Jump to content

Sallie Mae vs Me in Arizona - 2013


Recommended Posts

I have a question about FCRCP Rule 9 "Pleading Special Matters":

 

(  b ) Fraud or Mistake; Conditions of Mind.

In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.

Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally."

 

This Rule is not included into current AZ JCRCP.

 

I'm still going to use the Rule 9( b ) on my tomorrow "Oral Argument" regarding SLM's MTD 12( b )(6).

Link to comment
Share on other sites

Oral Argument lasted half hour. The Judge said that I was wrong to use 

 

Bull v. United States, 295 U.S. 247, 55 S. Ct. 695, 79 L. Ed. 1421 (1935)

 

to support my Recoupment Counterclaim.

 

In Bull, Recoupment defense was proper in US Tax Court:

 

"... 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. "

 

"The pleading was sufficient to put in issue the right to recoupment.

The Court of Claims is not bound by any special rules of pleading".

 

There is a case Beach v. Ocwen Fed. Bank, 523 U.S. 410, 118 S. Ct. 1408, 140 L. Ed. 2d 566 (1998)

where such idea of SOL survival of Recoupment defense (for Rescission purposes) was rejected:

 

I was requested to submit (within 20 days) a new brief to support my Recoupment Counterclaim,

using newer cases of law published after 1998.

 

Updated 01/25/2014.

 

The Judge requested to submit by 01/29/2014 a brief (Actually Motion that SLM would have to respond within 10 days) with explanation:

 

1. What legal authority allows me to submit said Equitable Recoupment for Damages as cognizable Compulsory Counterclaim rather than Affirmative Defense ?

 

2. What legal authority allows me to assert that Equitable Recoupment for Damages can survive said Arizona Three Year Statute of Limitations for Fraud and/or Mistake ?

Link to comment
Share on other sites

  • 3 weeks later...

I. Reasons why Equitable Recoupment can be asserted as Compulsory Counterclaim

 

Coplay Cement Co., Inc. v. Willis & Paul Group, 983 F.2d 1435 (7th Cir. 1993):

 

“Even before the term counterclaim was given currency by the promulgation of the Federal Rules of Civil Procedure in 1938, a defendant could seek to reduce its liability by pleading that the plaintiff owed it money. The plea was called recoupment if the plaintiff's debt to the defendant arose out of the same transaction as the defendant's liability to the plaintiff, and setoff if it did not.
So recoupment is the ancestor of the compulsory counterclaim (Fed.R.Civ.P. 15(a))…, and setoff of the permissive counterclaim (Fed.R.Civ.P. 15( b )” (internal quotation marks omitted).

 

ACE HARDWARE CORPORATION v. MARN, INC., No. 06-CV-5335 (N.D. Ill. Sept. 16, 2008):

 

“…a claim for … recoupment …is not an affirmative defense because it does not destroy the plaintiff's right of action. A claim for setoff or recoupment is not technically a defense at all, but must be plead as a counterclaim pursuant to Rule 13” (internal citing and quotations marks omitted).

Link to comment
Share on other sites

II. Reasons why Equitable Recoupment survives Statute of  Limitations.

 

Beach v. Ocwen Fed. Bank, 523 U.S. 410, 118 S. Ct. 1408, 140 L. Ed. 2d 566 (1998):

 

"They [petitioners David and Linda Beach] are, of course, correct that as a general matter a defendant's right to plead recoupment, a defense arising out of some feature of the transaction upon which the plaintiff's action is grounded, ...

[that] survives the expiration of the period provided by a statute of limitation that would otherwise bar the recoupment claim as an independent cause of action."

 

"So long as the plaintiff's action is timely, a defendant may raise a claim in recoupment even if he could no longer bring it independently".

Link to comment
Share on other sites

So basically , with that last case law example, you are playing it any which way the court wants to go with this.....you filed MTD for outside of SOL, and the judge denied...so now, you are using that to form the basis for this.....good deal.  But this could be an issue--you do not know WHY the judge denied your MTD.  You asserted that SOL had expired, and if correct, the plaintiff's action is not timely....in which case, you are not able to bring yours, according to this case law.  But I guess the first thing would be to address their claim anyways.  I like it.....

