Az Piano Lady 14

Thank You All!!---A Midland Win

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This is over 10,000 so already in Superior court.  I can post it if you tell me how to do it.

They claim Plaintiff is a valid assignee of Chase using Independant National Bank v. Westmoor Electrice Inc 164 Ariz567, at 571, 795 P. 2d 210, at 214 (APP. 1990)

 

Defendants entered into a cotract.  Using here Bank of America v. Jarczyk 268 B.R. 17, 22-23 (W.D.N.Y.., 2001)

 

Defendants have breached the contract. Showing a defferent affaiant of MCM than was sent in DV. And theyhave not returned my RFP or RFA's yet and its been over the 40 days.

 

Statute of Limitations. They are using Cook v. Cook 209 Ariz 487,490 (Ariz Ct. App 2005)

 

So shoul I still send a reminder on the Rogs and file a MTC with the court??

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It would be helpful to know how they used Cook vs Cook so folks here might counter argue.

 

Here are the relevant points of Cook related to the retroactive application of law:

 

Cook v. Cook, 104 P.3d 857, 209 Ariz. 487 
This case depending on how view it seems more to support the idea that the shorter SOL date can NOT be applied retroactively.
 
However the key issue seems to be if SOL relates to a procedure or a vested right.  Does a creditor have a vested right to rely on the current 3-year SOL.  Seems that issue has never been addressed by the Courts and I can see arguments either way. 
 
Here are excerpts of the Cook case:
 
¶ 22 Appellee argues that her marriage was recognized in Arizona prior to the 1996 *864• amendments and became, in her case, a substantively vested right. She further argues that if we construe the 1996 amendments to take away this vested right, A.R.S. § 25-112(A) runs afoul of Arizona's prohibition against retroactive legislation. For the following reasons, we agree. Because an alternative construction is available to us, we adopt that construction.
 
24 Not all retroactive legislation, however, is prohibited. "A statute that is merely procedural may be applied retroactively." San Carlos Apache Tribe v. Superior Court (Bolton), 193 Ariz. 195, 205, ¶ 15, 972 P.2d 179, 189 (1999) (citation omitted). However, our supreme court has made it plain that "legislation may not disturb vested substantive rights by retroactively changing the law that applies to completed events." Id. (citation omitted) (emphasis added); Hall v. A.N.R. Freight Sys., Inc., 149 Ariz. 130, 140, 717 P.2d 434, 444 (1986) ("[L]egislation may not retroactively disturb vested rights."); State v. Murray, 194 Ariz. 373, 375, ¶ 6, 982 P.2d 1287, 1289 (1999) ("[T]he legislature... `may not disturb vested substantive rights.'") (quoting San Carlos, 193 Ariz. at 205, 972 P.2d at 189).[7]
 
The Arizona Supreme Court continued:
Thus, the implicit meaning of the statement "substantive rights may not be retroactively impaired" is "substantive rights may not be impaired once vested."
 
27 Notwithstanding the application of the "vested right" concept primarily to cases involving property, the standard for determining such rights has been defined to allow recognition of the right here. As early as 1913 our supreme court defined "vested" rights as follows:
 
"Rights are vested, in contradistinction to being expectant or contingent. They are vested, when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest...." A "vested right" is defined to be an immediate fixed right to present or future enjoyment, or where the interest does not depend on a period, or an event, that is uncertain.
 
33 By construing the statute to apply prospectively only, we harmonize the 1996 amendments with Arizona's constitutional prohibitions against retroactive legislation.
 
34 Further, A.R.S. § 1-244 (2000) expressly provides that "[n]o statute is retroactive unless expressly declared therein."
 
Cited by 2 cases
* State v. Rios, 237 P.3d 1052 (Ariz. Ct. App. 2010) 
Court of Appeals of Arizona | Aug. 12, 2010 | Cited 2 times
* Donaldson v. State of Montana, 2012 MT 288 
Montana Supreme Court | Dec. 17, 2012 | Cited 1 time
 
I have not had time to review these latter cases but none of them deal with SOL being a vested right or not.

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Great info. I used affirm defense in my answer of Sol being NH because that is the card agreement THEY supplie to me and I also argued in my disclosure that SOL is not a procedure.

