., 174 Ariz. 72, 82, 847 P.2d 117, 127 (App. 1992) (finding that an association failed to establish a prima facie case entitling it to summary judgment because its supporting affidavit did not provide foundation for the affiant's personal knowledge and conclusion, nor did it demonstrate his familiarity with the person who prepared the affidavit exhibits or the manner in which they were prepared).

 

Notice that the last citation points out that the affiant wasn't familiar with the person who prepared the exhibits (evidence) or how they were prepared.

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@BV80, you are DA BOMB!

 

I'm pretty sure the SOL is a slam dunk, if not in JC, for sure on appeal, but I had no idea where to start on their BS affidavit.

 

Thank you SOOO much.

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1. Immediate Motion to strike MSJ (expedited relief requested): on grounds that the MSJ is untimely.

2. If no expedited ruling is received, proceed with your response in opposition in a timely manner.

Within the response, move to strike those exhibits that can be properly challenged (and don't challenge exhibits that clearly cannot be; this is a matter of maintaining your credibility in the judge's eyes). Arizona's rules of evidence are not unique. They're patterned after the federal rules, like most states.

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I don't think the Trout quote above fully states the rule.

"To fall within the business records exception, [r]ule 803(6) requires either the custodian of records or other qualified witness to testify that the record was made 1) contemporaneously, or nearly so, with the underlying event; 2) by, or from information transmitted by, a person with first-hand knowledge acquired in the course of a regularly conducted business activity; 3) completely in the course of that activity; and 4) as a regular practice for that activity."

State v. McCurdy, 216 Ariz. 567, 572-73, 169 P.3d 931, 935-36 (Ct. App. 2007) (quoted in Jankowski, which you unfortunately can't cite, but you should read 10 times and then track its logic to a tee.)

You have here an affidavit from a Paul Saland. The Jankowski court rejected the argument that his counterpart in that case was not a "qualified witness," although that doesnt mean you can't try anyway. (You have not been given the opportunity to depose or cross-examine Saland to determine whether he, as is common in the JDB industry, robo-signed his affidavit.) But where the court held in the debtor's favor, with logic that applies with equal force to your Saland affidavit, is in the 4 factors listed by McCurdy. Jankowski's logic that held its affidavit also holds true for the Saland affidavit, rendering its 4 exhibits (A, B, C, and D) inadmissible hearsay.

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Chiming in from Az.  They filed a suit on me one month before I was out of the 3 yr sol.  The new law went into effect 7/20/2011. My last pmt was 8/6/08  Your last payment was according to you 11/08.  To be grandfathered from SOL you had to have been out 3 years BEFORE the new law went into effect... Go to members and check out Christine.  Her cased was based on SOL  or go to my thread and read her posts on SOL.

 

If you PM me I will send you my MOSJ. They also sent me one 2 weeks before trial.  But we need to also include defenses to your affirmative actions in your answer. Sorry to burst your bubble on SOL but that is probably why they filed MSJ.

Also you did file a disclosure form with the court right??   Just checking

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