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Does anyone have a start to finish against JDB in AZ


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Can someone please point me in the right direction for AZ law.

 

Being sued by Asset Acceptance LLC

 

Need help with Summons and Complaint responses with 20 days.

 

Someone must have responded and posted a "Start to Finish" on this awesome site.  Help!

 

 

   Fill out the request for information the proper way so that people can help you best. 

 

 

 Answer all of the following.

 

 

 

 

1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

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

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

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.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

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   Fill out the request for information the proper way so that people can help you best. 

 

 

 Answer all of the following.

 

 

 

 

1. Who is the named plaintiff in the suit?

asset Acceptance, LLC

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

FULTON, FRIEDMAN AND GULLACE, LLP

3. How much are you being sued for?

6K

4. Who is the original creditor? (if not the Plaintiff)

BARCLAYS BANK

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

 

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

mail, notice on door

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

 

none

9. What state and county do you live in?

COUNTY OF MARICOPA STATE OF AZ

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

NOV 2009

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

 

AZ 7   DEL 3

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

NOTHING YET  NOT PROPERLY SERVED

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.

NO

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

 

20 DAYS FROM DATE OF PROPER SERVICE

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

SEE BELOW

JUST AFFIDAVIT EXHIBIT A

 

 

 

I need help answering the questions as they are different than those Midland etc and are confusing to respond to.

IN THE NORTH PHOENIX JUSTICE COURT

MARICOPA COUNTY, ARIZONA

ASSET ACCEPTANCE, LLC                                        I                            Case No

 

Plaintiff,

ORDER

VS.

 

and

JANE/JOHN DOE

, Husband and Wife,

 

Defendant(s).

 

This matter having come before the Court on the Plaintiffs Motion for Extension of Time and Order

Authorizing Alternative Service, pursuant to Rules 4.1(i) and (m) Ariz.R.Civ.P., and the Court having considered

the affidavit submitted and being fully advised in the premises, finds that service of process in this action upon

and JANE/JOHN DOE one of the means authorized by Rules 4.1(d) through (1)

 

has proven impracticable although the Post Office confirmed the address attempted and provided for

and JANEIJOHN DOE is accurate, that mail is delivered to that address and no change of address is on file, and that good cause exists for the extension of time to perfect service. Based upon the foregoing findings, and good cause appearing therefore;

 

IT IS HEREBY ORDERED that;

 

Plaintiff is granted an extension of time until the x  day of xx , 2013 to perfect service upon the

 

Defendant(s), and service of process in this action may be made upon and JANE/JOHN DOE

by posting and mailing the Summons, a copy of the Complaint, and copy of this Order, to the address

where and JANE/JOHN DOE receive mail. Said mailing shall be by both regular and Certified mail, return receipt requested, postage prepaid.

IT IS FURTHER ORDERED that the Plaintiff shall file with this Court satisfactory evidence of such

 

mailing.

 

 

DONE IN CHAMBERS this XXday of  XX                                                    2013.

 

 

 

 

IN THE NORTH PHOENIX JUSTICE COURT 

ASSET ACCEPTANCE, LLC

 

Plaintiff,

 

vs.

and JANE/JOHN DOE

MARICOPA COUNTY, ARIZONA

 

 

SUMMONS

, Husband and Wife, 

Defendant(s).

 

 

THE STATE OF ARIZONA TO THE DEFENDANT(S):

 

and

JANE/JOHN DOE

 

YOU ARE HEREBY SUMMONED and required to appear and defend, within the times

applicable in this action in this Court. If served within Arizona, you shall appear and defend

within 20 days after the service of the Summons and Complaint upon you, exclusive of the day

of service. If served out of State of Arizona - whether by direct service, by registered mail or

certified mail, or by publication - you shall appear and defend within 30 days after service of the

Summons and Complaint upon you is complete, exclusive of the day of service. Service by

registered or certified mail within the State of Arizona is complete 30 days after the date of filing

the receipt and affidavit of service with the Court. Service by publication is complete 30 days

after the date of first publication. Direct service is complete when made. Ariz.R.Civ.P. 4.

 

YOU ARE HEREBY NOTIFIED that in case of your failure to appear and defend within the

time applicable, judgment by default may be rendered against you for the relief demanded in the Complaint. 

YOU ARE HEREBY NOTIFIED that requests for reasonable accommodations for persons with

disabilities must be made to the division assigned to the case by parties at least 3 judicial days in advance of a scheduled court proceeding.

