Sallie Mae vs Me in Arizona - 2013

[GDayMateAZ]

1. Who is the named plaintiff in the suit?

 SLM Education Credit (special subsidiary without executives that Sallie Mae uses as a Plaintiff)

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Blatt, Hasenmiller, Leibsker & Moore (BHLM) in Phoenix

 

3. How much are you being sued for?

$8K

 

4. Who is the original creditor?

Sallie Mae

 

5. How do you know you are being sued? (You were served, right?)

Found this the next day after they filed this Complaint - on the Justice Courts Website

Was served 9 days later.

 

6. How were you served? (Mail, In person, Notice on door)
 In Person

 

7. Was the service legal as required by your state?
Yes

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
They sent their dunning letters twice (August 2012 and February 2013)
Both times responded them with DV Request.

The second time they sent me the copies of original papers with my signatures.

 

9. What state and county do you live in?
 Arizona, Maricopa

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
October 2007, Charged Off in June 2008.

The same month they accelerated the Whole Balance Due option

( using Zwicker and Assoc and Arrow Financial Services, Arrow is SLM's collection subsidiary).

I lost all their dunning letters of 2008-2010.

 

11. What is the SOL on the debt? 
ARS 47-2725 - 4 years
Statute of Limitations in Contracts for Sale,

thanks to FTC Holder Rule Provision in this Contract (see below).

 

Update 02/04/2015:

It was not ARS 47-2725 - it was ARS 12-544(3) - Four Year "...upon an instrument in writing executed without the state."

 

12. What is the status of your case?
Filed MTD for the Failure to State Valid Claim and as Time Barred under ARS 12-544(3) (the contract was signed in Florida).
The MTD was denied.
Today (10/02/13) filed my Answer and Counterclaim

 

===================================================================================

 

Update - 01/28/2015:

 

I won my Appeal in Maricopa Superior Court - the Trial Judge erred ignoring my AZ SOL 4 years ARS 12-544(3) defense
"upon an instrument in writing executed without the state."

 

==========================================================================

 

Update - 02/06/2015:

 

Received in mail the official Justice Court Order (02/02/2015) on three pages:

1) Vacating its previous Judgment for SLM (04/04/2014) and awarding me $140.00 in Court Costs (JC only)
and releasing my Appeal Cost Bond $250.00 (by Chase Bank);

 

2) Quashing SLM's Writ of Garnishment and requiring
Garnishee (my former Employee) and SLM return me any garnished money (total $757.45 was not specified there);

 

3) Superior Court Appeal Filing Fee $304.00 is not addressed there.

Edited February 6, 2015 by GDayMateAZ

[GDayMateAZ]

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
 No

 

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
 Yes, twice (August 2012 and February 2013)

 

15. How long do you have to respond to the suit?
Responded today, 15 days after my MTD was denied.

We need to know what the "charges" are.

 

$8K Balance Due for unpaid private unguaranteed student loan (original amount $6K under 16% spread over 15 years - total about $16K).

Did you receive an interrogatory (questionnaire) regarding the lawsuit?
Not yet.

 

16. What evidence did they send with the summons?
Signed Repayment Schedule and TILA Disclosure
Signed "Web Application" with my Employer Name "SELF" while I was Unemployed that time.
This "SELF" is distinctively misaligned comparing with all Applicant's info.
I'm claiming back Forgery and Fraud.

 

An affidavit?
Yes - Usual BS.

 

Statements from the OC?
None

 

Contract?
BHLM sent me it in February 2013.

 

List anything else they attached as exhibits.
Nothing else.

They did not attached the Contract this time.
This Contract contains FTC Holder Rule Provision
( 16 CFR 433.2 - Preservation of consumers' claims and defenses, unfair or deceptive acts or practices)
http://www.law.cornell.edu/cfr/text/16/433.2

 

"Preservation of consumers' claims and defenses, unfair or deceptive acts or practices.