They are claiming a complete chain of custody from Wamu to Chase yet sent me a Providian cc agreement.

 

I also put their affiant or any others they may provide(which they did) on my disclosure as witnesses to be called at trial. Seems like this should be reason to not grant a MSJ, as their are genuine issues for trial???

 

And my still outstanding question is do I send them a reminder for Rogs and file a MTC (fast track) to the court??

 

The SOL usage of Cook vs. Cook is this: This is in their standard for summary judgement section

 

Az's current applicable SOL is as follows:

 

Contract in writing for debt 6 year imitation, choice of law. If there is a conflict between another jurisdiction and this state relating to SOL for a debt action as described this section applies

 

ARS 12-548 (emphasis added) This is a clear statutory directive A court subject to constitutional restrictions will follw a statutory directive of it's own state on choice of law.

 

Reinstatement (second conflict of law 6(1) (1971) (Reinstatement) Arizona law follows 6(1) Cook vs Cook

 

An Arizona court must abide by the statutory directive to apply Arizonas SOL. Here, the action is for a breach of a credit card contract, and therefore , the Court must apply Arizona's 6 year SOL per the legislature's statutory directive, notwitstanding any other jurisdiction's SOL. Because the last pmt was made Sept, 2009, withing six years of Plaintiff filing this action, the action is timely.

 

Now the conclusion they claim  Plaintiff has demonstrated that Defendants entered into the contract ( by providing a Providian card agreement from 2001),  Defendants breached the contract by not paying

Plaintiff is a valid assignee of the contract ( I argued standing in my answer)

 

And court should enter SJ

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I need time to find it but if helpful I have:

1) Briefed a Chase case with a Judicial Notice I believe filing about the bad records of Chase.  This was the case of the ex-employee whistle blowing action where she was fired by objecting to all the errors and false records of Chase.  In my case Chase dismissed the case after I filed extensive briefs on the unreliability of Chase records especially the allegations of the ex-employee.    About the same time Chase dismissed all cases in certain states due to the records question.  Arizona was not one of the states they dismissed in, so I am not clear what effect my briefs made but obviously they didn't want to fight the records issue. 

 

2) There is a lot of ammo for the AZ 3 yr SOL regarding retroactive change in law or "clarification" - not yet ruled on but the Cook case could provide ammo on both sides. 

 

3) Using extensive arguments about SOL, lack of foundation/affiant not qualified/ and attack overall on computer records accuracy largely based on a few years study of ideas shared here, it was clear to me the Superior Court realized the issues when they reversed Justice Court granting MSJ against me.  The MOSJ was key which was highlighted in the reversal.  But it was not a clear win since just against the SJ in Justice Court.  But Superior Opinion was excellent in using my issues in my filings in Justice Court.    Justice Court than started the whole process again.  I went to arbitration again. The creditor attorney said had not seen a file so thick with my briefs.  Because I really didn't want to spend the time fighting again - nor they - We settled for a nominal amount - they seemed thrilled to accept vs continuing in court. 

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I believe I read that case employee inda something?? Maybe MN? Harry asked me if I would appeal. I 'm already in Sup court and really I do not intend to lose this MSJ

I will send them a reminder tommorrow of the Rog's they need to send and wait the 10 days and file a MTC with the court. I will work on the MOSJ and keep looking for cases on the SOL  as well as anyone who has been sued from Providian to Wamu to Chase . Just have not seen any documentation from them from Providian to Wamu so this may be a key to win??

 

How can they prove a balance , or chargs or anything from the start of the acct to the secondary??

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Have you already sent them a nice letter CMRR advising them how surprised you are that you have not yet received their response to your discovery requests? A letter and a quick phone call to document you attempted, in good faith, to get their compliance prior to bothering the court with a MTC.

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Have you already sent them a nice letter CMRR advising them how surprised you are that you have not yet received their response to your discovery requests? A letter and a quick phone call to document you attempted, in good faith, to get their compliance prior to bothering the court with a MTC.

I would not do this for two reasons.  One, they would not do it for you and two, the longer you wait, the longer they have to respond (the 10 days on the RFAs begins on the day they were served with your 'reminder'.  If you mail it, they get 15 days from the day you mail it).  Since they have served you with a MSJ, time is of the essence.