YOU ARE CAUTIONED that in order to appear and defend, you must file an Answer or proper

response in writing with the Clerk of this Court, accompanied by the necessary filing fee, within

the time required, AND YOU ARE REQUIRED TO SERVE A COPY OF ANY ANSWER OR

RESPONSE UPON THE PLAINTIFF'S ATTORNEY.

Ariz.R.Civ.P. 10(d); A.R.S. § 12-311; Ariz.RCiv.P. 5.

 

SIGNED AND SEALED this date

 Justice of the Peace                    

 

 

IN THE XXX JUSTICE COURT

MARICOPA COUNTY, ARIZONA

ASSET ACCEPTANCE, LLC                                          NO.

Plaintiff,

 

VS.

and

JANE/JOHN DOE

, Husband and Wife,

Defendant(s).

 

COMPLAINT

 

(Contract and Unjust Enrichment)

 

Plaintiff, ASSET ACCEPTANCE, LLC, alleges as follows: 

COUNT ONE

 (Breach of Contract),

1.

Plaintiff is a DELAWARE LIMITED LIABILITY COMPANY and is the assignee of US AIRWAY BARCLAY BANK.

II.

Upon information and belief, Defendants, husband and wife, are

residents of MARICOPA County, Arizona and at all times material hereto Defendants

, were acting on behalf of and for the benefit of the marital community, if any. 

I I I.

Venue is proper in this Court pursuant to A.R.S § 12-401.

                                                                               IV.

Defendant(s) entered into a contract with Plaintiffs predecessor(s)-in-interest, US AIRWAYS BARCLAY BANK

V.

Defendant(s) breached said contract by failing to pay as required.

                                                                               VI.

There is still due and owing on said contract from Defendant(s) to Plaintiff the sum of

$6,xxx, , plus additional accrued interest in the amount of $4xx, plus continuing interest at

the statutory rate from the date of execution of this Complaint until paid in full.

                                                                      Va.

Plaintiff has made demand upon Defendant(s) for such sums due and owing. The Defendant(s), however, has failed and refused to pay.

VIII.

Pursuant to the contract referenced above, and/or A.R.S § 12-341.01, Plaintiff is entitled to

recover reasonable attorneys' fees arising from this litigation, as well as costs incurred herein, pursuant

A.R.S § 12-341.

COUNT TWO

(Unjust Enrichment),

IX.

Plaintiff incorporates by reference the allegations contained in count One of the complaint as

though fully set forth herein.

X.

Plaintiffs assignor provided certain services and/or monies to Defendant(s), but

Defendant(s) has/have not paid in full for said services and/or monies as required by the contract between Defendant(s) and Plaintiff predecessor(s)-in-interest. 

XI.

Defendant(s) has/have been unjustly enriched to the detriment of Plaintiffs predecessor(s)-in-interest.

XII.

As a result of the unjust enrichment, Defendant(s) owes/owe Plaintiff the sum of

$6,xxx, plus additional accrued interest in the amount of $4xx., plus interest at the statutory rate from the date of execution of this Complaint until paid in full.

WHEREFORE, Plaintiff demands judgment against Defendant(s), , as

follows:

A. For the sum of $6,xxx, plus additional accrued interest on said sum at the applicable statutory rate calculated through the date of the entry of judgment;

B. For interest on the sums awarded by judgment herein, at the highest rate allowable by law, from the date of judgment herein until paid in full;

C. For Plaintiffs court costs incurred herein;

D. For Plaintiffs reasonable attorneys' fees arising from this litigation; and

E. For such other and further relief as the Court may deem just and proper.

  

THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT COLLECTOR. ANY INFORMATION

                                             OBTAINED WILL BE USED FOR THAT PURPOSE.

  

 

 EXHIBIT "A"

 

STATE OF MICHIGAN           )

) ss.

COUNTY OF MACOMB          )

 

AFFIDAVIT OF ACCOUNT

 

1.                  I am an employee of ASSET ACCEPTANCE, LLC ("Plaintiff"), a DELAWARE LIMITED

LIABILITY COMPANY, and am competent to testify to the facts set forth in this affidavit.

 

2.            I am familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and

maintains its business records pertaining to this account. These records are kept in the regular course of business and were created at or near the time of the event. To the best of my

knowledge and belief and upon review of records in my possession

("Defendant")established an account with US AIRWAYS BARCLAY BANK herein under account number XXXXXXXXXX-xxxx.

 

3.           That after establishing said account, Defendant(s) incurred charges and/or fees and/or interest

upon said account. 

4.            Defendant(s) defaulted on their payment obligations with regard to said account. 

5.            Upon information and belief, Plaintiffs predecessor(s)-in-interest performed all of the conditions

of the contract required by said contract. 