 In connection with any sale or lease of goods or services to consumers, in or affecting commerce as “commerce” is defined in the Federal Trade Commission Act, it is an unfair or deceptive act or practice within the meaning of section 5 of that Act for a seller, directly or indirectly, to:

(a)   Take or receive a consumer credit contract which fails to contain the following provision in at least ten point, bold face, type:

 

NOTICE
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER."

 

It means that Sallie Mae is not the Holder in Due Course (see ARS 47-3302(G))

and so, I can claim against them same things

that I could against the Career Training School that is no longer in business.

[GDayMateAZ]

10/02/2013 - Filed with the Court (and sent to the Plaintiff) my Answer and Counterclaim.

The same day found (on the Courts website) that Pre-Trial is scheduled at the beginning of December and the following Trial to the end of March 2014.

 

======================================================================

 

Updated 11/11/2014:

 

                               COMPLAINT

 

Plaintiff, SLM Education Credit, for its complaint against Defendant, alleges as follows:

 

1. Upon information and belief, Defendant(s) is/are the residents of the XXXXX precinct of the Maricopa County Justice Court, Arizona. This honorable court has jurisdiction over the matters contained herein pursuant to A.R.S. §22-201 and venue is proper pursuant to A.R.S. §22-202.

 

2. Plaintiff is the owner of Defendant'(s) account and pursuant to Rule 17(a) of the Arizona Rules of Civil Procedure, Plaintiff is the real party in interest.

 

3. Defendants, GDayMateAZ and Jane Doe, upon information and belief, are or were husband and wife at all times during the events giving rise to this action. Defendant(s), upon information and belief, at all times acted for the benefit of the marital community.

 

4.               On or about 10/15/2001, Defendant(s), GDayMateAZ, executed and delivered a Promissory Note (hereinafter referred to as the "Note") whereby the Defendant(s) promised to make monthly payments as specified in the Note. A copy of the Note is attached hereto as Exhibit "1" and incorporated herein by this reference.

 

4. That Defendant(s) were advanced the proceeds of the loan which were to be
used for educational purposes.

 

5. Allowing for all just credits and setoffs, the balance due on the Note is $7871.13

 

6. The Plaintiff declared the Defendant(s) to be in default and demands payment of the balance due on the Note. Defendant(s) have refused said demand.

 

7. Pursuant to the language of the Note, Plaintiff is entitled to recover reasonable attorneys' fees should the Defendant(s) default in this matter, or as actually incurred herein, as provided for by A.R.S. §§ 12-341 and 12-341.01.

 

WHEREFORE, Plaintiff, SLM Education Credit, respectfully requests this Court enter judgment against Defendant(s) in the amount of $7871.13, plus court costs, attorney fees, and post-judgment interest on the principal and costs at the legal rate as allowed by law from the date of judgment. Plaintiff requests this court enter any and all further relief it deems appropriate under the circumstances

 

=======================================================================

 

STATE OF INDIANA

 

COUNTY OF HAMILTON

 

Plaintiff, SLM EDUCATION CREDIT
v.
Defendant, GDayMateAZ, Note # XXXXXXXXXX0101

 

AFFIDAVIT OF DEBT

 

I, Mary Kay Mauer, being of full age, hereby certify as follows:

 

1. I am more than 19 years of age and am competent to make this affidavit.

 

2. I am employed by Sallie Mae, inc., as a Litigation Assistant. I am authorized to make this affidavit on behalf of Sallie Mae Inc. as administrator and agent for SLM EDUCATION CREDIT.

 

3. I am familiar with the facts and circumstances in connection with this account and have been authorized to make this affidavit in the above referenced case.

 

4. In the ordinary course of business and as a regular business practice, Sallie Mae, as administrator and agent for SLM EDUCATION CREDIT compiles business records memorializing account activity and transactions at or near the time they occur.

 

5. Entries in the files and business books and records of Sallie Mae, as Administrator and Agent for SLM EDUCATION CREDIT are made contemporaneously with transactions in order to preserve the accuracy of the transaction.

