Az Piano Lady 14

Thank You All!!---A Midland Win

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Hi, Been browsing but I have not found the answer to my question. Hope someone can help.

Here are the answers to the questions. Sorry i could not figure how to get them here so I'm just putting the answers to them.

1. Plaintiff is Midland

2. Kaplan is Law Firm

3. Approx 10,000

4. OC listed as Chase

5. Served

6. In person

7.  Legal service YES

8. No prior correspondence

9. MC, Az

10. Last alleged payment date 9/4/09

11. SOL is my question Looks like three yrs

12. Complaint filed and served . Working on my answer.

13. Haven't pulled my credit but I will and if they are listed I will dispute

14. Yes requested and received DV (if you could call it that)

15. 20 days after service to file answer

16. They sent an affadavit from Midland employee. And a Providian Bank Visa & MC card agreement. That was all in the complaint.

The DV they sent was some pages of statements from WAMU

 

 

My questions in preparing my answer are these:

 

1.Since they sent a cardmember agreement from Providian stating the law governing the agreement was located in New Hampshire and their law on written accts is three years do I use SOL as an affirmative defense or file a motion to dismiss or both?

 

Also do I mention the amounts in DV and the Complaint are Different.

All previous MCM statements had different pmts as they added interest but the last one sent was way higher that the DV or complaint.

 

Any help is appreciated as I have tried to find the answers here but I guess I don't know how to search right yet?/

 

 

 

 

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Delaware Code Title 10, Chapter 81, § 8106 establishes a 3 year statute of limitations for the plaintiff’s cause of action.

 

What is the date on the card member agreement from Providian? must be around 2005

 

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

 

In your answer to the complaint

 

MY court name here

plaintiff name

plaintiff

vs

defendant name

defendant
case #

DEFENDANT’S ANSWER AND AFFIRMITIVE DEFENSES TO PLAINTIFFS COMPLAINT


COMES NOW the defendant MY NAME, Pro se (hereinafter referred to as"defendant"), submits Defendant’s Answer and AFFIRMITIVE DEFENSES to Plaintiffs' Complaint as follows:
The allegations of plaintiffs complaint

Paragraph 1 of the Complaint Defendant admits venue is proper
Paragraph 2 of the Complaint Defendant admits his name is john smith
Paragraph 3 of the Complaint Defendant denies midland is the legal owner of the debt.

Defendant is without information or knowledge sufficient to form a belief as to the truth
of the allegations contained in ¶ 4, ¶ 5, ¶ 6, ¶ 7, ¶ 8, ¶ 9 ¶

 

As to all remaining allegations of fact in the unnumbered ¶ 1 through ¶ 9 of the complaint
not specifically admitted, Defendant denies all such allegations. As to all remaining
allegations which call for a legal conclusion, Defendant lacks sufficient knowledge or
information to respond to such legal conclusions and, therefore, denies them.

 

 

 

AFFIRMATIVE DEFENSES
By and for her Affirmative Defenses,

Defendant states:

First Affirmative Defense
1. Statute of limitations

 

WHEREFORE, Defendant prays that this Court find judgment for Defendant,
deny Plaintiffs’ request for relief, deny Plaintiffs’ request for damages, deny
Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief whatsoever. Defendant further prays that this Court hold that Defendant is the prevailing party, and dismiss Defendant with prejudice.

 

my name
Defendant
address
phone


CERTIFICATE OF SERVICE BY REGULAR MAIL
I, my name do hereby certify that a true and exact copy of the foregoing Answer To Plaintiffs Complaint was served to JUNK DEBT BUYER by United States mail, postage prepaid, addressed as follows to attorneys name and address for JUNK DEBT BUYER.
from: my name my address my phone sent on this date 08/20/2013

 

 

 

 

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I wouldn't file an answer yet. File a motion to dismiss based on New Hampshire SOL if that's the governing law stated in the agreement. If your motion gets denied, you'll then have another 20 days to file an answer.

Edit: does the complaint allege when the last payment or charge-off happened?

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They sent the Providian agreement from 2001.  In the DV stuff they claim the last pmt was 9/6/2009, but the electronic statemts say 9/4/2009  and in the DV letter it says the default date is 4/30/2010  and the amt is way different from the complaint amt??

The 2001 providian cc say new hampshire is the governing state and this agreement is written not oral.

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What is the sol for New Hampshire ? Since chase bought providian, they put the account under chases agreement, which governing law is Delaware, 3 year sol. If NH sol is 3 years also, I would cite both in my motion.