6.           Thereafter, Plaintiff purchased said account for value and is now the owner of said account. 

7.            That as a result of Defendant(s) payment default, the Defendant(s) named herein is/are justly

indebted to the Plaintiff in the amount of $6,xxx together with interest at the statutory rate.

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Here's one of the best examples of a JDB battle in AZ.  He was sued by the same JDB twice at the same time and prevailed on both.  It's a long read, but is a 'start to finish' as you requested and covers all of the bases. 

 

http://www.creditinfocenter.com/community/topic/311778-midlandarizona/

Thank you, I am looking for Asset Acceptance specific and have listed the complaint and additional info above.

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I'm not from your state but I have seen some successful outcomes by members from AZ.

 

Who was the OC?

When do they say you stopped paying?

How much are they suing you for?

Thank you, my questions are answered below.

 

I'm not from your state but I have seen some successful outcomes by members from AZ.

 

Who was the OC?

When do they say you stopped paying?

How much are they suing you for?

Thank you/Please see below for answers in full

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Thank you, I am looking for Asset Acceptance specific and have listed the complaint and additional info above.

 

The laws of your state are the same no matter if the Junk Debt Buyer is Midland, Asset Acceptance, LVNV or one of the many others.

 

The process is the same.

 

 

 

Arbitration in another process you could use if you don't want to fight it in court.  The thread below explains why it is so powerful on cases like yours.

 

http://www.creditinfocenter.com/community/topic/309878-the-cost-strategy-of-arbitration-and-why-it-works-for-the-consumer/page-2?hl=%2Bsteps+%2Barbitration#entry1183258

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FYI, the wording of Arizona's SOL laws was changed in 2011 to expressly include credit card debts under the 6-year SOL umbrella.  Prior to this change in law, no language existed specifically for credit cards so courts were applying both 3-year and 6-year SOL seemingly at random.  Two different cases were appealed from Maricopa Justice Courts to the Superior Court in which the Superior Court ruled the 3-year SOL applied in both cases.  While these cases are not technically binding, there doesn't seem to be anything on appeal establishing a 6-year SOL for credit card debts incurred prior to 2011.  My point in all of that is you can argue that prior to 2011, credit cards were subject to a 3-year SOL and because the plaintiff's cause of action on your account accrued before credit cards were categorically included with the amended statute, your account is subject to the 3-year SOL being applied at that time.

 

The other thing is I have a Barclays agreement from 2007 and it has a choice of law provision for Delaware which has a 3-year SOL for credit card debts.  You should assert in your first pleading (answer or motion to dismiss) that the DE SOL applies because the agreement says it does.  This gets this argument on record from the get go.

 

The Justice Court Rules of Procedure permit you to file a Motion to Dismiss instead of an answer so you have two directions you can go here.  First, you can file a MTD based on expired SOL from Delaware and in the alternate, the old Arizona statute.  You can also toss in there that the affidavit is worthless because there are no documents included with the affidavit, the affiant does not describe the "business records that pertain to this account", does not claim to have personal knowledge about the account when it was opened, active, defaulted and closed, nor does he/she claim to be the custodian of any of the records of the original creditor.  The good thing about this is it will let the other side know you are going to fight them on this and it may be enough for them to go away.  The bad thing is that you also show your hand to give the other side a chance to get their affairs in order.  Then chances of them producing proper documentation and witnesses is about 1 in 10,000, so you probably don't have anything to worry about, but it should be mentioned so you know the possibilities.  Either way, your MTD will will almost certainly get denied but if the other side sees you know what you're doing, it might dissuade them from pursuing this too hard.

 

The second thing you can do is file an answer and deny everything related to the debt and assert your affirmative defenses (SOL for DE and AZ, lack of standing, laches and statute of frauds should cover everything).  Then hit them with Discovery Requests and make them (dis)prove their case against you.  The good part of this is that it's a more certain way to go and less chance of things getting wacky with the court.  The bad part is you end up fighting this for the next 9-12 months.

 

Which every way you decide to go, you are now a part of the Maricopa County Justice Court system.  Are you any good at rolling dice?

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The laws of your state are the same no matter if the Junk Debt Buyer is Midland, Asset Acceptance, LVNV or one of the many others.

 

The process is the same.

 

 

 

Arbitration in another process you could use if you don't want to fight it in court.  The thread below explains why it is so powerful on cases like yours.

 

http://www.creditinfocenter.com/community/topic/309878-the-cost-strategy-of-arbitration-and-why-it-works-for-the-consumer/page-2?hl=%2Bsteps+%2Barbitration#entry1183258

Arbitration is certainly an avenue at your disposal and the arbitrators are arguably more consumer-friendly than they once were, but you should know that if you go the arbitration route and lose, the ruling is final and cannot be appealed.  If you go through court, you'll have 3 chances to plead your case - the judge, the jury and then appeal.