 

6. Account information and business records regarding Plaintiff's accounts are maintained by, Sallie Mae, as administrator and agent for SLM EDUCATION CREDIT.

 

7. I have custody and control of the files and business records relating to this account

 

8. There remains an outstanding balance due Plaintiff from Defendant in the amount of $ 6560.09 plus interest of $1311.04 calculated through 01-11-13 for a total balance due and owing of $7871.13.

 

9.                 The documents attached to this affidavit, if any, are true and accurate copies of business records regarding the Defendant's account.

 

10.                 Based upon the account information that I reviewed, the Defendant is not an infant or incompetent person. I have input the Defendant's name in the Manpower Department of Defense database and based upon the review, the Defendant is not on active duty with the Armed Forces of the United States of America or its allies.

 

Mary Kay Mauer, Sallie Mae, as administrator and agent for SLM EDUCATION CREDIT

IN WITNESS WHEREOF I have hereunto subscribed my name and affixed my official seal on January 28, 2013.

Notary Public
Kimberly L Peace
My Commission Expires: June 18, 2018
Within and for the County of Hancock
and State of Indiana

Edited November 11, 2014 by GDayMateAZ

[GDayMateAZ]

10/05/2013 - Received from the Court "ICMO" - Initial Case Management Order

"... The Court hereby sets the following pretrial deadlines respecting mandatory disclosure,

completion of discovery and filing of dispositive motions.

The deadlines will be strictly enforced ...

............................

The ICMO is ending with this Notice:

"Your case is now placed on the Inactive Calendar and will expire and be dismissed on 08/02/2014"

[GDayMateAZ]

The last week, the Plaintiff's Attorney filed two Motions for Telephonic Appearance of: himself at the Pre-Trial (while his Law Office is located within 30 minutes of freeways driving from the Court building) and unnamed Witness at the Trial (who otherwise would have an economic hardship).

 

I've filed my opposition to both Motions (10/20/13).

Edited October 26, 2013 by GDayMateAZ

[GDayMateAZ]

Plaintiff's Attorney filed a new Motion to dismiss my Counterclaim for Failure to State a Valid Claim (e.g., for failure to assert any cognizable counterclaim within AZ 3 years statute limitations for fraud ARS 12-543).

 

I think, he is right.

 

I'm finishing my Response with incorporated more "cognizable" Counterclaims:

 

5. In July-August 2013, during preparation to filing this Complaint, the Plaintiff failed to exercise any due diligence or just ordinary care neglecting to review and timely detect strikingly odd irregularities in all three documents (the Plaintiff’s “Exhibit 1”) made in 2001 and upon which the Plaintiff’s Complaint is based.

 

6. Such gross negligence of Plaintiff subsequently caused the filing of frivolous, abusive and malicious litigation (in anticipation to get an easy Default or Summary Judgment)  with this Court on August 01, 2013 in violation of JCRCP Rules 109( c ), 141( c )(3) and 138(a)(1).
 
7. Both Defendants are damaged thereby due to necessity to pay the Court Fee $65.00 for  original filing their Answer and spending on their legal self-defense in average 4 hours (for each Defendant) daily beginning from August 10, 2013 (when they were served with the Plaintiff’s Summons and Complaint) and due to the emotional distress that this Action of Plaintiff caused to the whole family (both Defendants and their two children).   

 

8. The necessity of the legal self-defense is keeping Defendants preoccupied during their work hours and is jeopardizing their jobs.

9. The Defendants estimate the cost of each hour spent for their legal self-defense as $7.80 per hour according to the current Arizona Minimum Hourly Wage.

 

10. Between 08/10/2013 and 10/28/2013, both Defendants together spent on this frivolous litigation 632 hours of their personal time (August – 168 hours, September – 240 hours, October - 224 hours). The total cost is $4,929.60 (as of 10/28/2013).