Link to comment
Share on other sites

So basically , with that last case law example, you are playing it any which way the court wants to go with this.....you filed MTD for outside of SOL, and the judge denied...so now, you are using that to form the basis for this.....good deal.  But this could be an issue--you do not know WHY the judge denied your MTD.  You asserted that SOL had expired, and if correct, the plaintiff's action is not timely....in which case, you are not able to bring yours, according to this case law.  But I guess the first thing would be to address their claim anyways.  I like it.....

 

@kraftykrab,

 

The reason for my original "MTD for outside of SOL" denial without any explanation by the Judge

lies in the general disfavor of AZ Courts to the SOL Defense:

 

City of Tucson v. Clear Channel Outdoor, Inc., 181 P.3d 219, 218 Ariz. 172 (Ct. App. 2008):

 

"However, courts disfavor statute of limitations defenses, preferring instead to resolve litigation on the merits when possible.

See Montaño, 202 Ariz. 544, ¶ 3, 48 P.3d at 496;

see also Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 590, 898 P.2d 964, 968 (1995)." 

 

GUST, ROSENFELD v. Prudential Ins., 898 P.2d 964, 182 Ariz. 586 (1995).

 

The defense of statute of limitations is never favored by the courts, and if there is doubt as to which of two limitations periods should apply, courts generally apply the longer.

Sato, 123 Ariz. at 227, 599 P.2d at 183;

Andersen v. Thude, 42 Ariz. 271, 274, 25 P.2d 272, 273 (1933);

Charles M. Smith, Arizona Practice: Civil Trial Practice § 291 (1986).

Link to comment
Share on other sites

well, at least it should provide a suitable cause for appeal....whether they prefer the merits or not, the law is the law and the appellate courts apply the law, not the evidence.  I also agree that FL SOL does not apply any longer since you are not under FL jurisdiction any longer.  Your current state of residence dictates which state's laws apply unless there is a legally enforceable provision in the original agreement that puts that agreement under the laws of a particular state.

Link to comment
Share on other sites

well, at least it should provide a suitable cause for appeal....whether they prefer the merits or not, the law is the law and the appellate courts apply the law, not the evidence.  I also agree that FL SOL does not apply any longer since you are not under FL jurisdiction any longer.  Your current state of residence dictates which state's laws apply unless there is a legally enforceable provision in the original agreement that puts that agreement under the laws of a particular state.

 

The "Governing Law" provision of this Note

said: " I understand that the Lender is located in the State listed

in the TILA Disclosure and this Note will be entered into in the same State."

 

It was NJ where actual Lender Bank was located.

According to this provision, SLM had a right to sue me in NJ without regard of my current residence.

 

However, they sued me in the AZ Justice Court that had jurisdiction over me.  

Link to comment
Share on other sites

I think that deserves a breach of contract counterclaim - say treble damages over what they allege you owe. 

@1stStep,

 

1) What deserves the new counterclaim ?

 

2) SLM sues me for $8K; the treble damages claim for $24K would not fly in the AZ Justice Court: they reward maximum $10K

(not including court costs and attorney's fee).

Link to comment
Share on other sites

well, at least it should provide a suitable cause for appeal....whether they prefer the merits or not, the law is the law and the appellate courts apply the law, not the evidence.  I also agree that FL SOL does not apply any longer since you are not under FL jurisdiction any longer.  Your current state of residence dictates which state's laws apply unless there is a legally enforceable provision in the original agreement that puts that agreement under the laws of a particular state.

 

@kraftykrab,

 

My MTD SOL was based on the AZ SOL 4 years: ARS 12-544(3) and 47-2725.

 

ARS 12-544(3) for instruments in writing was applied only once in 1939:

 

Acacia Mut. Life a$$'n v. Berry, 94 P. 2d 770 - 1939

(decided for Acacia Mutual Life that cancelled Berry's insurance policy more than 4 years before the Berry's estate filed that suit).

 

According the payments history, that recently received from SLM,

my last payment was in October 2007 (rather than January 2008 they asserted earlier).

SLM filed this suit in August 2013. 

Link to comment
Share on other sites

I think that deserves a breach of contract counterclaim - say treble damages over what they allege you owe. 

I am guessing that you are talking about the fact that they did not sue him in NJ.....

 

If thats the case, then there is no way in the world that I would EVER sue for breach of contract over that.  If you do, they would simply withdraw their case here and file in NJ.....which would make like much harder on the guy in Arizona, dont you think? 

 

Sometimes, while something might be a violation, it's not worth pursuing when you look at the big picture.  And OP is right, the justice court he's in over this case would not allow it anyways. 

