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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.

 

@BTO429,

 

This Promissory Note is a Consumer Paper, not Commercial.

 

It included this Provision known as "FTC Holder Rule":

 

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.

 

http://www.ftc.gov/news-events/press-releases/2012/05/ftc-opinion-letter-affirms-consumers-rights-under-holder-rule

 

http://www.law.cornell.edu/cfr/text/16/433.2

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In your 5 min - prioritze the reasons why your counter shouldn't be dismissed.

 

 

 

 

If there's time - you might considier filing an MTD to dismiss on the SOL. Cite ARS 12-506A. 

 

1. Yes, I'm preparing such three-liner.

 

2. The Contract with SLM was made in in October 2001 in Florida.

I left FL and moved to AZ at the end of December 2001, and never was back in FL after that.

So, the FL SOL 5 years ( paragraph of FL Statutes 95.11) is tolled (paragraph 95.051) for the time of my absence in that state.

 

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0095/Sections/0095.051.html

 

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0095/Sections/0095.11.html

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I see that...I would think about an MTD to dismiss because an AZ judge is not qualified to rule on a FL contract. This was an argument I raised when LVNV sued me in AZ for a debt incurred in CA. They used a *very* similar argument to what SLM's attorneys are using now. 

 

 

Maybe this is something best explored in Federal... that's what I ended up doing. 

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I have some news from my adversaries.

 

Yesterday I've received:

 

1) "Notice of Appearance/Substitution of Counsel" that just produces BHLM (Blatt, Hasenmiller, Leibsker & Moore)

address in Phoenix without mentioning "my" Original SLM's Attorney's name.

 

2) "Plaintiff's Motion to Appear Telephonically" on Oral Argument (that must last only 15 minutes)

scheduled for 01/09/2014. 

 

This Motion says, that "my" Original SLM's Attorney

 

"...resigned from BHLM before the Notice of Oral Argument was received.

The duties required at Oral Argument and the Motion [Plaintiff's MTD to dismiss my Counterclaim] that is to be argued exceed 

the capabilities of Plaintiff's step up counsel.

 

Therefore, Plaintiff is requesting permission for firm's IL Attorney (her name is stated), who is duly licensed to practice in AZ,

to be allowed to appear telephonically on Plaintiff's behalf due to the fact she resides and works in IL.

 

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

 

.... should Plaintiff be required to personally appear, Plaintiff respectfully withdraws its Motion to Dismiss Counterclaim 

and requests this matter to proceed to the trial as currently scheduled om March XX, 2014."

 

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

 

I checked "my" new SLM/BHLM attorney's credentials in AZBAR.ORG.

 

She is residing in Chicago.

 

Her AZ Bar Status: Active (admitted to the State Bar of Arizona June XX, 2013).

Board Certified Specialization: None
Areas of Focus: None ("My" former attorney was focused on Bankruptcy/Receivership)
Section Membership: None (for 
"my" former attorney it was Bankruptcy Law)
Other Jurisdictions: Illinois
Other Languages: None
Professional Liability Insurance: Yes
Discipline: None

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Then make a motion to oppose her appearing by phone...get them to drop the opposition to the counterclaim.

 

 

My guess is they are starting to grow weary of pursuing the case. They thought it'd be a slam dunk default...

 

Your guess is the same as mine :-)

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@BTO429,

 

This Promissory Note is a Consumer Paper, not Commercial.

 

It included this Provision known as "FTC Holder Rule":

 

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.

 

http://www.ftc.gov/news-events/press-releases/2012/05/ftc-opinion-letter-affirms-consumers-rights-under-holder-rule

 

http://www.law.cornell.edu/cfr/text/16/433.2

Like I said just because they hold the note in their hand does not mean they are the legal holders of the note. There has to be a chain of title on the note, all assigments that prove they are the holder in due course needs to be established.

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I have some news from my adversaries.

 

Yesterday I've received:

 

1) "Notice of Appearance/Substitution of Counsel" that just produces BHLM (Blatt, Hasenmiller, Leibsker & Moore)

address in Phoenix without mentioning "my" Original SLM's Attorney's name.