 

11. The Defendants respectfully request this Honorable Court to enter Judgment for Defendants and against the Plaintiff and to decide that Plaintiff pays to both Defendants the monetary compensation $4,929.60 (as of 10/28/2013) with applicable interest along with the Court Cost, and with any other relief as the Court deems just and proper.

 

BTW: AZ Justice Courts can award up $10K and + Court/Attorney Costs.

 

What do you guys/gals think about my cognizable counterclaims ?

[1stStep]

It's worth a shot - if anything, I believe you may have just created a trialable issue... 

[GDayMateAZ]

This Estoppel and Recoupment stuff goes in the beginning of my Opposition to the Plaintiff's Motion to dismiss my Counterclaim:

 

5. The Plaintiff is equitably estopped from asserting against Defendants such Affirmative Defense as of Three Year Limitation for Fraud A.R.S. § 12-543(3) in the Action brought by itself and based on the same events and documents of October 2001.

 

6. In the same Action brought by Plaintiff, the Defendants are in their rights to state their Valid  Recoupment Counterclaim for such relief, as declaring the fraudulently obtained Note Void Ab Initio and ordering the Plaintiff repay them back $6,100.00 and also to pay them $4,929.60 for their personal time lost on legal self-defense listed below as Supplemental Counterclaims.

 

7. “…Recoupment is in the nature of a defense arising out of some feature of the transaction upon which the plaintiff's action is grounded. Such a defense is never barred by the statute of limitations so long as the main action itself is timely." Bull v. United States, 295 U.S. 247 –Supreme Court 1935.

 

8. “On the other hand, where the defendants' claim is for recoupment, the statute of limitations is not a bar; it may be availed of defensively so long as the plaintiff's cause of action exists. 1 A.L.R.2d 630, 666-67, Anno: Setoff or Counterclaim-Barred Claim; Bull v. United States, 295 U.S. 247, 262, 55 S.Ct. 695, 700, 79 L.Ed. 1421 (1935); Klemens v. Air Line Pilots a$$'n, Intern., 736 F.2d 491, 501 (9th Cir. 1984). The cases cited emphasize that the claim in recoupment must concern matters arising out of the same transaction that is the basis for the plaintiff's claim for relief.” Vari-Build, Inc. v. City of Reno, 622 F. Supp. 97 - Dist. Court, D. Nevada 1985.

 

9. “Regarding the applicability of statutes of limitations to a demand in the nature of a recoupment, both the Texas and Federal courts follow the general rule that a recoupment, when pled only to defeat plaintiff's claim, is not barred by the statute of limitations so long as the plaintiff's main action itself is timely. The defense of recoupment may be asserted even though the same claim asserted as an independent cause of action would be barred by limitations. United States v. Western Pacific Railway Co., 352 U.S. 59, 62, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Bull v. United States, 295 U.S. 247, 262, 55 S.Ct. 695, 79 L.Ed. 1421 (1935); Morriss-Buick Co. v. Davis, 127 Tex. 41, 91 S.W.2d 313, 314 (1936); 37 Tex.Jur.2d Section 18 (1962); 51 Am.Jur.2d Section 77, p. 656 (1970).”
Garza v. Allied Finance Co., 566 SW 2d 57 - Tex: Court of Civil Appeals, 13th Dist. 1978

 

10. The Defendants assert that their Recoupment Counterclaim must survive and the whole Plaintiff’s Motion to Dismiss based on A.R.S. § 12-543(3)) Affirmative Defense cannot survive.

[GDayMateAZ]

The last week, the Plaintiff's Attorney filed two Motions for Telephonic Appearance of: himself at the Pre-Trial (while his Law Office is located within 30 minutes of freeways driving from the Court building) and unnamed Witness at the Trial (who otherwise would have an economic hardship).

 

I've filed my opposition to both Motions (10/20/13).

 

The Judge denied both Plaintiff's Motions for Telephonic Appearance.

[1stStep]

Nice - I bet the unnamed witness does not show... 

