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I'll do it.  I'm going to wait until I get rulings on my Motion to Strike and Plaintiff's Motion to Continue.  I don't want my request for a jury to be used as an excuse to demand the continuance while the timeliness of their MSJ is hanging in the balance.

 

I should have rulings on these in the next couple of weeks.

smart strategic thinking. The jury trial can be used as a s**t or get off the pot device with you opting for the bench trial on day of trial. I have the necessary stuff for jury trial in AZ.

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@Harry Seaward

 

I was lucky enough to never have to respond to a MSJ.  However, when I prepared my answer, responses, and dicovery requests, I tweaked them countless times.  :-)

 

Page 9, Line 2:

 

"heresy" should be "hearsay".  Other than that, I think it looks good.

 

I'll be honest with you.  I don't believe you're going to win the DE 3-year SOL argument.  Now, I'm not an attorney and could definitely be wrong here, but there's just nothing to support your argument.  Then you have this from AZ statute 12-548:

 

B. If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies.

 

That doesn't mean I don't think you should try to claim the DE SOL.  Of course, you should try, and I hope the judge agrees with you.  Just don't be too disappointed if it doesn't work out.

 

You have good arguments for the issues of standing and authentication of the records. 

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@BV80 I'm not hanging my hat on any of this, but the DE SOL seems so logical to me because it's part of the OC agreement. How can they only object to the parts of the agreement they don't like?

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@Harry Seaward

 

Not being an attorney, the only answer I can tell you is that it's the law.   I suppose one state's laws don't trump another state's laws.   Each state has its own SOL.  Look at it this way:  If AZ's SOL was 3 years and DE's SOL was 6 years, would you want the plaintiff to be able to claim DE's SOL?

 

Citibank is out of South Dakota which has a 6 year SOL.  South Carolina has a 3 year SOL.   In the case of a credit card debt, Citi would have a hard  time suing in SC and claiming SD's 6 year statute.

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@BV80 I wouldn't want them to but if I wrote the agreement, how could I argue against it?

That's all I'm sayin'. I know it doesn't always follow common logic like that, but it should! :)

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Good Luck with that reasoning. I told you I researched SOL in Az for 8 months before my Trial.  The fact is the only cases EVER dismissed were out of SOL and grandfathered because SOL was expired three years before the law passed and was amended 7/20/2011.  I gave you case law to look at and other posts from AZ.

 

If I were you I would stick to an amazing MOSJ and leave anything to do with SOL OUT.

 

But if you are bound and determined on this course  good luck. You always have MIL to strike evidence. And I think that as I said previously you can prevail but not with SOL

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As a lawyer, I disagree that ARS 12-548 prohibits Delaware's statute of limitations from applying. That is not what the statute says. Let me describe my reasoning in a way that Harry can use in his briefs.

A.R.S. § 12-548(B ) is a conflict of laws provision stating, "If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies." A "conflict" is therefore a precondition to the clause having any applicability at all. The legislative purpose behind drafting a conflicts clause like this is to address the very common scenario where a debtor and a non-Arizona creditor enter into a debt agreement without specifying which state's laws govern the statute of limitations. In such a scenario, the debtor could argue that the locus of the contract's execution was one state while the creditor would argue it was another, depending on which state gave which party an advantage. The legislature resolved this area of dispute and confusion, by mandating that this conflict of laws question shall always be decided by applying Arizona law.

A contract which does specify which state's laws shall apply does not pose a conflict of laws issue. That is the case with respect to the agreement at issue here. The agreement states in clear, unambiguous and explicit language that the statute of limitations of Delaware applies. In Arizona as in all states, parties are free to negotiate contracts in any manner they wish that is not prohibited by law or public policy. "A basic policy of contract law... is to preserve freedom of contract and thus promote the free flow of commerce." Salt River Project Agr. Imp. and Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368, 376, 694 P.2d 198, 206 (1984), abrogated on other grounds by Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 111 P.3d 1003 (2005). The creditor agreed to apply the Delaware statute of limitations in its agreement with Plaintiff, in writing, and indeed drafted the agreement of its own accord. There is no legal basis on which to strike down the agreement's own language.

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@hot in az



Good Luck with that reasoning. I told you I researched SOL in Az for 8 months before my Trial.  The fact is the only cases EVER dismissed were out of SOL and grandfathered because SOL was expired three years before the law passed and was amended 7/20/2011.  I gave you case law to look at and other posts from AZ.

 

If I were you I would stick to an amazing MOSJ and leave anything to do with SOL OUT.

 

But if you are bound and determined on this course  good luck. You always have MIL to strike evidence. And I think that as I said previously you can prevail but not with SOL

 

We're talking about the Delaware SOL from the agreement, not AZ.

