Az Piano Lady 14

Thank You All!!---A Midland Win

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Do not rely on just the sol, although you have an excellent defense with it. Just in case the court does not accept the sol argument you also have the Doctrine of latches.

A person with reasonable intelligence and moral aptitude who may have a claim as prescribed by law and has FAILED to assert those rights in a timely fashion has lost all right to continue.

The thing about laches is it also provides for a defense that claims you have also been prejudiced by the person failure to assert his/her rights in a timely fashion.

Laches is based on the legal maxim "Equity aids the vigilant, not those who slumber on their rights."

Cases that involve the law are governed by the statutes of limitations, cases in law are those cases that involve the payment of monetary damages, but cases in equity are built on a series of legal MAXIMS which serve as broad statements of principal of which the truth and reasonableness are self evident. Equity is in the Maxim of "equity cannot suffer an injustice." 

Maxims present reasons for not granting equitable relief, of which the Doctrine of Laches is a part. Unlike the sol which is usually contained in the provision of the law Laches leaves the decision up to the court as to whether or not the plaintiff has waited to long to recover any relief.

Laches contains many variations such as "delay that works to the disadvantage of another,"(prejudice)  "inexcusable delay coupled with prejudice to the party raising the defense," "failure to assert  a right," "lack of diligence," and "neglect or omission to assert a right."

The assignee or the purchaser of debt "steps into the shoes of the assignor or the seller." There fore since the assignor or seller did not assert their rights to proceed, and has lost them, the assignee or purchaser steps into the same legal maxim, and has lost the right to proceed.

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@BTO429

 

If AZ courts don't accept the SOL of another state with a shorter SOL, laches would not be applicable.

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Wow, you guys know how to confuse a girl.  I had read alot on latches before, and I thought in Harry's posts someone said to use that, and someone else said no.   So could I just MTD based on SOL, and if denied use Latches in my answer??? Lack of standing in the answer does not seem to be working for anyone in AZ that I have looked at.  And some people say to use affirmative defense and some say not to.

 

Thoughts?

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@Az Piano Lady 14

 

Laches is a type of SOL, but it means that a party has waited so long to sue that they've prejudiced the other party in some way.

 

The SOL in DE is 3 years.  The SOL in AZ is 6 years.  If the court refuses to accept the 3 year SOL of DE, it will not accept laches as a defense because the SOL isn't up in AZ.  There's no possible reason that it could be determined that the plaintiff waited too long to sue.

 

It doesn't mean that you don't try the choice of law issue if you choose to do so.  You never know.  It might work in your case. 

 

While standing is usually the best affirmative defense (unless the account isn't yours or is outside the SOL), you have arguments you can also raise.  You attack their evidence, the amount they claim is owed, their affidavit, etc.  

 

While it's nice to have the smoking gun (SOL, proof of ID theft, etc.), it's not absolutely necessary.   All you need is a bullet.  If you can cast enough doubt in the judges mind on their claims and evidence, it might be enough for him to rule in your favor.

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Thanks, The cc agreement they sent is from Providian which has a stte bank of NH whcih is still 3 yrs . That is the SOL I planned on using as they sent me that agreemnet. Also throwing in Az for good measure.  I just really need  case law from NH sol to help my case

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Plaintiff complains of the defendant and alleges:

 

Tha Defendant is resident of Maricopa County and this court has legal authority over the subject matter of the claims, and over the Defendants.

 

That heretofore and prior to the filing of this action Defendant's did, for valuable consideration enter into a contract with Plaintiff's assignor, the terms of which are attached hereto and by reference made a hereof: that balance remaining due and unpaid on sai contract at the time of the filing of this complaint is in the amt of XXXXXX

 

The original creditor in the above referenced action is Chase Bank, the original acct no ending in xxxx and the balance of the account at the time of charge off by the original creditor was xxxxxxx.

 

That said defendants have failed and refused to pay  said balance and that said balance is justly due and owing to Plaintiff herein.  The said contract does provide for reasonable atty fees which are in the amt of xxxx if upon default together with interest.

