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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

 

Couple things here.  I'm not a lawyer and I'm just following layman's logic, but I don't think your interpretation of the AZ SOL is correct.  The SOL clock begins when the cause of action arises.  In a credit card case ("open account"), this is when the last item of credit is extended.

 

 

Krumtum v. Burton, 532 P. 2d 510 (Ariz: Supreme Court 1975)

 

The complaint of plaintiff had attached thereto invoices, and based upon these invoices it is clear that with the exception of the storage charges, a separate claim, all accounts were incurred prior to 20 December 1965. This is admitted by the appellant in his brief which, for example, states:

    "The last labor or material furnished other than storage charge was November 18, 1965."

An open account has been defined by this court:

    "Generally speaking, an open account is one where there are running or concurrect (sic) 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).

451*451 It is apparent that the services furnished by the plaintiff to the partnership were furnished on an open account as defined by this court. Connor Livestock Co. v. Fisher, supra. The statute of limitations begins to run on an open account from the date of the last item, in the instant case 18 November 1965. Therefore the last item charged on the open account was more than three years before the action was commenced and the statute of limitations having been pled is a bar to the suit.

 

 

 

(It's a pretty old case and maybe there is something more current, but this is all I could find.)

 

 

§ A.R.S. 12-505(A) prohibits ex post facto SOL changes resulting in longer SOL.

 

An action barred by pre-existing law is not revived by amendment of such law enlarging the time in which such action may be commenced.

 

 

BUT...  none of that matters for the moment.

 

The agreement THEY provided and that THEY claim governs the alleged debt has a choice of law provision for the State of Delaware.  All debts in Delaware have a 3-year SOL.  In their MSJ they claim the SOL beings at charge-off and they claim this happened in June 2009.  Even if they are right about the SOL clock starting at charge-off, their right to sue under Delaware law expired in June 2012.  The same also holds true for AZ if my logic is correct, but I'm not arguing that until a judge says Delaware law doesn't apply to the SOL.

 

 

 

I filed a notice that I served them with Rule 121 Disclosure.  I'm not sure if that's what you're talking about.

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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.

 

Here is my Motion to Strike.

Let me know what, if anything I need to change.

 

Motion to Strike MSJ_Redacted.pdf

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Yes Disclosure form on pleading paper Rule 26.1 ARCP.

 

If you google when is a SOL grandfathered in Arizona and go to the second one. Read Christine's thread #34 and also #43.

Then go down to the 3rd one  and read this post from Az on crediinfocenter on Sol.   Good Luck.  I wished I could have  used it too believe me.

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Yes Disclosure form on pleading paper Rule 26.1 ARCP.

 

If you google when is a SOL grandfathered in Arizona and go to the second one. Read Christine's thread #34 and also #43.

Then go down to the 3rd one  and read this post from Az on crediinfocenter on Sol.   Good Luck.  I wished I could have  used it too believe me.

Can you post a link the the thread you'd like me to read?  I found this one, not sure if it's what you meant:

http://www.creditinfocenter.com/community/topic/307298-az-sol-for-cr-cards-will-be-six-years-governor-signed-the-bill-hb-2412/

In post # 61 She says she got a dismissal from Midland based on a 3-year SOL and the minute entries of the case against her by Cap1 discuss an insufficient affidavit as the cause for reversal.  SOL was not addressed so the matter of debts created prior to the 2011 law is still an open issue in AZ courts.

 

I also found this:

http://www.creditinfocenter.com/community/topic/312783-aw-just-served-today-in-az-by-am-systems-llc/

 

It doesn't say exactly why, but the case was dismissed.  @lost_inaz planned to argue a 3-year SOL defense, so it's reasonable to conclude that was the reason.

 

 

I'm sorry, but I just don't see any cases yet agreeing with your position that the 2011 AZ law is retroactive on debts incurred prior to this law taking effect.

 

 

 

One interesting side note in support of your position.  I talked to an AZ NACA lawyer about my case.  I explained the dates and that, because the debt was allegedly created well before the 2011 law took effect, I was confidant it would be ruled under the 3-year SOL established by Walrod and Thompson.  He said he believed I was mistaken in the application of the SOL but gave no explanation.  I hadn't paid him to take my case, so maybe this is why he didn't bother explaining, but I thought I'd mention it in case anyone happens to know the answer.  Maybe  @ULC or @BV80 can chime in.

