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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. 

 

NJ SOL for written contracts is also six years.

 

None of the current parties have anything to do with NJ.

 

NJ is not relevant forum, and suing me in NJ would be FDCPA violation.

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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. 

 

Their Summary Judgment is impossible: there are genuine issues in the material fact (SLM documentation),

and MSJ must be filed no later than 90 days before the Trial date (JCRCP Rule 129( b )).

 

There is possibility that their case is falling apart.

 

Today I've received their Reply to my opposition to their Motion for Telephonic witness (my post # 67).

 

Now, there are three attorneys (two from Phoenix and one from Chicago) in my case.

 

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

 

02/06 - 02/07/14 

 

I had a hard time going through three pages of these Three Amigos' BS where they conveniently ignored 

all facts that I stated and all cases (including AZ Case Wells Fargo v Allen) I used (see my post #67).

Edited by GDayMateAZ
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@1stStep

 

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. 

 

I think it's possible that such a counterclaim could be seen as brought in bad faith or at least frivolous.   Unless the contract says that the consumer must be sued in NJ, there would be no basis to claim a breach.  Also, if the judge were to question the OP, it might be easy for the judge to find out that the OP really wouldn't want to be sued in NJ.   Another red flag to the judge.

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@1stStep

 

 

I think it's possible that such a counterclaim could be seen as brought in bad faith or at least frivolous.   Unless the contract says that the consumer must be sued in NJ, there would be no basis to claim a breach.  Also, if the judge were to question the OP, it might be easy for the judge to find out that the OP really wouldn't want to be sued in NJ.   Another red flag to the judge.

 

@BV80

 

Thank you so much for your response :-)

 

I'm loving it :-)

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YEA!!!   ::celebrate::

 

Good job! 

 

@BV80,

 

Thanks a lot !

 

But the war is still going on.

 

Now, I'm within 40 days before the Trial, 20-ish of March).

 

There is still no the Court's decision on the SLM Motion to Dismiss my Counterclaim for failure to state a valid claim

(my Posts #6, 52-54).

 

I filed my Counterclaim together with the Answer and Affirmative Defenses on 10/02/2013.

 

The first SLM Attorney (now resigned from my case and Justice Court, after that switching to Superior Court)

filed his Rule 12( b ) (6) MTD on 10/24/2013.

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@GDayMateAZ

 

I know nothing about Sallie Mae loans.  But I'm curious.  Why are they claiming a 3-year SOL on your counterclaim?  What was your counterclaim?

 

@BV80,

 

My Counterclaim was about getting back $6K, that I paid SLM between 2001 and 2007.

I alleged that was fraudulently induced by for-profit school' sales guy 

to sign SLM Promissory Note in 2001. 

 

In that MTD, SLM averred that I cannot counterclaim $6K back due to AZ SOL 3 years for fraud 

A.R.S. 12-543.

 

For that reason, I shot SLM back with Equitable Recoupment that must pierce SOL.

 

Using various SCOTUS and other sates' cases, I asserted that

my Recoupment Counterclaim $6K is timely as long the SLM's Complaint $8K is timely,

while such Recoupment Claim could not stand alone, as independent cause of action.

 

Also, Defendant's Equitable Recoupment Counterclaim's relief amount cannot exceed Plaintiff's Complaint's amount.

 

So, if SLM takes nothing, then I'd take nothing, too.

 

It would work for me, anyway.

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@GDayMateAZ

 

Okey dokey.   I also wondered about their 3-year SOL claim.  You said they're claiming 12-543(3):

 

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

 

Could you have known of any fraud before 3 years ago?

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Good job on getting the phone appearance denied!!

 

You could do one of two things - subpoena their witness (who most likely isn't going to show), or hope they don't produce a witness... 

 

@1stStep,

 

It looks like the Judge sided with my claim that SLM's Witness (who robo-signed "my Affidavit of Debt) perjured herself

certifying under the oath and the penalty of perjury truthfulness and accuracy of patently false documents.

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@GDayMateAZ

 

Okey dokey.   I also wondered about their 3-year SOL claim.  You said they're claiming 12-543(3):

 

3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

 

Could you have known of any fraud before 3 years ago?

 

On SLM opinion, I had to discover this fraud a long time ago.

 

In my pleadings, I stated that SLM never sent me that Loan Application I signed in October 2001.

 

I've received this document only one year ago (Feb 2013) from SLM attorneys Blatt, Hasenmiller, Leibsker and Moore,

who were preparing this litigation.