 

By the way, you should include in your opposition to their MSJ that discovery is outstanding (explain you have served them with discovery requests and when, etc and they have not responded) and the court should deny their MSJ on these grounds alone.

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Two schools of thought represented here on whether you should or should not. However, if you do, anything and everything you do should be by USPS CMRR. I would not advocate going to their office. I would look into what Harry stated as he is most likely more of an authority on Arizona law than myself. Anything I state is what I would personally do if I found myself again sued in Ohio. I would do the reminder if and only if I was going to do a MTC. If you are only going to oppose the MSJ, then there is no need to remind on discovery. You can just mention their non-response as Harry suggested.

 

My thinking is that past the MSJ, I am still going to want discovery answered. Granted in many instances, the MSJ is their last stand.

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I am really torn on this. Here is my reasoning. I can use the fact they did not answer my questions to help in the MSJ.  Howver my RFA are really good. But will they answer them?  In Az some people have had the MSJ granted before the 30 days are up.  So if I send the letter and then wait the 15 days, and then file the MTC, as well as the MOSJ will this help me.  That is my dilemma. And I agree I know to send everything CMRRR That was me thinking I'm in a time crunch. I am wondering if sending the reminder will work against me with the MOSJ??/

Thanks for the thoughts on both sides!

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I am really torn on this. Here is my reasoning. I can use the fact they did not answer my questions to help in the MSJ.  Howver my RFA are really good. But will they answer them?  In Az some people have had the MSJ granted before the 30 days are up.  So if I send the letter and then wait the 15 days, and then file the MTC, as well as the MOSJ will this help me.  That is my dilemma. And I agree I know to send everything CMRRR That was me thinking I'm in a time crunch. I am wondering if sending the reminder will work against me with the MOSJ??/

Thanks for the thoughts on both sides!

 

I think I would send them the Rule 126(c ) 'reminder' ASAP, a Motion to Compel the other discovery requests, file a notice of service of the reminder with the court, and simultaneously file your Objection to their MSJ.

 

 

Anotherquestion. Can I file a motion to have the RFA's admitted if they don't sent them or is that after a MTC?????

You cannot file a Motion to have the RFA's admitted until first you serve the Rule 126(c ) reminder on them and wait the 10 days permitted by the reminder (15 days if you mail it).  If they don't respond after the 10 (15) days, then you can file a motion to have them admitted.

 

This is why I keep saying that getting these things done ASAP is important.  The longer you wait, the closer you get to the MSJ response deadline.  If you do not have it on record that Plaintiff filed a MSJ prior to responding to your requests, an appeals court will probably not see the grant of an MSJ under these circumstances as reversible error because you failed to notify the trial that there were outstanding discovery requests.

 

Because of the tight window of time here and the conglomeration of things up in the air (namely your outstanding discovery requests), I would file a Motion for Enlargement of Time to ask the court for another 45 days to complete discovery before ruling on the pending MSJ.  File the MET along with your other motions and notices.  If the court ignores or denies your MET, at least you will have an Opposition to their MSJ on record drawing attention to the Plaintiff's failure to respond to discovery requests.

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I will file the reminder tommorrow and mail a notice of service to the court. And a MTC to the court as well. I am no way ready with a MOSJ and that still gives me two weeks before it is due for them to send the Rogs. I don't see a MET being anything I would get as discovery can last until a month before trial.  I have never heard of a motion for enlargement of time.

Is this new??

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I will file the reminder tommorrow and mail a notice of service to the court. And a MTC to the court as well. I am no way ready with a MOSJ and that still gives me two weeks before it is due for them to send the Rogs. I don't see a MET being anything I would get as discovery can last until a month before trial.  I have never heard of a motion for enlargement of time.

Is this new??

 

Ok, so file everything except your Objection to MSJ.

 

The MET is not to give more time for discovery.  It's to extend the amount of time before the judge rules on Plaintiff's MSJ so that you can pursue your outstanding discovery requests.  If you file it, in the part of the pleading where you state the title (Motion for Enlargement of Time), under that, type "Expedited Relief Requested" and make sure you point this out to the clerk when you file it.  He/she might get pissy about it, but you have the right to ask for this.  Just be polite about about it.