 

I would press them on identifying a witness for the purposes of serving a subpoena. A witness not obeying a subpoena will be bad for their case...

[GDayMateAZ]

M

 

Nice - I bet the unnamed witness does not show... 

 

I would press them on identifying a witness for the purposes of serving a subpoena. A witness not obeying a subpoena will be bad for their case...

 

The witness is a Custodian of SLM business records, one of those who churns robo-signed Affidavits.

 

SLM does not name this witness now because the Trial is scheduled to the end of March 2014, and any named now witness could

quit or be fired by that time .

[GDayMateAZ]

I'm really concerned that never received the Court decision (denial) on these two Plaintiff's Telephonic Motions.

 

The Plaintiff's Attorney "told" me this. 

 

But there is more significant reason to be concerned:

the whole litigation is time-barred under AZ SOL 4Y (actually TWO SOLs 4Y):

ARS 12-544(3) and 47-2725.

 

I raised both in my pleadings timely:

 

1) ARS 12-544(3) and (4)

 

Bond to convey realty; partnership account; account between merchants; judgment or instrument given or made without the state; four year limitation

There shall be commenced and prosecuted within four years after the cause of action accrues, and not afterward, the following actions:

1. For the penalty or for damages on the penal clause of a bond to convey real property.

2. By one partner against his copartner for a settlement of the partnership account, or upon mutual and current accounts concerning the trade of merchandise between merchant and merchant, their factors or agents, and the cause of action shall be considered as having accrued upon a cessation of the dealings in which they were interested together.

3. Upon a judgment or decree of a court rendered without the state, or upon an instrument in writing executed without the state. This paragraph does not apply to a judgment for support, as defined in section 25-500, and to associated costs and attorney fees.

4. An action arising under the provisions of title 47, chapter 2, for breach of any contract of sale, which action shall be governed by section 47-2725, notwithstanding any other provision of this section or of section 12-543 or 12-548.

 

2) ARS 47-2725

 

Statute of limitations in contracts for sale

A. An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.

B. A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

C. Where an action commenced within the time limited by subsection A is so terminated as to leave available a remedy by another action for the same breach such other action may be commenced after the expiration of the time limited and within six months after the termination of the first action unless the termination resulted from voluntary discontinuance or from dismissal for failure or neglect to prosecute.

D. This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before January 1, 1968.

[GDayMateAZ]

11/27/2013 - I did not received any Court's ruling on SLM's MTD to dismiss my Counterclaim and so it's still standing.

 

Couple days ago I contacted with one local consumer debt attorney who confirmed that "my" SLM Case is indeed time-barred

under SOL 4 years ARS 12-544(3) (Contract made in Florida in October 2001 and the last payment was made in January 2008).

and he was surprised that this case is still in judicial proceedings.

 

My Pre-Trial will be the next week.

[GDayMateAZ]

My Pre-Trial is tomorrow.

 

As of today, my Counterclaim with claimed damages $8K (including $2K for FDCPA violation 1692e - filing time-barred lawsuit) is still standing.

[BV80]

@GDayMateAZ

 

Good luck!   Sending good thoughts your way! 

[GDayMateAZ]

Thank you, @BV80

 

I have some concerns how my PRO SE case out of SOL 4Y ARS 12-544(3) is treated by the Court.

 

My MTD for failure to State a valid Claim (time-barred Complaint) was denied by the Judge

in September without explanations.

 

I wanted to quote here (in this post)

some AZ Cases about unfavorable treatment SOL defenses

by AZ Courts BUT COPY and PASTE is disabled in this Editor.

 

So I need to retype

 

The case can be found by Google:

City of Tucson v. Clear Channel Outdoor, AZ Court of Appeal, 2nd Div, Dept A, 2008

 

"Courts [of AZ] disfavor statute of limitations defenses,

preferring instead to resolve litigation in the merits when possible"

 

 

 

 

 

[GDayMateAZ]

My Pre-Trial was Thursday 12/05/13 afternoon and lasted the half of hour.