 

Aside from that, we cannot be certain at this point if this would have even been a violation of anything.  Without knowing every provision in the agreement, no one can speak to that.  The provision that OP posted gives them the RIGHT to sue in NJ, but does not state that they MUST sue in NJ.  Big difference. 

 

As far as the SOL issues go, you now have info that shows the debt to be older than previously thought, as far as SOL goes.  I would definitely push that issue--I know that courts do not favor the SOL defense down there, but there is still a law on the books that provides for SOL.  And I imagine that the "we dont favor SOL" claim falls more along the lines of if the SOL is iffy or not.  In your case, the SOL doesnt seem to be in question at all.

 

OP, please check the agreement in this case between you and SLM.  I am reading over AZ case law and there is a question in each of these cases as to what exactly constitutes the actionable moment on the account.  Most of these deal with an account where the agreement had an acceleration clause, where the lender could accelerate the whole balance and call it due immediately.  That seems to be the moment at which the AZ appellate courts agree that the SOL clock begins.  Is there any such acceleration clause in your contract?  Please let us know.  The AZ courts have consistently found two things to be the deciding factors--

 

1-the actual "default" that starts the clock occurs when acceleration is invoked.

2--the creditor must take some action to inform the consumer that acceleration has been invoked.

 

If there is any acceleration provision in your agreement, please post up what it says here.  They would have had to notify you that they have accelerated your whole balance.  At that moment, if you have such a clause, then that would be when the SOL clock begins.  If you do not, let me know...I am still reading cases and eventually I might come to one that does not have such a clause.

Link to comment
Share on other sites

I am guessing that you are talking about the fact that they did not sue him in NJ.....

 

If thats the case, then there is no way in the world that I would EVER sue for breach of contract over that.  If you do, they would simply withdraw their case here and file in NJ.....which would make like much harder on the guy in Arizona, dont you think? 

 

Sometimes, while something might be a violation, it's not worth pursuing when you look at the big picture.  And OP is right, the justice court he's in over this case would not allow it anyways. 

 

Aside from that, we cannot be certain at this point if this would have even been a violation of anything.  Without knowing every provision in the agreement, no one can speak to that.  The provision that OP posted gives them the RIGHT to sue in NJ, but does not state that they MUST sue in NJ.  Big difference. 

 

As far as the SOL issues go, you now have info that shows the debt to be older than previously thought, as far as SOL goes.  I would definitely push that issue--I know that courts do not favor the SOL defense down there, but there is still a law on the books that provides for SOL.  And I imagine that the "we dont favor SOL" claim falls more along the lines of if the SOL is iffy or not.  In your case, the SOL doesnt seem to be in question at all.

 

OP, please check the agreement in this case between you and SLM.  I am reading over AZ case law and there is a question in each of these cases as to what exactly constitutes the actionable moment on the account.  Most of these deal with an account where the agreement had an acceleration clause, where the lender could accelerate the whole balance and call it due immediately.  That seems to be the moment at which the AZ appellate courts agree that the SOL clock begins.  Is there any such acceleration clause in your contract?  Please let us know.  The AZ courts have consistently found two things to be the deciding factors--

 

1-the actual "default" that starts the clock occurs when acceleration is invoked.

2--the creditor must take some action to inform the consumer that acceleration has been invoked.

 

If there is any acceleration provision in your agreement, please post up what it says here.  They would have had to notify you that they have accelerated your whole balance.  At that moment, if you have such a clause, then that would be when the SOL clock begins.  If you do not, let me know...I am still reading cases and eventually I might come to one that does not have such a clause.

 

@kraftykrab,

 

The case you are talking about is Baseline v. Madison ?

 

Baseline Financial Services v. Madison, 278 P.3d 321, 229 Ariz. 543 (Ct. App. 2012)

held "that the breach of contract claim at issue accrued when Baseline's predecessor in interest repossessed Madison's vehicle under an installment sales contract with an optional acceleration clause, not on an earlier date when Madison's debt was written off as uncollectible."

 

http://scholar.google.com/scholar_case?case=10069423147809869705&q=info:iY9NugDHvYsJ:scholar.google.com&hl=en&as_sdt=0&inst=569367360547434339&oi=scholarr

 

My SLM Promissory Note has such optional acceleration clause.