 

Wherefore Plaintiff demands judgement against Defendant and each of them  for principal, with accruing interest and any other relief the court may deem just.

 

The undersigned atty for Plaintiff hereby certifies that he knows the dollar limits and any other limitation set forth by the local rules of practice and furthur certifies that this cas is subjject to compulsory arbitration.

 

So there you have the complaint

 

So I follow through with the MTD right??

They have to prove chain from Providian to Wamu to Chase right??

 

One affidavidt from a midland goon who I would subpoena?

 

Thoughts on how to proceed next?  Thanks!

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@Az Piano Lady 14

 

Yes, the need to prove the chain of ownership, but they don't have to do that with the complaint.  That's what discovery is for.

 

Here's the NH statute for the 3-year SOL:

 

 508:4 Personal Actions. –
    I. Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

 

Under New Hampshire law, a contract claim must be brought within three years of the contract's breach. See Coyle v. Battles, 147 N.H. 98, 100 (2001); see also RSA 508:4, I.

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Thank you again!  I will be finishing my MTD and will post before I file it next week. Thank you BTO429 for your insights into prop per vs. pro se.  All your posts are very thought provoking.  This site is truly amazing and saves us alot of time.  I have rea so many laws my eyes want to pop out and they seem to keep changing them. Again in January it looks like.

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Wondering if I should use lack of standing in my MTD. Using the Bennett v/ Napalitano case law. Any thougts about including this as well as SOL??  Also should I file a sworn denial  and do I have this don at ourt or notarized first and sign at court? Has anyone filed one lately ??

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I would raise any issues in your MTD that you would raise in a MSJ.  It forces them to support their claims from the onset.

 

A sworn denial is not necessary for a MTD, IMO, because the facts stated in the motion are supposed to be assumed as true for the purposes of ruling on the motion.

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Hi Harry, Glad you are in here. I have to get this in today.  Do you have a Motion template??? I have to type this up at the library as my printer is kaput.  I was going to just use NH SOL, but then thought because they said Chase is the OC, they will argue that. So I guess I need to include the DEL SOL as well.

 

Also they said that Chase is the OC, but that acct number ends in a different number that the providian one , and they sent statements from Wamu and Chase. So I am not quite sure what to do with that?? I never opened an acct with Chase with those last 4 numbers

 

Do you have a MTD template I can use??  Do I need to include the front page stating they have 10 days to respond??

 

And can you tell me how to put the motion on my thread for review when I'm done??   Thanks for the help!!

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Fast ideas...

 

Foget NH and Laches as a real defense however key may be to file MtD just to buy more time to do a full answer since will probably be denied but gives more time.... Not sure if any disadvantage... assume can still raise SOL as defense even if denied in MTD?  May want to be sure you preserve that defense especially if have to appeal.

 

IF have choice for SOL I believe that would be up to Chase to choose not you.  But I think it's clear if AZ resident its the AZ SOL that applies not NH.

 

Think you have much better SOL case in AZ (see another post I made with my SOL 3 yrs argument and is similar to what others have used here but not acted on.   I defeated a SJ on appeal and judge noted the SOL was in question. 

 

But I also had Provident/Wamu/Chase/Midland which was dismissed.  HUGE ammo to attack the business records based on their computer systems being so screwed up per head of credit division employee suit a few years ago.  Not sure how they are trying to address that now.  

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Sorry for not getting in here and responding before now.  I know you already filed, but...

I don't have a "motion" template per se, but this is what I filed in opposition to their MSJ.

 

http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona/?p=1263001

 

It covers all of the bases with the foreign SOL, the local case law finding 3-year SOL on AZ credit card debts, the defects in their documentation, etc.

 

 

Did you file an Answer or MTD?

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Since I was getting it in late, I did not want a MTD to look like I was stalling an answer. I filed an answer with affirmative defenses being SOL  and Standing. I am sure when the atty receives it they will immediately file a MSJ so thanks for the help there.  Should I be sending discovery yet?  Or just file the disclosure statement?