 

2) "Plaintiff's Motion to Appear Telephonically" on Oral Argument (that must last only 15 minutes)

scheduled for 01/09/2014. 

 

This Motion says, that "my" Original SLM's Attorney

 

"...resigned from BHLM before the Notice of Oral Argument was received.

The duties required at Oral Argument and the Motion [Plaintiff's MTD to dismiss my Counterclaim] that is to be argued exceed 

the capabilities of Plaintiff's step up counsel.

 

Therefore, Plaintiff is requesting permission for firm's IL Attorney (her name is stated), who is duly licensed to practice in AZ,

to be allowed to appear telephonically on Plaintiff's behalf due to the fact she resides and works in IL.

 

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

 

.... should Plaintiff be required to personally appear, Plaintiff respectfully withdraws its Motion to Dismiss Counterclaim 

and requests this matter to proceed to the trial as currently scheduled om March XX, 2014."

 

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

 

I checked "my" new SLM/BHLM attorney's credentials in AZBAR.ORG.

 

She is residing in Chicago.

 

Her AZ Bar Status: Active (admitted to the State Bar of Arizona June XX, 2013).

Board Certified Specialization: None

Areas of Focus: None ("My" former attorney was focused on Bankruptcy/Receivership)

Section Membership: None (for "my" former attorney it was Bankruptcy Law)

Other Jurisdictions: Illinois

Other Languages: None

Professional Liability Insurance: Yes

Discipline: None

the good thing about this is she is a new attorney, maybe not all that accustomed to the rtp's and lacks experience.

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@BTO429,

 

This Promissory Note is a Consumer Paper, not Commercial.

 

It included this Provision known as "FTC Holder Rule":

 

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.

 

http://www.ftc.gov/news-events/press-releases/2012/05/ftc-opinion-letter-affirms-consumers-rights-under-holder-rule

 

http://www.law.cornell.edu/cfr/text/16/433.2

it seems as though it is consumer,,,but once they securitize it, is it really consumer.....securities are the traditional wat for commercial enterprises to raise new capital.

I pose this question, if consumer mortgages, and student loans that get securtized, since securities are commercial transactions, are they not telling us they are commercial instruments? Just some food for thought. I have never researched this, but it sounds like a good endeavor.

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@GDayMateAZ

 

Therefore, Plaintiff is requesting permission for firm's IL Attorney (her name is stated), who is duly licensed to practice in AZ,

to be allowed to appear telephonically on Plaintiff's behalf due to the fact she resides and works in IL.

 

 

That is a request for the attorney to appear by telephone.  It doesn't say that there's a witness who will testify.

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By telephone does not mean actually on the phone in some courts. Te practice of video conferencing is being used more and more. I can also tell you from experience that the SSI courts use telephone appearance all the time for their special witnesses.

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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.

 

@BTO429,

 

"My" Note does not say anything about its connection with any SLM Student Loan Trust,

while such Trust exists.

 

You can check out the most recent Prospectus of SLM SL Trust link :

 

https://www.salliemae.com/assets/about/investors/debtasset/SLM-Loan-Trusts/Prospectus/SLM2013-6PreliminaryProspectus-as-printed.pdf

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Don't underestimate the new lawyer - check her on the IL Bar's website to get an idea of how long she's been practicing.

 

IL Bar website does not provide any info except of her licensing with IL since 2007.

 

However, her LinkedIn profile says:

 

"Specialized in the representation of banks and financial institutions

where compliance is at issue and the creditor’s rights are challenged pursuant

to federal and state statutes such as the FDCPA, TCPA, FCBA and the Illinois Collection Agency Act.

Representation of insurance companies in subrogation matters.

Responsible for cases from inception through trial and/or mediation and arbitration proceedings.

Prepare, draft and argue pretrial and discovery motions, including motions for summary judgment,

motions to compel and motions in limine in both federal and state courts.

Propound and answer discovery.

Take and defend discovery depositions.

Put on bench and jury trials in both municipal and law division courts.