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new hampshire is stated in the cc agreement they sent with the complaint. They have a 3 yr sol. But from providian i think it was transferred to Wamu ?  It seems if they have 3 different amts listed on these forms that maybe they don't know the amt. Is that a defense??

I was confused a little before posting, maybe moreso now. So a MTD or an answer seems to be my question?

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Ok, if they provided you with documentation claiming the last payment was 9/6/09, use 30 days following that date as the origin of the "cause of action" (allegedly the first missed payment).  They claim the "default" was 4/30/10 because that's most likely when the debt was charged-off.  Even if the courts accepts this as the origin of their cause of action, it's still past SOL by nearly 4 months.

 

Don't get mired in the differing amounts right now.  You want to try to get this thing kicked before you get tangled up in litigation.  File a motion to dismiss citing the 3-year SOL based on New Hampshire choice of law from the agreement they gave you and attach the DV letter stating the last payment was on 9/6/09.  If they start hemming and hawing about Delaware or Arizona (which they almost certainly will), you can cross that bridge then.  Don't complicate the issue until they bring it up.  After you file your MtD, they have 10 days to respond and then you have 5 days to reply to their response.  As I said before, if the judge denies your motion, you can file your answer after that.  You're not losing anything by filing a MtD first.

 

Here's an idea of how to plead the "law and argument" part of your MtD.  Change the dates to whatever they should be for your case and change any references from Delaware to New Hampshire and dig up the NH statute to include with your motion.  Also reference their DV at some point and the dates they have in there.

 

 

 

 

Defendant denies owing a debt to the Plaintiff but asserts that if he ever had an account with the Original Creditor, and said account was in fact sold and/or assigned to Plaintiff, Plaintiff is obligated by the Agreement of any such account to recognize the laws of the State of Delaware as to the governing statutes for the Agreement.

With regard to the Statute of Limitations, Title 10 §8106(a) of Delaware Code states:

“No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, 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, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action”. (Emphasis added).

 


Under well established law, a cause of action accrues when a plaintiff is first able to sue, and a plaintiff's failure to assert a cause of action does not mean that the cause of action has not accrued. See Sato v. Van Denburgh, 599 P. 2d 181 - Ariz: Supreme Court 1979, and Cheatham v. Sahuaro Collection Serv., Inc., 577 P. 2d 738 - Ariz: Court of Appeals, 1st Div., Dept. B 1978. In the case of a credit card debt, a cause of action can be any of the numerous defaults identified in a Cardholder Agreement, but most notable to the instant case is the date of the alleged first missed payment. Defendant denies owing a debt to Plaintiff but asserts that, if a debt was in fact owed to the Original Creditor, the last payment could not have been made on a date following November of 2008. Furthermore, Plaintiff has provided nothing demonstrating any payments made following November 2008. The Agreement states that payments were due monthly, thereby making the first missed payment to have allegedly occurred no later than December 2008, and making Plaintiff's alleged cause of action to have originated on that date, as we see in Sato and Cheatham.

Applying the 3-year statute of limitations to the correct event, the alleged default of the subject debt, causes Plaintiff's right to pursue legal action on its claims, if any, to have expired in December of 2011 – nearly a year before Plaintiff filed its lawsuit.

Plaintiff's claims must therefore be dismissed for failure to prosecute in the time allowed.

 

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Okay , I will take your advise and file the MTD first. Thank you for the example. I was looking at AZ  RFP and I think if I am correct you can file the MTD before the answer.  Do I have to use a special form or just type it up?  The only motion form I saw did have much room for anything.

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That is correct.  Valid responses to a complaint in AZ can be an Answer, a Motion to Dismiss or a Motion for a More Definitive Statement.

 

Some people use the forms but I think it makes you look more like you know what you're doing if you type them up.  Use their complaint as a template.

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I was reading While You Are In Debt Validation Q&A (I did do that ) And came across Use 623 Method or let it sleep. And that thread said SOl has to do only with your state?/ So should I still proceed with a MTD on SOL or just type up an answer? Sorry for so many questions. It seems the more I search the more I doubt what I should do. I did look at the Az Rules of Procedure so I know I have to file the answer. Thanks again for helping

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Does anyone have a thought on this? I googled Can I use Providians choice of law as new hampshire in Az? The third one down says no. In a case in Oregon the 9th circuit court of appeals held that a debt collector did not violate the FDCPA by filing suit to collect a CC debt because of the NH tolling provision prevented the debt from being time barred. Avery vs. First Revolution Mgmt Corp No.07-357261,2009 WL 86 1727 9th Cir April 2, 2009

Now I know this was an appeal but makes me think it might apply to me. Because the person in Oregon was also citing a CC statement from 2001??? Is that why they sent me that one and not one from Chase who they are alleging as the OC.