 

 

METs are not new.  They are not a part of the JCRCP, but are in the ARCP:

 

 

Rule 6(b ). Enlargement

 

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b ), 52(b ), 59(d), (g) and (l), and 60©, except to the extent and under the conditions stated in them, unless the court finds (a) that a party entitled to notice of the entry of judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and (b ) that no party would be prejudiced, in which case the court may, upon motion filed within thirty days after the expiration of the period originally prescribed or within 7 days of receipt of such notice, whichever is earlier, extend the time for taking such action for a period of 10 days from the date of entry of the order extending the time for taking such action.

 

 

I think outstanding discovery requests are sufficient "cause" for the court to grant a MET, but it's within the court's discretion and by no means mandatory.  It's important to view what you're doing from the perspective of building your record for appeal should you need to use it.  A MET unambiguously establishes that you served discovery requests on Plaintiff, and, before responding to those requests that would allow you to properly respond to their MSJ and give the court a more clear picture of Plaintiff's claims, Plaintiff prematurely filed a MSJ.  You can adequately establish these things in your Objection to their MSJ, but you also want the extra time to tie up the loose discovery ends that a MET would provide if granted.

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Ok, Thanks for explaining that. I will post the MSJ. They acually filed it the day the ROGS were due. Hopefully , that will help the MOSJ.

Thanks for the help!

Yeah, they are obviously trying to get the court to grant their MSJ without having to answer your discovery requests.

 

Just an FYI, although courts usually wait at least 30 days to rule, the court can rule on their MSJ without waiting for a response from you, so it's important you get something on the record ASAP that you served timely discovery requests and Plaintiff failed to respond to them within the time permitted, and instead filed a Motion for Summary Judgment.

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I note its for breach of contract not account stated.  It has been awhile since researched this but think they need to produce an original contract SIGNED by you?

 

I would forget the jurisdiction argument its Arizona - but the old 3 year rule should apply. 

 

Plus easy attack on accuracy of computer records especially since well known how bad Chase was in credit card record keeping.

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Hi  Bumping for a little help here. TY!!  Should I change the name of my post?

I'm in Utah. ALL credit agreements have to comply with the Statute Of Frauds (sof) or they are "void" and unenforeable. It sets very specific standards that the Plaintiffs (oc to single/multiple assignees) are unable to compy with.Google Northstar Capital vs. Haring ,  It will be your "Could'a had a V-8" moment. It's the smoking gun to ensure mod or response to msj.

 

Two key points: there has to be in evidence a valid signed credit agreement  OR a valid un-signed one that you received before or at the time you accessed the credit. sof requires specific, actual physical documents/evidence to be before the court to even "maintain an action" or it's a prima facie violation of it. Keep it simple, and on point. 

Here's how I see what's actually going on in JDB world:

1. Complaint listing JDB as Plaintiff served upon you.

2. At this point, the actual "owner" of the debt either has the goods on you and standing to sue (see SOF) or does not.

3. If number 2 is prima facie in the Complaint, and there are no other legal affirmative defences, you owe on an enforeable credit agreement. Next to impossible, though, for a JDB to prove it's the owner of a valid credit agreement debt.

4. Since oc did not send out  a 1099-C income statement to you after your account was written off as a "bad debt", the oc establishes that the account had the legal effect of being a "gift"...not enforceable by anyone against anyone.

5. OC's reduce all of these "write-offs" to "final field data" (usually destroying all SOF evidence, if there even was any...remember "gift" status!).

6. Final Field Data (ffd) is nothing more than cyber information input onto a pool or data base and becomes part of its irs record for tax purposes. jdb think they smell financial, collectible, receiveable  blood in the water and negotiate valid assignment of rights to these ffd entries via purchase agreements/bill of sell, etc. All good. But what was actually "assigned" to the jdb? 

7. ffd are cyber entries that normally reveal someone's: name, address, ss#, credit date, credit balance, date of last pymt, and credit account number. That's it!

8. jdb, like Midland Funding, have another credit collection company, Midland Credit Management, print off the individual ffd page. From there, it inputs the ffd into its company form statement. Then they produce from it an intimidating-looking "NOTICE OF NEW OWNERSHIP AND PRE-LEGAL REVIEW" document that has ffd and oc, MCM new account number and pymt due date.