Research and draft informative briefs, memoranda and standard operating procedures for clients and internal compliance."

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If she does appear by phone you have the right to cross examine and impeach her as a witness

 

@BTO249,

 

Attorneys cannot be called to testify and thus cannot be cross examined and/or impeached,

while Pro Se defendants can be called to testify (without rights to invoke 5th Amendment).

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So we have an approximate date of 2007... ok, so she's got experience. 

 

 

It looks like she's basically in to oppose the counter and not to take the case to trial. I'd file a motion to oppose the telephonic appearance. See how that goes over.

 

 

 

 

If you want to be a real treasure, subpoena her bar admission packet. Usually that will cause lawyers to flip out pretty fast.  

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So we have an approximate date of 2007... ok, so she's got experience. 

 

It looks like she's basically in to oppose the counter and not to take the case to trial. I'd file a motion to oppose the telephonic appearance. See how that goes over.

 

If you want to be a real treasure, subpoena her bar admission packet. Usually that will cause lawyers to flip out pretty fast.  

 

@1stStep,

 

"My" Judge would hate me to request that lady to fly from Chicago to Phoenix only for 15 minutes Oral Argument.

 

Your second suggestion: do you know any PRO SE guy/gal who made such things ?

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By telephone does not mean actually on the phone in some courts. Te practice of video conferencing is being used more and more. I can also tell you from experience that the SSI courts use telephone appearance all the time for their special witnesses.

 

@BTO429,

 

In my response to the Plaintiff's Telephonic Motion, I'm requesting the Court to provide me (I have lifelong hearing loss)

with such reasonable accommodation, as  Communications Access Real-time Translation (CART) device.

 

If the Court provides me with such CART device, I would have no objections against her telephonic appearance on the 15 minutes Oral Argument.

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@GDayMateAZ

 

 

That is a request for the attorney to appear by telephone.  It doesn't say that there's a witness who will testify.

 

@BV80,

 

Of course, she is Chicago based and AZ licensed attorney.

 

AZ Bar does not require AZ licensed attorneys to reside permanently in our state. 

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Preparing for my Oral Argument on SLM 12( b )(6) Motion to Dismiss my Counterclaim,

I found this opinion in SIMKUS v. CAVALRY PORTFOLIO SERVICES, LLC, No. 11-cv-7425 (N.D. Ill. May 22, 2012):

 

"A motion to dismiss under Federal Rule of Civil Procedure 12( b ) (6)
is meant to test the sufficiency of the complaint, not to decide the merits of the case.
Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990)."

 

Should I expect that AZ Courts are in agreement with this pre-Iqbal-Twombley statement ?

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Arizona still follows to

 

Cullen v. Auto-Owners Ins. Co., 189 P.3d 344, 218 Ariz. 417 (2008)

 

"If a pleading does not comply with Rule 8, an opposing party may move to dismiss the action for "[f]ailure to state a claim upon which relief can be granted." Ariz. R. Civ. P. 12( b )(6). When adjudicating a Rule 12( b )(6) motion to dismiss, Arizona courts look only to the pleading itself and consider the well-pled factual allegations contained therein. See, e.g., Dressler v. Morrison, 212 Ariz. 279, 281 ¶ 11, 130 P.3d 978, 980 (2006); Long v. Ariz. Portland Cement Co., 89 Ariz. 366, 367-68, 362 P.2d 741, 742 (1961). Courts must also assume the truth of the well-pled factual allegations and indulge all reasonable inferences therefrom. Doe ex rel. Doe v. State, 200 Ariz. 174, 175 ¶ 2, 24 P.3d 1269, 1270 (2001); Long, 89 Ariz. at 367, 362 P.2d at 742. Because Arizona courts evaluate a complaint's well-pled facts, mere conclusory statements are insufficient to state a claim upon which relief can be granted. The inclusion of conclusory statements does not invalidate a complaint, Long, 89 Ariz. at 369, 362 P.2d at 743, but a complaint that states only legal conclusions, without any supporting factual allegations, does not satisfy Arizona's notice pleading standard under Rule 8."

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