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@Harry Seaward

 

In my opinion, the Walrod case won't help you.  First, it's a Maricopa County case.  Unless you're in that county, it's not binding on your court.  Then you have the fact that it's a lower court case.  I'm not sure how persuasive that would be.

Second, the court quoted the following case:

"The appellate court in Cheatam v. Sahuaro Collection Service, Inc. held that “[a] cause of action accrues whenever one person may sue another."

Your contention is that the 3 year SOL is past after the last item that was charged on your card.  If the SOL is based upon the date of the last item charged, a person could stop using his card, but still make payments for 3 years.  After 3 years, the person could stop making payments, but the cc company would not be able sue because, based upon the last item charged, the account would be outside the SOL.

That doesn't make sense.  If you're making payments, the cc company is not going to sue because they don't have a cause of action.  You haven't done anything to cause them to sue you.

A cause of action means that an injury has occurred.  The injury doesn't occur because you're no longer charging items to the account.  Ceasing to charge items to the account does not cause an account to go into default.  The injury (default) occurs either when you stop paying or when you stop paying the minimum amount required to keep the account current. 

 

If your account did not go into default until after the 6-year SOL was confirmed, then that is the SOL that applies to your account.

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General Rule: Only published decisions by the Arizona Court of Appeals and Arizona Supreme Court are ever binding on Arizona courts. A decision by any other court is at best persuasive, if that. Unpublished decisions by appellate courts cannot be cited as precedent.

All that said, I completely agree with BV80. The SOL accrues on the date of the default.

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Christine's last payment was three years before the date of 7/20/2011, so the court ruled hers grandfathered. I have not seen one AZ case where Sol was won and a payment was made on the account after 7/20/2011.  I don't know how to post a link sorry.

Also if they are claiming breach of contract then it is account stated , not an open acct I believe.

Beergoggles would probably know. He's been through this twice.

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@Harry Seaward In my opinion, the Walrod case won't help you. First, it's a Maricopa County case. Unless you're in that county, it's not binding on your court. Then you have the fact that it's a lower court case. I'm not sure how persuasive that would be.Second, the court quoted the following case:"The appellate court in Cheatam v. Sahuaro Collection Service, Inc. held that “[a] cause of action accrues whenever one person may sue another."Your contention is that the 3 year SOL is past after the last item that was charged on your card. If the SOL is based upon the date of the last item charged, a person could stop using his card, but still make payments for 3 years. After 3 years, the person could stop making payments, but the cc company would not be able sue because, based upon the last item charged, the account would be outside the SOL.That doesn't make sense. If you're making payments, the cc company is not going to sue because they don't have a cause of action. You haven't done anything to cause them to sue you.A cause of action means that an injury has occurred. The injury doesn't occur because you're no longer charging items to the account. Ceasing to charge items to the account does not cause an account to go into default. The injury (default) occurs either when you stop paying or when you stop paying the minimum amount required to keep the account current. If your account did not go into default until after the 6-year SOL was confirmed, then that is the SOL that applies to your account.

I think I confused things more than necessary.

First, I am in Maricopa county. I'm in crappy justice court at that. With the exception of small claims, it's the lowest court in the system here.

Second, I used the " last item" phrase because that's how it was in the case I cited, but by their own claims, the account charged off in 2009, 2 years before the new law took effect. I say SOL starts at default as you said. They say it's at charge-off, but either way it's well before the change of statute in 2011.

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From what I know the charge off date does not matter at all.  The last payment made is the default and some states wait 2 months after that to claim a default on the account.  If I were you I would read our states rule on Sol.

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From what I know the charge off date does not matter at all.  The last payment made is the default and some states wait 2 months after that to claim a default on the account.  If I were you I would read our states rule on Sol.

It would actually be when the account became delinquent (i.e. the first missed payment) and was never brought current again.

 

What I'm trying to get across, though, is that it doesn't matter if the cause of action arises at default, or charge-off, or 2 months or 6 months after.  The Plaintiff in my case has claimed it happened on a date WELL BEFORE the law was changed. Two years before, in fact.

 

I've gone back and tried to find anything anywhere that is significant and not arbitrary about the 3-year period before the law changed.  I can't find anything saying that, to be covered under the old law, the cause of action HAS to be 3+ years before the law changed.  A.R.S. §12-505(A) does not provide for such a time period, and this seems the most likely place to find it if it did exist.  I think it just so happened to be 3 years in the Midland case and you have misunderstood that to mean it must be 3 years in all cases.