 

In my Court filings (both Answer and Counterclaim) I stated that SLM's Legal Department demanded the Whole Balance Due in July 2008. It was their only way to accelerate. This SLM loan was unsecured and SLM had no collateral to repossess. 

Link to comment
Share on other sites

That is one of the cases...I found several. 

 

OK, do you have anything that proves SLM's legal department took this action in 2008?  A letter?  Or did they claim it themselves when they sued you? 

 

@kraftykrab,

 

The case you are talking about is Baseline v. Madison ?

 

Baseline Financial Services v. Madison, 278 P.3d 321, 229 Ariz. 543 (Ct. App. 2012)

held "that the breach of contract claim at issue accrued when Baseline's predecessor in interest repossessed Madison's vehicle under an installment sales contract with an optional acceleration clause, not on an earlier date when Madison's debt was written off as uncollectible."

 

http://scholar.google.com/scholar_case?case=10069423147809869705&q=info:iY9NugDHvYsJ:scholar.google.com&hl=en&as_sdt=0&inst=569367360547434339&oi=scholarr

 

My SLM Promissory Note has such optional acceleration clause.

 

In my Court filings (both Answer and Counterclaim) I stated that SLM's Legal Department demanded the Whole Balance Due in July 2008. It was their only way to accelerate. This SLM loan was unsecured and SLM had no collateral to repossess. 

OK, thats good info....do you have anything from SLM that shows this?  I'm hoping that you do.....

 

Something else I found about the SOL case law you presented earlier in here.  I searched out the two cases you mentioned.  I could find nothing in the first case that applies to your situation because the actual moment in which the SOL clock began was the disputed point in City of Tuscon v. Clear Channel.  There seems to be no such dispute in your case, especially if you have something from SLM showing that they demanded payment in full(acceleration) in July 2008.  In Tuscon, the parties disagreed at when the two year SOL period officially began. 

 

In the second case you cited, Gust, Rosenfeld v. Prudential Insurance, Gust won his case despute Prudential trying to claim that the SOL period had expired.  This case also does not apply to you because the issue at dispute was the "discovery rule".  In short, the discovery rule allows that the SOL clock can only begin at the moment that the injured party was first made aware of their injury.  AZ law is not clear as to the application of discovery rule to breach of contract cases, but here's the thing....

 

--Gust won in trial court, despite Prudential's claim that SOL had expired.

--Gust won the appeal, despite Prudential's claim that the trial court improperly applied their SOL interpretation.

--Gust won in the Supreme Court, despite Prudential's claim that SOL had already expired.

 

The only issue that was in dispute in both those cases is "when specifically did the SOL clock begin to run".

 

So, even though the case is cited for saying that SOL is not favored, the application of SOL is not at all the same as your situation.  There would be no question of the 4 year SOL expiring in your case if you can prove that SLM accelerated the balance in July 2008.  There WAS a question of SOL in the cases you mentioned. 

Link to comment
Share on other sites

OK, do you have anything that proves SLM's legal department took this action in 2008?  A letter?  Or did they claim it themselves when they sued you? 

 

OK, thats good info....do you have anything from SLM that shows this?  I'm hoping that you do.....

 

The only issue that was in dispute in both those cases is "when specifically did the SOL clock begin to run".

 

So, even though the case is cited for saying that SOL is not favored, the application of SOL is not at all the same as your situation.  There would be no question of the 4 year SOL expiring in your case if you can prove that SLM accelerated the balance in July 2008.  There WAS a question of SOL in the cases you mentioned. 

 

@kraftykrab,

 

Unfortunately, I don't have this SLM Legal Department's letter (both letter and envelope were printed on the yellow paper). 

 

I could submit with the Court my sworn affidavit (I still have a time remaining before "limine threshold")

or give the sworn testimony on the Trial.

 

My Credit report 2010 with Equifax (in HTML format) shows that SLM's Arrow Financial Services (acquired by SLM in 2006) pulled my credit file at the end of June 2008.

Link to comment
Share on other sites

One month ago, the "new" (third in this case and Phoenix based) SLM's Attorney filed again the Motion for Telephonic Witness,

who was nobody but the Custodian of Records that robo-signed "my" "Affidavit of Debt" filed together with the Complaint and accompanied by irrelevant (to the claimed Debt Amount) business records: falsified Web Application and incorrect (future Due Dates) Repayment Schedule and TILA Disclosure

 

The Custodian resides in Indiana, and the Attorney provided her home address and phone number.