 

And I told you I don't agree with your analysis of the AZ SOL prior to the amendment because there is no caselaw supporting it, but we've had that debate already.

 

I'm not counting on the SOL carrying the burden of my objection, but it would be silly to not include it.  It may get traction with the JP, but if I don't include the SOL argument now, I can't introduce it on appeal.

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@UCL

 

I understand what you're saying, but from what I've read, it's not just about the governing law in an agreement.   It seems that if courts determine the SOL to be a procedural issue, then the SOL of the forum state applies.  It appears that AZ considers the SOL to be a procedural issue.

 

Quoting the AZ Supreme Court in Monroe v. Wood, 1986:

The traditional rule regarding statutes of limitation is that they are procedural and therefore governed by the law of the forum state. Restatement (Second) Conflict of Laws § 142. This continues to be the rule in Arizona. Ross v. Ross, 96 Ariz. 249, 393 P.2d 933 (1964); Colorado, Casselman v. Denver Tramway Corp., 195 Colo. 241, 577 P.2d 293 (1978); and New Mexico, Sierra Life Insu. Co. v. First Nat'l Life Insu. Co., 85 N.M. 409, 512 P.2d 1245 (1973).

 

Based upon the above, I'm thinking that the only way another state's SOL would apply would be if a court determined that AZ has no real interest in the case?

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@UCL that was how I was interpreting the "conflict of laws".  The caselaw I found applying AZ SOL over any other state's SOL were in regards to non-contract torts.  I found nothing establishing contractual choice of law provisions are invalid in AZ.

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@UCL

 

I understand what you're saying, but from what I've read, it's not just about the governing law in an agreement.   It seems that if courts determine the SOL to be a procedural issue, then the SOL of the forum state applies.  It appears that AZ considers the SOL to be a procedural issue.

 

Quoting the AZ Supreme Court in Monroe v. Wood, 1986:

The traditional rule regarding statutes of limitation is that they are procedural and therefore governed by the law of the forum state. Restatement (Second) Conflict of Laws § 142. This continues to be the rule in Arizona. Ross v. Ross, 96 Ariz. 249, 393 P.2d 933 (1964); Colorado, Casselman v. Denver Tramway Corp., 195 Colo. 241, 577 P.2d 293 (1978); and New Mexico, Sierra Life Insu. Co. v. First Nat'l Life Insu. Co., 85 N.M. 409, 512 P.2d 1245 (1973).

 

Based upon the above, I'm thinking that the only way another state's SOL would apply would be if a court determined that AZ has no real interest in the case?

Monroe and the cases cited by it (Ross, Colorado and New Mexico Life) do not involve contracts with choice of law provisions.  In cases without an agreement establishing a choice of law (e.g. personal injury, private loan, oral agreement, etc), I agree with you that a court needs to establish what law applies.  Where there is a contract (i.e., an agreement among the parties) specifying what law applies, I see no reason a court should step in and change what the parties have agreed to, so long as it's does not violate any other laws.

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Here is draft #5 with Statement of Facts and Affidavit attached.

I decided to address the AZ 6-year vs. 3-year SOL because they brought it up in their MSJ.  I didn't want the court to have any excuse to say the 6-year applies because I didn't raise the argument.

 

I also want to make sure all of my bases are covered on my affidavit.

 

[deleted. see post #95 for final draft]

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Looks good to me. I just wondered about on first page ,None of the Plaintiff's evidence can be admitted in trial. Since the judge hasn't ruled yet should it say None of the Plaintiff's evidence Should be admitted at trial.?  Also if your trial is Oct and the filed MSJ Aug were they out of the 90 day time frame to file it ? I didn't see anything about untimely filing so I wondered. But great work on this!

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Looks good to me. I just wondered about on first page ,None of the Plaintiff's evidence can be admitted in trial. Since the judge hasn't ruled yet should it say None of the Plaintiff's evidence Should be admitted at trial.?  Also if your trial is Oct and the filed MSJ Aug were they out of the 90 day time frame to file it ? I didn't see anything about untimely filing so I wondered. But great work on this!

I have filed a Motion to Strike their MSJ due to the untimely filing of it.  The JP has not ruled on my motion yet and my opposition to SJ will be moot if that motion is granted, but I want to get this going and get it filed in the next week or so since my 30 days to respond expires at the beginning of next month.

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@BV80 @Seadragon @UCL
Here is my final draft of my Opposition. I've included everything (SOF, affidavit, Exhibits, etc). I'm mostly concerned about my SOF and affidavit.  I want to make sure there are no loopholes for them to do to me what I'm about do to them.  :-D

 

Let me know what changes you all think I should make.

 

Thanks a ton!

 

 

Final Draft Opposition to Plaintiff's MSJ (incl SOF and exhibits)_Redacted.pdf
 

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