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Sallie Mae vs Me in Arizona - 2013


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  • 6 months later...
  • 4 weeks later...

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

 

Today, I found that she (Chicago attorney licensed in both IL and AZ) is no longer with BHLM and so she is no longer with my case: she moved to NYC several months ago.

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  • 1 month later...

@GDayMateAZ

 

Congrats!  Can you help explain what the "instrument in writing executed without the state" means?  

 

I wrote about this earlier in:

 

http://www.creditinfocenter.com/community/topic/323292-lost-sallie-mae-in-az-2014/?p=1301242

 

 

1. Black's Law Dictionary (9th Ed., 2009) defines the word “Instrument”

as “…a written legal document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certificate. . . . an instrument seems to embrace contracts, deeds, …in fact, any written or printed document that may have to be interpreted by the Courts" (emphasis added; internal citation and quotation marks omitted).”

 

2. In State v. Mixter, 546 P.2d 39, 26 Ariz. App. 62 (Ct. App. 1976), the Court agreed with the definition of “instrument in writing” made in Moore v. Diamond Dry Goods Co., 54 P.2d 553, 47 Ariz. 128 (1936): “A document or writing which gives formal expression to a legal act or agreement, for the purpose of creating, securing, modifying, or terminating a right; a writing executed and delivered as the evidence of an act or agreement.”

 

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

 

Merriam-Webster's Dictionary of Law defines "Execute" as:

 

2 : to perform what is required to give validity

to; esp : to complete (as by signing and

delivering) in proper form <~ a note> <~ a

deed>

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

 

Without the state -------- OUT OF THE STATE

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Thanks, I just wanted to clarify.

 

This seems to open up some interesting angles on credit card contracts (I realize they are specifically defined per Az law); however, if one was entered into outside the state....Any thoughts on this?

I thought of this.  Someone else mentioned that because the contract is renewed each billing cycle, it could only possibly apply to accounts that default before the person moves to AZ.

 

My thoughts on credit cards being statutorily defined is that "written" agreements are also statutorily defined with a 6-year SOL.  @GDayMateAZ has shown us that the 'out of state' status ultimately applies.  I see no reason why this couldn't also apply to credit cards since the plaintiffs always argue credit cards are written contracts so they can take advantage of the 6-year SOL.

 

We need a brave soul with a very specific set of circumstances to test this out.

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@Coffee_before_tea

 

@Harry Seaward

 

The applicable statute that was ruled by the court to apply to this lawsuit was 12-544(3) which states:

 

3. Upon a judgment or decree of a court rendered without the state, or upon an instrument in writing executed without the state.

 

GDay's contract was signed and executed (carried out) in FL.  I think this could be used for credit card agreements that were in default prior to one's moving to AZ.  But if the consumer uses the card while in AZ, part of the execution (carrying out) would occur in AZ. 

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@Coffee_before_tea

 

@Harry Seaward

 

The applicable statute that was ruled by the court to apply to this lawsuit was 12-544(3) which states:

 

3. Upon a judgment or decree of a court rendered without the state, or upon an instrument in writing executed without the state.

 

GDay's contract was signed and executed (carried out) in FL.  I think this could be used for credit card agreements that were in default prior to one's moving to AZ.  But if the consumer uses the card while in AZ, part of the execution (carrying out) would occur in AZ. 

 

Certainly poses an interesting argument.  A contract signed & executed in a different state, would still continue have the same basis of origin.  Credit card contracts are applied for, and signed, then triggered upon use of the card.  Amendments to the terms & conditions can be changed periodically by the creditor; although, these are typically a supplement to the original agreement.  The action of using credit in any state does not alter the location of where the original agreement was signed & executed.  Why does it have to be in default before moving to AZ?  Couldn't the user have run up 10k in debt in 2004, stopped using the card, then only paid on the account from then after.  If they defaulted in 2011, they are still bound by the 2004 agreement, as the agreements are triggered by the "use of the card".  

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@Coffee_before_tea

 

@Coffee_before_tea

 

The court made no mention of the fact that payments were made in AZ, so it appears that at least one Superior Court in AZ has determined that "execution" of a contract means where it's signed.   However, in regard to credit card debt, here's 12-548:

 

 12-548. Contract in writing for debt; six year limitation; choice of law

A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:

1. A contract in writing that is executed in this state.

2. A credit card as defined in section 13-2101, paragraph 3, subdivision (a).

B. If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies.

 

That statute applies the 6-year SOL to 2 specific things:  A contract executed in AZ and a credit card debt.  The statute separates them.  It does not state or imply that a credit card agreement must be executed in AZ.

 

It says that if the cause of action on either one of those two occurs in AZ, the 6-year SOL applies.  That's why I believe that an account would already need to be in default before moving to AZ. 

 

12-548 did not apply to Gday's lawsuit because his contract fit neither of the requirements for a 6-year SOL.  It wasn't executed in AZ nor was it a credit card debt.

