Complaint was filed, but the alleged default date is not stated

[GDayMateAZ]

Never wanted to be here again ....

 

But I have a new Complaint.

 

At this time I don't want to provide too much details about my new case.

 

My question is below.

 

I was surprised that Plaintiff did not bother to state a Date of Alleged Default:

 

 

“The Plaintiff declared the Defendants(s) to be in default

    and  demands payment of the balance due on the Note.

    Defendant(s) have refused said demand.”

 

Nowhere in this Complaint a Date of said Default can be found.

 

I'm preparing a Motion to Dismiss this Complaint for Failure to State a Valid Claim

due to IMMATERIAL Cause of Action.

 

Such Motion to Dismiss can be filed at the outset

before filing the Answer with Affirmative Defenses.

 

Is IMMATERIAL is correct word for stating EVENT without its DATE ?

 

 

 

 

 

 

[1stStep]

Who's suing?

[GDayMateAZ]

It's OC and the alleged debt is not Credit Card.

[shellieh98]

was it a loan? and when is the last time YOU think there was any payment on the account?  SOL is different for a written contract vs. credit card type debt.

[GDayMateAZ]

was it a loan? and when is the last time YOU think there was any payment on the account?  SOL is different for a written contract vs. credit card type debt.

Shellie,

 

Allegedly it was SLM loan.

 

They sent some old docs dated between 2000 and 2003.

There is no Promissory Note.

 

But they don't state a date of alleged default.

[BV80]

Do you mean "Failure to state a claim for which relief can be granted"?

 

I'm not sure they have to provide a date of default in the complaint.  That's something that could be requested in discovery.  If you claim the account is not in default, has been paid, or is time-barred, that would be your defense, or I guess a reason for a dismissal if you have proof.

[shellieh98]

some states have a sol of 10 years on a signed contract.  But I think since they didn't include a default date (most likely on purpose, that is a lot of money, lol) it would behoove you to investigate further before answering if you have time.  Can you go to the bank and get copies of statements for those years?  (assuming there may have been an account)

[racecar]

 Failure to state a cause of action

 

A complaint should not be dismissed for failure to state a cause of

action unless the movant(that's you) can establish beyond any doubt that the claimant

could prove no set of facts whatever in support of his claim.

 

Test for motion to dismiss for failure to state cause of action is whether

pleader could prove any set of facts whatever in support of claim. A

motion to dismiss should not be granted if the pleader(that's them) sets forth facts in

his complaint upon which relief can be granted on any theory.

 

The court is going to look at the allegations of a complaint as true and in the light most favorable to the plaintiff.

Then the court will look at the 4 corners of the complaint.

Even if the complaint has defects it is easily amended.

Then your right back in court in two or three weeks.

I would answer the complaint same as I would a credit card case. Its all the recovery of money.

Deny all the allegations in plaintiffs complaint and make them prove their case.

[GDayMateAZ]

Do you mean "Failure to state a claim for which relief can be granted"?

 

I'm not sure they have to provide a date of default in the complaint.  That's something that could be requested in discovery.  If you claim the account is not in default, has been paid, or is time-barred, that would be your defense, or I guess a reason for a dismissal if you have proof.

Hi BV80,

 

Nice to meet you again

 

Yes, I mean this: "Failure to state a valid claim"...

I appreciate your advice about date.

[GDayMateAZ]

 Failure to state a cause of action

 

A complaint should not be dismissed for failure to state a cause of

action unless the movant(that's you) can establish beyond any doubt that the claimant

could prove no set of facts whatever in support of his claim.

 

Test for motion to dismiss for failure to state cause of action is whether

pleader could prove any set of facts whatever in support of claim. A

motion to dismiss should not be granted if the pleader(that's them) sets forth facts in

his complaint upon which relief can be granted on any theory.

 

The court is going to look at the allegations of a complaint as true and in the light most favorable to the plaintiff.

Then the court will look at the 4 corners of the complaint.

Even if the complaint has defects it is easily amended.

Then your right back in court in two or three weeks.

I would answer the complaint same as I would a credit card case. Its all the recovery of money.