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If it were me I would PM Christine or ASTmedic and have them explain it . Are you working on your MOSJ?

What are we looking to figure out here. Are we talking about the SOL start date?

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@ASTMedic if a debt is created (default, charge-off, whatever) prior to the new az SOL law taking effect, is that debt automatically coveted by the old law, or is there some period of time that has to exist between the debt and the passage of the new law?

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I have zero knowledge on AZ law so I can't really say. I can't see why a passage of time would be needed though. You would think either the law at the time of the opening of the debt applies or the law on the books at the time of the trial. I'd lean toward the current laws applying but that's not based on any evidence.

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Someone posted here recently about a case where the 3 year rule took effect.  I can seem to find it, though.  

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@admin do you have any recollection what that 3 years was based on? Like, why 3 years and not 2 or 4 years? It seems very arbitrary.

edit: ... and 3 years on top of the second 3 years effectively makes it a 6-year SOL so it's a moot discussion at that point since the SOL is 6 years now anyway.

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In Az the date of Sol applies to the last payment mad on the acct. Check out Corrina22  posts. Also  arizona recognizes classification of a cc as open account.

Check out Arizona 13-2101 for definitions of Sol.The burden of proof to prove Sol is on you not them. So you had better be sure before you file anything based on that.

Google arizona credit rules on sol

Google When does the clock start ticking on Sol in Az   Go down to the 6th one called Change in the SOL in AZ.  Go to post #11

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Yes I read this too awhile back. Lets just work with getting your Motion to oppose sum judge dealt with. Did you post their MSJ??  Just because you can't use SOl does not mean you cannot prevail. So we just move forward.

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Yes I read this too awhile back. Lets just work with getting your Motion to oppose sum judge dealt with. Did you post their MSJ??  Just because you can't use SOl does not mean you cannot prevail. So we just move forward.

I can use SOL.  I'm using the Delaware choice of law from the agreement which has a 3-year SOL.  The whole AZ SOL tangent was ... a tangent that, as I said a few times a while back, has no real bearing on my case, at least for the moment until the judge decides AZ law governs despite what the agreement says.

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@Harry Seaward

 

The following AZ Supreme Court case offers an explanation as to how AZ applies the SOL in a choice of law claim.  Since AZ doesn't have a borrowing statute, your courts apply the "most significant relationship test".  "Statute of limitations" and "choice of law" have been highlighted.

 

http://scholar.google.com/scholar_case?case=1923609848225175824&q=%22choice+of+law%22++AND+%22statute+of+limitations%22&hl=en&as_sdt=4,3

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@BV80 Interesting! Thanks for that. I noticed something. As near as I can tell, this case and all those cited by it are non-contract tort claims.

If there is a contract between the parties and a written agreement (drafted by the plaintiff, no less) says a different state's laws govern the contract, why would the court over ride that agreement?

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@Harry Seaward

 

@BV80 Interesting! Thanks for that. I noticed something. As near as I can tell, this case and all those cited by it are non-contract tort claims.

If there is a contract between the parties and a written agreement (drafted by the plaintiff, no less) says a different state's laws govern the contract, why would the court over ride that agreement?

 

I think part of it has to do with procedural vs. substantive issues.   The way I understand it is that procedural law is governed by the laws of the forum state and procedures of the court.  If the SOL is considered to be a procedural issue, then the forum state's SOL would apply. 

 

States that don't have a borrowing statute usually refer to the Restatement of Conflict of Laws.  It says that the laws of the forum state will apply UNLESS another state has a more significant relationship to the parties and the cause of action.

 

In order for the court to apply the SOL of DE, you might have to prove that the cause of action (default) occurred in DE.   You would argue that the default occurred in DE because the OC resides in DE, and that where the OC would have received payment.

 

The other party will argue that default occurred in AZ because you reside in AZ and failed to make payments from AZ.

 

There are no AZ cases that I can find that deal with the SOL, credit cards, and choice of law.  Here's a case about choice of law and the SOL.  Even though it's not a credit card case, you can still get an idea of how the courts handle choice of law and the SOL.

 

http://scholar.google.com/scholar_case?case=3518280587430162207&q=%22choice+of+law%22++AND+%22statute+of+limitations%22&hl=en&as_sdt=4,3

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