 

Only that time, I found that someone (either SLM or school) falsified my employment status,

filling out "SELF" in the "Employer Name" while it had to be "None" or "N/A".

 

So, I discovered this fraud only six months before SLM sued me (08/01/2013).

 

SLM downplayed my statement about the fraud discovery in 2013.

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@GDayMateAZ

 

Have you read this?

 

Sallie Mae Braces for $70 Million Hit from CFPB, Federal Regulators

 

http://www.insidearm.com/daily/sallie-mae-braces-for-70-million-hit-from-cfpb-federal-regulators/

 

Yes, I've read this before, because I'm "InsideARM" fan and subscriber :-)

 

It's interesting, but it could not help me with new legal arguments for the Court consideration.

 

My Trial is around the corner, and I'm preparing for my possible sworn testimony regarding

circumstances of that for-profit school's fraud that induced me to sign this SLM Promissory Note.

Edited by GDayMateAZ
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Yesterday (02/15/14) received SLM Attorneys' (there are three of them) response (dated by 02/07/14) where they 

with "formulaic recitations" (Twombly/Iqbal) deny all my legal arguments, stating for example that the Black's Law Dictionary has no jurisdictional basis and is not binding precedent in Arizona.

 

The assert the same for non-Arizona cases, which are not binding for AZ Courts, indeed.

 

They are still arguing that recoupment is not cognizable as Counterclaim.

It can be cognizable as Defense only.

 

I'm not sure if my reply to their BS (which is not required) would come to the Court in time ...

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I decided to not send them any reply.

 

As of today, there is no Court ruling on my Recoupment Counterclaim.

 

The Trial is still scheduled on March 2x.

 

However, I've just found (on the Court website) that a new Oral Argument is scheduled - one week before the Trial.

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The next week (starting from this Monday) I have the second Oral Argument dedicated to my "Recoupment Counterclaim".

 

Originally, the Oral Argument was scheduled for 10 minutes.

However, after the Court Calendar update, it's coming to 40 minutes.

 

And, the Trial is scheduled one week after.

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Yesterday I was unbelievably lucky to escape the ambush of Oral Argument (that lasted > 1 hour) gradually converted to Trial.

 

Both SLM lawyers (one from Phoenix and another from Chicago) were presented.

 

SLM decided to not send any witness-custodian,

and so the Judge asked us if both parties would agree to stipulate Trial right away.

I anticipated such thing (based on LR_Knight recent experience) and objected "I'm not ready, Your Honor".

 

My objections were accepted, but both SLM Legal Team and His Honor were visibly upset.

He stated that my long and persistent defense could cost me huge attorney's fee had I lost.

 

My Equitable Recoupment Counterclaim for $6K (where no interest should be applied according to FTC Holder Rule)

was dismissed because for its survival I would have to acknowledge

my $8K debt to SLM. I rejected such option repeating my bottom line that the Plaintiff should take nothing by this action.

 

At the end of "Oral Argument" (that miraculously for me was not converted to Trial) SLM and I introduced our documents:

 

1) SLM introduced falsified Loan Application, TILA Disclosure with wrong Due dates

and incomplete and defective Payments History (missed payments for 2001-2003).

They did not introduce the Promissory Note itself (with FTC Holder Rule provision)

 

2)  I introduced that Promissory Note and the Chicago lawyer promptly captured it on her smartphone and somehow printed all its pages.

Also I shocked SLM lawyers introducing my cancelled personal checks that used to pay SLM in 2001-2003,

that were missed in SLM Payments History.

 

They requested me immediately send them both-sides copies of these checks and all other "new"

documents (missed in my Disclosure) that I'm going to introduce on the Trial that is still scheduled for the next Friday.

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you busted them at the collecting late fees and credit distruction to prevent refinancing scam. remember they would have to refund late payment fees for 10 years now. I know that is what they do add late payments so the servicing is paid by you.

 

looks like loan servicing act violations also so make sure that gets in there. I don't like that the other sides lawyer made a picture of the note.

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@GDayMateAZ

 

My Equitable Recoupment Counterclaim for $6K (where no interest should be applied according to FTC Holder Rule)

was dismissed because for its survival I would have to acknowledge

my $8K debt to SLM.

 

 

2)  I introduced that Promissory Note and the Chicago lawyer promptly captured it on her smartphone and somehow printed all its pages.

Also I shocked SLM lawyers introducing my cancelled personal checks that used to pay SLM in 2001-2003,

that were missed in SLM Payments History.

 

 

I'm confused.  You didn't want to acknowledge the $8K debt to SLM, yet you produced cancelled checks that were used to pay them?

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