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@Coffee_before_tea

 

@Coffee_before_tea

 

The court made no mention of the fact that payments were made in AZ, so it appears that at least one Superior Court in AZ has determined that "execution" of a contract means where it's signed.   However, in regard to credit card debt, here's 12-548:

 

 12-548. Contract in writing for debt; six year limitation; choice of law

A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:

1. A contract in writing that is executed in this state.

2. A credit card as defined in section 13-2101, paragraph 3, subdivision (a).

B. If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies.

 

That statute applies the 6-year SOL to 2 specific things:  A contract executed in AZ and a credit card debt.  The statute separates them.  It does not state or imply that a credit card agreement must be executed in AZ.

 

It says that if the cause of action on either one of those two occurs in AZ, the 6-year SOL applies.  That's why I believe that an account would already need to be in default before moving to AZ. 

 

12-548 did not apply to Gday's lawsuit because his contract fit neither of the requirements for a 6-year SOL.  It wasn't executed in AZ nor was it a credit card debt.

 

@BV80 - Great Response !!!

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1. A contract in writing that is executed in this state.

 

 

It appears that these statutes are in conflict.

 

If they claim (as the vast majority of attorneys do) that credit cards are a 'contract in writing', then a credit card contract in writing signed & executed in another state has a 4 yr SOL.  

 

This could be a quandary for the appeals court.  Is a credit card an contract in writing?  If so, then there are two conflicting statutes that control this area of law.  I realize they have specifically defined 'credit cards'; however, the rules of statutory construction rarely includes something that has not been specifically stated in writing (legislative intent).  Meaning, that if 12-548 remains silent about credit card contracts signed in a different state, then it is presumed that the legislature did not want to include that into the law.  It could be argued that the legislature would have placed language into 12-548 that included CC contracts signed in a different state if they wanted to include it, but it wasn't needed because it fell under an existing statute, 12-544(3).

 

Anyway, @GDayMateAZ don't mean to hijack your thread, but I think you've discovered a very interesting angle for future AZ defendants!

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@Coffee_before_tea

 

  I realize they have specifically defined 'credit cards'; however, the rules of statutory construction rarely includes something that has not been specifically stated in writing (legislative intent).  Meaning, that if 12-548 remains silent about credit card contracts signed in a different state, then it is presumed that the legislature did not want to include that into the law.

 

 

One also cannot read something into statute that has not been written. 

 

If Subsection A(1) had been meant to included ALL contracts, "executed in this state" would not have been included.  That phrase was included to show that there's another statute that applies to contracts executed outside the state.

 

If that same stipulation was meant to apply to a credit card debt in A(2), it would have been included just as with A(1).  The fact that it was not included shows that it doesn't matter where the contract was executed.  

 

The legislature separated credit card accounts from contracts executed within the state.  Considering the legislature included the stipulation in A(1), it would not make sense for the legislature to omit it in A(2) if it was meant to apply.  

 

Even if it were found to apply to A(2), it would have no effect on AZ consumers who resided in AZ when an account was opened.

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@Coffee_before_tea

 

I disagree.  Look at the first sentence in the statute.

 

A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:

 

"On either" means one or the other.  Either a contract executed in the state OR a credit card debt.  The plain language of the statute is "either of the following", and the stipulation ("executed in this state") was not included with credit card debt.

 

In addition, if both A(1) and A(2) applied at the same time, then no contract executed within the state would have a 6-year SOL unless it was a credit card contract.

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@BV80

 

Do CC co's & attorneys believe that a CC is a contract in writing?  The answer is yes.  It fits both A(1) & A(2).  "Either" is one-or-the-other.  The quandary is it can be argued either way, because it fits both.  This is why I say there is a conflict in the statute.

 

RFA:  Admit that the CC is a contract in writing - JDB: Admit

RFA:  Admit that the CC was executed in the state of California - JDB: Admit

RFA:  Admit that the account defaulted on 02/02/10 - JDB: Admit

 

Your honor, I'd like to move to dismiss this action as it is barred by the SOL, pursuant to 12-544(3).

 

Now the arguments begin....I'm not saying it is going to work, but I'd argue that point if it were my case.

 

--EDIT-- 

 

I suppose the JDB's cause of action could be Account Stated, and not breach of contract to get around this.

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It appears that these statutes are in conflict.

 

If they claim (as the vast majority of attorneys do) that credit cards are a 'contract in writing', then a credit card contract in writing signed & executed in another state has a 4 yr SOL.  

 

This could be a quandary for the appeals court.  Is a credit card an contract in writing?  If so, then there are two conflicting statutes that control this area of law.  I realize they have specifically defined 'credit cards'; however, the rules of statutory construction rarely includes something that has not been specifically stated in writing (legislative intent).  Meaning, that if 12-548 remains silent about credit card contracts signed in a different state, then it is presumed that the legislature did not want to include that into the law.  It could be argued that the legislature would have placed language into 12-548 that included CC contracts signed in a different state if they wanted to include it, but it wasn't needed because it fell under an existing statute, 12-544(3).