9.  Remember, so far no prima facie compliance with the sof. In fact, the evidence is getting farther and farther away from meeting that governing standard!

10. jdb now hires a mal particing firm to consolidate all of this "inadmissable hearsay" into an elaborate, confusing, legal-looking law suit that's actually a frivoulus one and a violation of Bar ethics, FTC, and compells MOD and Attorney General to investigate.

11. So, who is the actual owner of SOF-approved evidence with standing to sue? In most cases, no one! And "no one" can sue or "assign" a right to sue to an alleged legal assignee! Completely frivolous law suit! And the attorney knows it! So should your Attorney General and the Bar. 

 

Please contact for samples or copies at yahooformylegalfile@gmail.com    Thx, Dean

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Thank you for all the good info. In their amended disclosure they sent some billing statements from wamu and chase. A new affadvits from MCM verifiying Midlands files. In DV they sent  a Providian card agreemetn from 2001.

I guess I am wondering how they intend to validate any balance from 2001 with no knowlege of anything from Providian to Wamu.

 

Also in my MOSJ should I bring up the 3 year SOL of the agreement they sent me?? Or just let that go And I should look for any case law showing they cannot show any balance from 2001.

 

Or am I missing your point? I asked for the signed agreement in RFP. They filed a MSJ instead of answering my RFA.

I sent a second notice to them and court yesterday.

Harry said to file a MTC, but in the reminder letter it deems everything admitted if they don't send it, so is that still needed. Or just move on with the MOSJ?

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Yes, but is the JDB suing only under breach of contract or are they also suing under account stated? The Statute of Frauds varies from state to state and how it is enforced. I read several motions to dismiss referencing the Ohio Statute of Frauds when I was researching my own action and recall that none of them were well taken based on the arguments given.

 

Breach of contract would involve the statute of frauds because the agreement that was allegedly signed by the debtor is the contract. However, once they sue on account stated, they are attaching their lame photocopied, probably invalid computer generated, statements as the account stated. This survives the motion for dismissal and it would be up to arguments in a MSJ, opposition to same, or trial to fight the assignment, etc.

 

In Ohio reference the account stated, Brown v. Columbus Stamping & Manufacturing Company 1962, states:

 

"An account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due. Id at 125, 38 Ohio Op. 2d at 145, 223 N.E.2nd at 35."

 

I did a motion for more definite statement thinking, because the JDB could not possibly do this with their incomplete records, that my case would be dismissed because all they attached was a JDB generated statement on their own letterhead that had none of the above. Just an amount due. The case was dismissed after they did not file an amended complaint.

 

However, two months later, they filed an amended complaint attaching an alleged monthly statement from the OC... But even that, which admittedly still wouldn't hold on a breach of contract claim due to no agreement attached, was enough in the trial courts eyes to meet the initial requirements of an account stated despite it not meeting the Brown v. Columbus Stamping case law at all. I know this because I filed motion for more definite statement in the second action as well and it was not well taken. 

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The initial complaint says that hereto and prior to the filing of this action defendants did, for valuable consideration entere into a contract with Plaintiff's assignor .There is no mention of a BOC in the complaint.

 

They filed an amended Disclosure statement

Facual basis for each claim/defense.

The Defendants entered into a cc agreement with Plaintiff's assignor MF.

 

Law and theory being Plaintiff's assignor and dfendants entered into a contract. Defendant's breched the contract by failure to pay as agreed.

Doc's they are claiming to us to support their claim:

affadavit of balance owed

providian cc agreement

bill of sale

e-record of account pursuant to BOS

statements

pre-legal notification.    That's all they have

 

As in Harry's case they sent prelegal notices with around 3000 of interest tacked on with themselves listed as the current owner of the acct.

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@InProSe

 

Since you're in Utah, it would helpful if you would start your own thread so that members won't be confused due to different state laws.

 

 

4. Since oc did not send out  a 1099-C income statement to you after your account was written off as a "bad debt", the oc establishes that the account had the legal effect of being a "gift"...not enforceable by anyone against anyone.

5. OC's reduce all of these "write-offs" to "final field data" (usually destroying all SOF evidence, if there even was any...remember "gift" status!).

 

 

What statute or court precedent supports the above?  Please address this in your new thread.

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