Deny all the allegations in plaintiffs complaint and make them prove their case.

Racecar !

 

Thank you a lot !!!

 

This info came to me just in time !

[GDayMateAZ]

 Failure to state a cause of action

 

A complaint should not be dismissed for failure to state a cause of

action unless the movant(that's you) can establish beyond any doubt that the claimant

could prove no set of facts whatever in support of his claim.

 

Test for motion to dismiss for failure to state cause of action is whether

pleader could prove any set of facts whatever in support of claim. A

motion to dismiss should not be granted if the pleader(that's them) sets forth facts in

his complaint upon which relief can be granted on any theory.

 

The court is going to look at the allegations of a complaint as true and in the light most favorable to the plaintiff.

Then the court will look at the 4 corners of the complaint.

Even if the complaint has defects it is easily amended.

Then your right back in court in two or three weeks.

I would answer the complaint same as I would a credit card case. Its all the recovery of money.

Deny all the allegations in plaintiffs complaint and make them prove their case.

Racecar,

 

Based on your information, I abandoned my original idea to file the "Motion to dismiss the complaint for failure to state a valid claim".

 

Today I filed with the Court the "Motion for a More Definite Statement" ...

[GDayMateAZ]

was it a loan? and when is the last time YOU think there was any payment on the account?  SOL is different for a written contract vs. credit card type debt.

 

Shellie,

 

By the way, people should not post on Public Forums their real stuff.

 

Plaintiffs' lawyers are snooping here ....

[GDayMateAZ]

Bad news: yesterday the Judge unfiled and returned my Motion for not conforming with the new AZ JCRCP:

 

1) not including the Court address on the top right corner of the first page;

 

2) not including the required for Motions Notice that Plaintiff has only 10 days for response.

 

Good News: I can rework my Motion: AZ SOL 4Y ARS 12-544(3) "..upon an instrument in writing executed without the state" is applicable for my case.

Edited August 24, 2013 by GDayMateAZ

[GDayMateAZ]

 Failure to state a cause of action

 

A complaint should not be dismissed for failure to state a cause of

action unless the movant(that's you) can establish beyond any doubt that the claimant

could prove no set of facts whatever in support of his claim.

 

Test for motion to dismiss for failure to state cause of action is whether

pleader could prove any set of facts whatever in support of claim. A

motion to dismiss should not be granted if the pleader(that's them) sets forth facts in

his complaint upon which relief can be granted on any theory.

 

The court is going to look at the allegations of a complaint as true and in the light most favorable to the plaintiff.

Then the court will look at the 4 corners of the complaint.

Even if the complaint has defects it is easily amended.

Then your right back in court in two or three weeks.

I would answer the complaint same as I would a credit card case. Its all the recovery of money.

Deny all the allegations in plaintiffs complaint and make them prove their case.

 

@racecar,

 

The Judge gave me the second chance returning my Motion (see my previous post)

and I found out that I'm able "to establish beyond any doubt that the claimant

could prove no set of facts whatever in support of his claim".

[shellieh98]

Shellie,

 

By the way, people should not post on Public Forums their real stuff.

 

Plaintiffs' lawyers are snooping here ....

Not wanting personal info, sometimes it is important to know what type of debt is is/was, there are different laws that apply accordingly.  Some types of loans have a up to 10 year SOL, some have 6 year some have 2 year.  they can read all day long, but if they don't know who you are, they are not going to make the connection.  Unless your Coltfan1972, he sent them a link to his thread.

[GDayMateAZ]

Not wanting personal info, sometimes it is important to know what type of debt is is/was, there are different laws that apply accordingly.  Some types of loans have a up to 10 year SOL, some have 6 year some have 2 year.  they can read all day long, but if they don't know who you are, they are not going to make the connection.  Unless your Coltfan1972, he sent them a link to his thread.

 

OK, I'd try to answer your questions with some modification to avoid being caught

 

What is the story about @Coltfan1972 ?