 

Her robo-signed Affidavit can be found here (pages 6-7):

 

http://imgweb.charlestoncounty.org/CMSOBView/Service1.asmx/StreamDocAsPDF?viewertype=cms&ctagency=10002&casenumber=2012CP1001255&docseq=P1A1

 

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

 

Within 10 days (on 01/20/14), I submitted my objections against her telephonic appearance.

 

As of today, no answer from SLM Attorney and the Court.

 

My objections will be posted below.

Edited by GDayMateAZ
Link to comment
Share on other sites

COME NOW, the Defendants [myself and my wife], appearing PRO SE, and hereby respectfully request this Honorable Court to deny the Plaintiff’s Motion for Telephonic Witness, [Original Affiant's name] (“Witness” or “Affiant”), on the Trial scheduled for March XX, 2014 on the following grounds:

 

1. Based on the following inconsistencies and deficiencies of this Witness’ “Affidavit of Debt” (“Affidavit”) in its Paragraphs 3, 7, 8 and 9 and pursuant to Ariz. R. Evid. Rules 602, 607 and 803(6)(E), the Defendants are exercising their right to impeach said Witness due to her lack credibility, trustworthiness and personal knowledge of the matter.

 

2. On 01/xx/2013, the Witness affirmed and signed under the penalty of perjury Affidavit that was not supported by relevant business records and thus constituted inadmissible hearsay (especially in its Paragraphs 8 and 9) not qualified for hearsay exception under Ariz. R. Evid. Rule 803(6).

 

3. This Affidavit demonstrated lack of the Affiant’s personal knowledge (Paragraph 3) about inconsistency and deficiency of attached documents (Defendants’ “Answer and Affirmative Defenses”, Part II, Paragraphs 16-18 and 25), because she certified in advance (“carte-blanche”) truthfulness and accuracy of “ANY” possibly attached document (Paragraph 9 of Affidavit, “IF ANY”). 

 

4. Said Affidavit did not satisfy the standard that “… affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

Wells Fargo Bank, NA v. Allen, 292 P.3d 195, 231 Ariz. 209 (Ct. App. 2012).

 

5. Said Affidavit “essentially consisted of a summary of unnamed records” (Cole Taylor Bank v. Corrigan, 595 N.E.2d 177, 230 Ill. App. 3d 122, 172 Ill. Dec. 114 (App. Ct. 1992)), “unaccompanied by relevant records themselves and unsupported by facts establishing basis of the Affiant’s knowledge (Paragraph 8) about the amount due on loan” (Citing and rephrasing Hawaii Community Federal Credit Union v. Keka, 11 P.3d 1, 94 Haw. 213 (2000) on p. 11).

 

6. Citing and rephrasing Corrigan, the Affiant “…did not provide the documents upon which he relied when he made her conclusion that the current balance due” and owing was $7,xxx.xx as of 01/xx/2013 (Paragraph 8). “It is the business record itself, not the testimony of a witness who makes reference to the record, which is admissible” (internal citing and quotation marks omitted). 

 

7. In the Paragraphs 3, 7 and 8, the Affiant “…made a general avowal that he is the custodian of records and that he personally reviewed records that established the amount of the …indebtedness…
Those records were neither described nor attached, nor was there anything in the affidavit to provide a reviewing court with the means to evaluate the accuracy of the paralegal's calculation of the amount claimed to be due.”
………………………………………………………………………………………………
“Without ever referring to any of the specific documents submitted to the trial court, the paralegal summarily asserted that he was familiar with the …account records … kept in the ordinary course of business.”
…………………………………………………………………………………………….

“The purpose of custodian’s affidavit is to authenticate evidence – such an affidavit is of little value when it does not attach the evidence at issue.”  Wells Fargo Bank, NA v. Allen, 292 P.3d 195, 231 Ariz. 209 (Ct. App. 2012).

 

8. Pursuant to Ariz. R. Evid. 611(B) and JCRCP Rule 137(a), Defendants will respectfully request this Court to allow them to cross-examine this Witness/Affiant in the case of her admission to testify on this Trial.

 

9. Based on the first Defendant's, [GDayMateAZ], hearing loss and his previous Oral Argument’s (01/xx/2014) negative telephonic communications’ experience, he would be placed at a substantial disadvantage during telephonic cross-examination of said Witness and thus, his “substantial legal rights would be prejudiced thereby”.