 

We (my wife and me) met both the Judge Pro Temp (we met him before on Midland-2010 Pre-Trial)

and the actual Plaintiff Attorney (not a "Rent-a-Lawyer" as it was three years ago).

 

The main topic was "Deal or no Deal".

SLM Deal was: $8K goes down $5.6K spread onto 12 or 24 monthly payments.

Our Deal was "Nobody pays anything and no 1099C".

We agreed to disagree and told that to the Judge.

 

The Plaintiff Attorney was visibly upset with our stubbornness and told us

that we missed one-time "easy way" opportunity, and so we are going to go "hard way".

 

There is still no Court ruling on our Counterclaim that we filed together with the "Answer" on 10/02/2013.

[BTO429]

FYI did you know that more and more student loans are being secularized, just like the mortgages that caused the housing crash? Defaulted student loan debt is becoming a real sought after security instrument.

 

Maybe you should ask the Plaintiff to prove who the holder in due course of the note really is. It could be part of a pool just like the mortgages, and it is hard telling who owns the note. Have the presented the actual note and not a copy of it?

[GDayMateAZ]

@BTO429,

 

Yes, I know that SLM actively securitized the whole Private Student Debt.

 

After Derivative Securities Market collapse in 2008, SLM was sued by the group of its investors who claimed

that between 2005 and 2007, SLM significantly relaxed its lending standards reducing minimum FICO Score and so approved its loans to applicants with poor credit who en masse started to default when the 2008 Crisis started.

 

The lawsuit "In Re SLM Corporation Securities Litigation" was filed in US District Court of NY (Southern District of NY)

in 2009. The Case number is 1:08-cv-01029-WHP.

The litigation documents can be found online without PACER.

 

SLM preferred to settle this litigation in the beginning of 2012.

 

See the link:

 

www.inreslmsecuritieslitigation.com

 

 

SLM is the OC, but it is not the Holder in Due Course due to the "FTC Holder Rule"  provision of the Note.

 

All original documentation of 2001 most probably was destroyed a long time ago.

 

They presented only scanned copies of the signed by me Note, TILA Disclosure with Repayment Schedule and falsified "Web Application" where the "Employer Name" is "SELF" while I was unemployed that time.

 

Also, this "Web Application" shows a wrong "Disbursement Date" 10/12/2001 (three days earlier that the Signing Date 10/15/2001) while the money were actually disbursed to the school on 10/17/2001.

 

[1stStep]

So SLM did not answer your counter? If that's the case, I'd go for a default... 

[BTO429]

Sounds to me like a default judgement is in order. Having a copy of the note in a persons hands does not mean they actually own the debt. Maybe if you request them to show a securitization audit to prove who holds the note they will back off.

[GDayMateAZ]

@1stStep and @BTO429,

 

Within required 20 days, SLM responded to my Counterclaim with the Motion to Dismiss for Failure to State a Valid Claim.

This is allowed by AZ JCRCP.

The Judge is still deciding on this Motion.

 

SLM is Original Creditor and the Note Holder, but it is not the Holder Due Course.

[1stStep]

Hopefully you filed a reply motion... 

[BTO429]

An individual who takes a Commercial Paper for value, in Good Faith, with the belief that it is valid, with no knowledge of any defects. Per Blacks law dictionary.

 

You need to study up on how commercial paper works.

 

First look at your note, if it says something similar to  SLC TRUST 2010-1 A then is has been pooled into a trust. You need to find out if the trust even still exists. Sometimes these trusts are disbanded and no longer exist.

[GDayMateAZ]

Hopefully you filed a reply motion... 

@1stStep,

 

Two my last posts (replies to you and @BTO429) disappeared after this site's crash this week.

 

Of course, I replied and the Judge scheduled the Oral Argument on this SLM' s Motion (for 15 minutes) in January.

 

I'm supposed to get 5 minutes for speaking out my arguments.