I don't know how you all do this because my head is trying to wrap around the fact I can google and read but still not know exactly what to do. Also it says that Providians headquarters was CA so in that case it was a factor.

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Oregon may not have borrowing statutes, but Az does.  Also you case may have been "grandfathered" in AZ own SOL laws because the default was in 09, and your laws changed in 4/11, 2 years after the default.

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If this is a Providian or WAMU, there may still be the "nuclear cockroach" arbitration clause in it. Look for it - this could be an option.

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FDCPA/FCRA claims are if you are suing them.

There is no AZ case law regarding SOL for them suing you with an agreement stating choice of law from another state. Chances are the judge will deny your motion to dismiss but it's worth a shot. If it gets denied you file an answer and go forward from there.

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The cc agreement says it is subject to compulsary arbitration. Also would I still use the NH sol or as shellie says use the Az law? I've been trying to come up with a case statute for New Hampshire but it all seems against me using it.

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They or you can elect arbitration. Ten years ago on a debt of this amount they probably would have done it. It's not likely now.

 

 

There is NO AZ caselaw re: choice of law in credit card agreements. This means either a) it's never been raised (incredibly unlikely), B) no one ever wanted to appeal a trial court's ruling on the matter (also very unlikely), or c)  the parties settled out before an appeals court had a chance to consider the dispute (far and away the most likely possibility). In the case of 'c' it also seems very likely it would be the JDB/OC wanting to keep this  away from appeal. They have the most to lose if there is caselaw in the consumer's favor.

 

Current AZ SOL on credit card debts is 6 years. If you concede AZ statutes govern the agreement, you'd be giving them 75% of what they need to stick you with the 6 year SOL. If you come out of the gate with the NH SOL from the agreement THEY PROVIDED, in order to get you on the 6 year SOL they would have to first convince the judge their agreement doesn't apply, even though they provided it.

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It's just my thoughts but if you are going to try SOL, I would use the Chase or 3yr Sol unless you signed the alleged agreement in another state. Then you could apply the NH COL to your MTD.  And it looks like the date of your last pmy would not grandfather you for AZ Sol.

Hopefully someone else from AZ will chime in

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Should I attach not only the DV they sent but also the copy of the Providian CC agreement with my MTD??

Yes, you need to demonstrate the dates they claim as last payment and charge-off from documents they provided to you.  And also attach the Providian agreement and draw attention to the specific page demanding NH statutes.

 

Make it clear in your MTD that you deny owing a debt and when you disputed the debt with Midland, this is what they provided to you.  You are not acknowledging the debt itself, but simply demonstrating that IF a debt did exist with the original creditor, any claims that may have existed are barred by the NH SOL in accordance with the attached Agreement.

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I goofed and posted this on Harry's thread by accident.

 

The Plaintiff never served me. Asked the judge in late October to do alternative service.

 

Still have not been served and when I checked my case online there is a NOTE that says for this week

 

322 ME  Notice of intent to Dismiss .  Does anyone know what this means?? I could not find a 322 in JCRCP

 

Thank You

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It's probably because of 1 or 2 things... 1) the judge denied them doing alternative service, or 2) they can't find you to serve you. So in order to keep the court calendar from filling up, the court administratively will dismiss cases if they aren't filed in a certain time frame. 

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The judge allowed alt service and they served me yesterday. So I really need help with case law on NH SOL to file my MTD. Have enough on Az . That will most likely be denied, but since AZ has a borrowing statute , and they sent me a Providian NH agreement , I need to file a MTD based on that.

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@Az Piano Lady 14

 

@Harry Seaward is attempting to use the SOL of another state.   If you're referring to AZ Statute 12-506, unless you lived in another state, and the default occurred in that state, the statute would not apply.

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Ok, So , they sent me a CC agreement based on the bank of NH which is 3 years.  Harry advised to file a MTD based on the 3 yr SOL of NH  AND the 3 Yr Sol of AZ.  Is there a better argument in the MTD than SOL, or in addition to SOL,  as in they have to prove chain of command from Providian , to Wamu , to Chase??? 

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