WHEREFORE, The Defendants respectfully request this Court to deny the Plaintiff’s Motion for Telephonic Witness, [Affiant's Name].

Link to comment
Share on other sites

@1stStep,

 

1) What deserves the new counterclaim ?

 

2) SLM sues me for $8K; the treble damages claim for $24K would not fly in the AZ Justice Court: they reward maximum $10K

(not including court costs and attorney's fee).

 

If anything, it will get you out of justice court into a "real" court where the judges are more apt to look at everything more closely - from my read of things, the judge in this case is on the way to railroading you. 

 

I am guessing that you are talking about the fact that they did not sue him in NJ.....

 

If thats the case, then there is no way in the world that I would EVER sue for breach of contract over that.  If you do, they would simply withdraw their case here and file in NJ.....which would make like much harder on the guy in Arizona, dont you think? 

 

Sometimes, while something might be a violation, it's not worth pursuing when you look at the big picture.  And OP is right, the justice court he's in over this case would not allow it anyways. 

 

 

The counterclaim is about LEVERAGE - the leverage of now pointing out their mistake and making them more likely to want to walk away from this. Also, the counter is to get the OP into "real" court where the playing field is a little more level. Justice Court in AZ is very pro-creditor now matter how bad they screw up or violate. 

Link to comment
Share on other sites

If anything, it will get you out of justice court into a "real" court where the judges are more apt to look at everything more closely - from my read of things, the judge in this case is on the way to railroading you. 

 

 

The counterclaim is about LEVERAGE - the leverage of now pointing out their mistake and making them more likely to want to walk away from this. Also, the counter is to get the OP into "real" court where the playing field is a little more level. Justice Court in AZ is very pro-creditor now matter how bad they screw up or violate. 

 

@1stStep,

 

You sound pessimistic :-)

 

Some people in "my" Justice Court were not railroaded.

They were sued by JDBs, not by OCs.

 

In most recent (2013-2014) SLM cases in Superior Court, Judges sided with SLM.

 

It's too late (1.5 months before the Trial) for switching courts . 

Edited by GDayMateAZ
Link to comment
Share on other sites

If you file the counter, then that might push the trial back... 

 

or might not ?

 

AZ Justice Court Rules of Civil Procedure (AZ JCRCP) says expressly on 

such matters:

 

Rule 109: Signatures on documents filed with the court.

 

b. Documents filed not in good faith, etc.

 

A signature of an attorney or a party on any

document confirms that the person who is signing has read the document; that, to the person’s

best knowledge, the statements in the document are truthful; and that the document is filed in

good faith, and not to harass another party or to delay the lawsuit. If the court finds that a

document was filed in violation of this rule, the court may impose a penalty permitted under

Rule 127(d) on the person who signed it. [ARCP 11(a)]

Link to comment
Share on other sites

The new (already third and Phoenix based) SLM Attorney recently sent me "Supplemental Disclosure" which 

again insists that AZ SOL 6 years ARS 12-548 is applied, in spite of my repeated pleadings

that AZ SOL four years ARS 12-544(3) and 47-2725 are applicable only.

 

Also, it says that "Plaintiff's claim is based upon the legal theory of account stated",

while the SLM Loan is Installment Loan, and not Account Stated.

 

There words "Account Stated" were not included in the Original Complaint and any subsequent SLM pleadings

 

There is a Written Contract - Promissory Note that SLM did not attach to its Complaint,

and so I had to attach it myself to my Answer and Counterclaim.

 

Account Stated (or Open Account) has with AZ SOL 3 years ARS 12-543.

Link to comment
Share on other sites

A meet and confer letter is in order regarding their assertion of account stated. One of 2 things is happening... 1) they may be getting ready for summary judgment or, 2) the case may be falling apart.

 

As far as the counter - in my opinion, I don't think it's filed in bad faith. There are a lot of counterclaims that get filed during or after discovery. 

Link to comment
Share on other sites

They breached by suing in AZ and not in NJ... but pointing that out brings up a whole other host of issues...

 

Does NJ have a shorter SOL than AZ? 

 

Does suing the OP in NJ then violate the FDCPA if SLM is not the original creditor? 

 

 

Personally, I would raise the issues. If the attorneys can be convinced that they're getting in a quagmire, they may be apt to dismiss. 

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...