[shellieh98]

Go look him up he is actually very smart, very knowledgable in the laws of his state, had a big suit against a credit union for fdcpa violations, was doing well, and then went to a depo, gave them links to his threads, and they used them against him. He won his case technically, but they awarded 0 damages. (All in a nutshell)

[Seadragon]

Racecar,

 

Based on your information, I abandoned my original idea to file the "Motion to dismiss the complaint for failure to state a valid claim".

 

Today I filed with the Court the "Motion for a More Definite Statement" ...

Best move and extends the time to answer the complaint I would prepare an answer and file it as soon as the hearing. work on what you know now and update it as you get more information.

 

They are fishing for default judgment.

[GDayMateAZ]

Best move and extends the time to answer the complaint I would prepare an answer and file it as soon as the hearing. work on what you know now and update it as you get more information.

 

They are fishing for default judgment.

1. The last Monday (08/26) I re-filed (and sent it to Plaintiff by Certified Mail)

my Motion to Dismiss for Failure to State a Valid Claim

and this time it was accepted by the Court. 

 

2. Plaintiff has 10 business days to respond (after the date they received it ),

otherwise their Complaint could be dismissed.

As of today, I did not receive anything back.

 

3. The Court's Response Fee $65 was paid during my first (later returned to me) filing on 08/20.

 

4. How could Plaintiff file for Default Judgment now if I filed my Motions in time ?

 

5. I should file my Answer to this Complaint within 20 days after getting the Court's Denial. 

[1stStep]

They could, but you will get 10 days to answer...

[GDayMateAZ]

They could, but you will get 10 days to answer...

 

It's 20 days under JCRCP Rule 116((3):

 

https://www.azcourts.gov/Portals/20/2012Rules/R120006.pdf

Justice Court Rules of Civil Procedure (Arizona)

 

Rule 116: Filing a response to a complaint.

 

b. Proceedings after a motion is made under this rule.

 

(1) If the court grants a motion to dismiss, and if no permission to amend the complaint

is granted by the court, the court will enter judgment as provided in Rule 139.

 

(2) If the court grants a motion for a more definite statement or a motion to strike the

complaint, the plaintiff has twenty (20) days after the motion is granted to file an

amended complaint, and the defendant has twenty (20) days after service of the amended

complaint to file a response to the amended pleading.

 

(3) If the court denies a motion under this rule, the defendant must file an answer to the

complaint within twenty (20) days after the motion has been denied.

[Seadragon]

I hate that you have to go through a new case. I stand ready to help. you have the new JCRCP rules I believe? It is good the judge sent it back, when they do sloppy stuff then theirs should be sent back also.

[GDayMateAZ]

I hate that you have to go through a new case. I stand ready to help. you have the new JCRCP rules I believe? It is good the judge sent it back, when they do sloppy stuff then theirs should be sent back also.

@Seadragon,

 

Thank you a lot for compassion !

 

I hate this, too

 

Of course, I have the latest AZ JCRCP - downloaded from this link:

 

https://www.azcourts.gov/Portals/20/2012Rules/R120006.pdf

[GDayMateAZ]

Two days ago, I've received the Plaintiff (SLM) Attorney response to my Motion to Dismiss.

 

Now the Attorney stated the Charge-Off Date (somewhere in 2008) as Default Date.

 

According to Cheatham v. Sahuaro

the day of default is the day when the Loan becomes Past Due,

that is, when Lender can sue

http://scholar.google.com/scholar_case?case=9788968178068431489&hl=en&as_sdt=2&as_vis=1&oi=scholarr

).

 

It looks, like Plaintiff admitted, that 20 USC 1091a does not protect "Career Training Loans" (15 years, 16% annual interest rate)

from States SOL.

 

However, Plaintiff asserts that AZ SOL 6 years ARS 12-548 must apply.

 

The alleged written instruments ("Web Application" and TILA Disclosure)

were made and given in Florida (circa 2002).

 

On my opinion, AZ SOL ARS 12-544(3) must apply.

 

I'm waiting the Judge's decision.

Edited September 16, 2013 by GDayMateAZ

[GDayMateAZ]

As of 09/15/13:

Still waiting the Court's Decision on my MTN to Dismiss the Complaint as Time-Barred

ARS 12-544(3).

Edited September 16, 2013 by GDayMateAZ