 

Anyway, @GDayMateAZ don't mean to hijack your thread, but I think you've discovered a very interesting angle for future AZ defendants!

 

@Coffee_before_tea,

 

Please feel yourself free to hijack it :-)

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@Coffee_before_tea

 

Your RFAs would work if the 12-548 did not include credit card debt.  

 

Using your argument, it's a credit card (A(2)) but it was not executed within the state (A(1)).  Therefore, it is not subject to the 6-year SOL.  You've applied A(1) to A(2). 

 

Under your theory, if A(1) and A(2) were meant to work together, then A(2) would also have to apply to A(1).  A contract executed within the state would not be subject to the 6-SOL unless it was a credit card contract. 

 

Here's an RFA for a contract that was executed within the state but is not a credit card contract.

 

Admit that the contract is not a credit card contract.  Plaintiff:  Admit.

 

Your honor, while the contract was executed within the state of Arizona, Plaintiff has admitted that it is not a credit card contract.  I'd like to move to dismiss this action as it is barred by the SOL, pursuant to 12-544(3).

 

 

The statute is not in conflict because of the use of "either" in the first sentence.   Yes, "either" is one-or-the-other.  In other words, if the debt fits one-or-the-other, the 6-year SOL applies.   It can be either a contract executed within the state OR a credit card agreement.

 

In order for 12-548 to NOT apply, the debt could not fit either A(1) or A(2).

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Admit that the contract is not a credit card contract.  Plaintiff:  Admit.

 

Your honor, while the contract was executed within the state of Arizona, Plaintiff has admitted that it is not a credit card contract.  I'd like to move to dismiss this action as it is barred by the SOL, pursuant to 12-544(3).

 

That wouldn't apply because it was a contract that was executed within the state.  It wouldn't exclude all contracts, only one that were signed & executed in another state.

 

They would apply tests to see if it applies:

 

- Is there a contract?  Yes.

- Is it in writing?  Yes.

- Was it executed within state of AZ?  Yes.

 

Then, 12-548(1) applies.

 

The same would go for a credit card contract.

 

- Is there a contract?  yes.

- Is it in writing?  yes.

- Is a credit card contract a contract in writing?  Yes.

- Does 12-548(1) apply to written contracts?  Yes.

- Does 12-548(2) apply to credit cards?  Yes.

- Which part of the statute applies, if both apply?

 

I suspect they specifically added the credit card language, because credit cards are not a contract or instrument in writing (my opinion), yet a JDB lobbyist wanted a 6 SOL.  Now they have a statute in conflict, because if a CC was really a contract in writing, then they wouldn't have needed to add the language including credit cards into the 6 yr SOL.   

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@Coffee_before_tea

 

They would apply tests to see if it applies:

 

- Is there a contract?  Yes.

- Is it in writing?  Yes.

- Was it executed within state of AZ?  Yes.

 

 

Okay, apply this to a credit card account opened in another state but defaulted upon in AZ.

 

- Is there a contract?  Yes.

- Is it in writing?  Yes  (possibly)

- Was it executed within the state of AZ?  No.

- Is it a credit card debt.  Yes

 

It does not fit A(1), but it does fit A(2).  That brings you right back to the word "either" in the first sentence of the statute. 

 

if a CC was really a contract in writing, then they wouldn't have needed to add the language including credit cards into the 6 yr SOL. 

 

 

Exactly.  The reason the language was added was because some lower courts had ruled that a 3-year SOL applies vs. the 6-year SOL    However, if the legislature only wanted to confirm that credit card agreements are written contracts, all it had to do was include language that confirms a contract in writing includes a credit card agreement.  The legislature didn't do that.  It did not say that a credit card is a contract in writing.  It separated credit cards from a contract in writing.  Nor does A(2) include "unless the agreement was executed outside the state".

 

"An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:"

 

The first sentence of the statute says that the SOL is 6 years on a debt that is founded on either A(1) or A(2).  You can't get any clearer than that.  Even that first sentence separates a credit card from a contract in writing.  It does not say that the 6-year SOL does not apply if the debt is founded on one but is not founded on the the other.  If the debt IS founded on EITHER one, the SOL is 6 years. 

 

Let's say a credit card IS a contract in writing but it was not executed within the state.   Would it fit A(1)?  No.  Would it fit A(2)?  Yes. 

 

Now, let's say a credit card is NOT a contract in writing.  Would it fit A(1)?  No.  Would it fit A(2).  Yes.

 

It doesn't matter where it was executed or if it's a contract in writing or not, it still fits A(2).  It is founded on "either of the following".

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