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Don't worry about "looking like your stalling". Use the time available to the fullest extent. It's there for a reason. Besides, lawyers always wait to the last possible second.

Serve them with your initial disclosure before the 40 days is up and then sit back and see what they do.

You're fine with your answer, by the way. You can always file a MTD any time, but you may be better off with a MSJ at this point.

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It would be better to get your MSJ in first, but you won't know what to attack until they provide you with initial disclosure.  Unfortunately they have the upper hand in this regard and hopefully they won't file their MSJ before or at the same time as their initial disclosure, but however it goes down, we'll work you through it.

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I would keep an eye on the case or call the court after the holidays and ask if they have filed anything besides the complaint.

 

Make sure your disclosure is filed within 40 days of the date from the 20 days you had to get your answer in , not when you filed it!!!

 

The court has the form or online, and mail to atty cmrrr. Then get ready to serve them with discovery

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Well, they served me with disclosure now. Requests for admission, interogs, and request for production of documents.

 

 

And then a week later I got from the court A notice of appointment of arbitrator??/  And then a couple days later  and 150 day order.. So I know I hav to do the answer to their questions  , and do I send them questions a well?  I would think someone in Az has dealt with Kaplan and maybe has the answers to the rogs?

 

Did not expect to get so many notices in a week. Trying to read them all and make sense of them. 

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@Az Piano Lady 14 I wouldn't recommend using someone else's answers for your rogs as every case is different. How you answer is completely dependent on how your answered the suit and what evidence has been provided. If you have rogs that you don't know how to answer, post them up here for input.

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Yes, you need to serve them with your own discovery.  You need to get them to admit that their witness(es) has(have) no personal knowledge (PK) of the account prior to it being sold to them and that they were never employed by the OC and were never custodians of the records prior to the sale of the account.  Also, ask them to admit they have no PK as to the record keeping practices of the OC, they have no PK as to whether or not the OC uses computers, or the extent they use them in creating, maintaining, extracting and preparing records such as the ones they have provided to you (statements, bill of sale, agreement, etc).  Ask them to admit that they have no PK as to whether or not the info displayed in the records was entered accurately when the record was created by the OC.  Ask them to admit that they have no PK as to whether or not the OC's computers are kept in a good state of repair and that they have no PK as to whether or not any the OC's computer data was ever corrupted or otherwise compromised by a computer virus or hacker.

 

In your interrogatories, you can ask them to describe how they obtained the personal knowledge they may claim to have in response to any of the above questions.

 

Your requests for production should be the standard requests.  Any document in Plaintiff's possession that is in any way related to the alleged debt.  Anything they intend to introduce at trial to support their claims, etc.  They have probably already provided this to you, and they will refer you to their initial and supplemental disclosures, but you gotta ask as SOP.

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One thing I forgot.  Ask them to admit the entire amount of interest they claim is owed was applied BY THEM after they purchased the debt.  Specify the dollar amount in your request, like this:

 

Admit that the entire $1234.56 in interest that you claim in your complaint is owed by Defendant was applied by you to the alleged debt following the purchase of said alleged debt.

 

And then in your interrogatories ask them to tell you the exact date they purchased the debt and then explain how they calculated the $1234.56 in interest.  Dollars to donuts they calculated it back to the date of charge-off which will probably be months (or in my case, years) before they purchased it.  There's no AZ case law and no specific AZ statute that prohibits this, but your argument will be that if the OC declined to charge interest on the debt, they waived their right and that waiver was effective over the entire time the OC owned the debt following charge off.

 

AZ does have a pre-judgment interest statute permitting them to charge interest on the debt, but you have to argue that the OC's waiver of its right to collect interest for the period of time following charge-off precludes the JDB from charging interest to this same period of time.

 

Incidentally, there is Federal caselaw from Illinois (non-binding on AZ courts) that address this practice, and, in the absence of any AZ caselaw on the subject, you should use it to argue why it should be illegal.

 

http://scholar.google.com/scholar_case?case=2198172138428082436

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