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Harry brings up a good point.  All strategies have their pluses and minuses and you will have to make the final call.

 

I know for me I would have a hard time in court so I have chosen to go the arb route against a JDB.

 

If my case goes to actual arbitration I will probably lose and then file BK.  However, AA/Midland has shown they only want the quick default and don't want to pay the arbitration fees so the fight is over before it even begins.

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Acually after spending the day  at the library reading the AZ Rules Of Court Volume II it says you can request a trial to be set if arbitration does not go your way.  In that book the answer section is page 78.  If they were unable to serve you within the 120 (happened to me) they can request that the court serve you by mail. They still have to have the server leave a packet on your door.

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FYI, the wording of Arizona's SOL laws was changed in 2011 to expressly include credit card debts under the 6-year SOL umbrella.  Prior to this change in law, no language existed specifically for credit cards so courts were applying both 3-year and 6-year SOL seemingly at random.  Two different cases were appealed from Maricopa Justice Courts to the Superior Court in which the Superior Court ruled the 3-year SOL applied in both cases.  While these cases are not technically binding, there doesn't seem to be anything on appeal establishing a 6-year SOL for credit card debts incurred prior to 2011.  My point in all of that is you can argue that prior to 2011, credit cards were subject to a 3-year SOL and because the plaintiff's cause of action on your account accrued before credit cards were categorically included with the amended statute, your account is subject to the 3-year SOL being applied at that time.

 

The other thing is I have a Barclays agreement from 2007 and it has a choice of law provision for Delaware which has a 3-year SOL for credit card debts.  You should assert in your first pleading (answer or motion to dismiss) that the DE SOL applies because the agreement says it does.  This gets this argument on record from the get go.

 

The Justice Court Rules of Procedure permit you to file a Motion to Dismiss instead of an answer so you have two directions you can go here.  First, you can file a MTD based on expired SOL from Delaware and in the alternate, the old Arizona statute.  You can also toss in there that the affidavit is worthless because there are no documents included with the affidavit, the affiant does not describe the "business records that pertain to this account", does not claim to have personal knowledge about the account when it was opened, active, defaulted and closed, nor does he/she claim to be the custodian of any of the records of the original creditor.  The good thing about this is it will let the other side know you are going to fight them on this and it may be enough for them to go away.  The bad thing is that you also show your hand to give the other side a chance to get their affairs in order.  Then chances of them producing proper documentation and witnesses is about 1 in 10,000, so you probably don't have anything to worry about, but it should be mentioned so you know the possibilities.  Either way, your MTD will will almost certainly get denied but if the other side sees you know what you're doing, it might dissuade them from pursuing this too hard.

 

The second thing you can do is file an answer and deny everything related to the debt and assert your affirmative defenses (SOL for DE and AZ, lack of standing, laches and statute of frauds should cover everything).  Then hit them with Discovery Requests and make them (dis)prove their case against you.  The good part of this is that it's a more certain way to go and less chance of things getting wacky with the court.  The bad part is you end up fighting this for the next 9-12 months.

 

Which every way you decide to go, you are now a part of the Maricopa County Justice Court system.  Are you any good at rolling dice?

 

Thank you for your response.  I am going to need some help with # 1 choice.  Not sure I can endure this ordeal for 12 months.  If my MTD gets denied, do I need a good set of dice?

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Acually after spending the day  at the library reading the AZ Rules Of Court Volume II it says you can request a trial to be set if arbitration does not go your way.  In that book the answer section is page 78.  If they were unable to serve you within the 120 (happened to me) they can request that the court serve you by mail. They still have to have the server leave a packet on your door.

This doesn't sound right, but even if it were true, the credit card agreements put the kaibosh on it with a "arbitration rulings are final" clause, so now you're back in court arguing this clause shouldn't apply and the arbitration ruling shouldn't be enforced because you don't like the ruling from the arbitration YOU elected.

Goooood luck with that.....

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Harry brings up a good point.  All strategies have their pluses and minuses and you will have to make the final call. I know for me I would have a hard time in court so I have chosen to go the arb route against a JDB. If my case goes to actual arbitration I will probably lose and then file BK.  However, AA/Midland has shown they only want the quick default and don't want to pay the arbitration fees so the fight is over before it even begins.

This is a really good point. If the debt is less than they would have to pay to arbitrate, they may very well drop the case. The problem I had when I went to arbitration was the other side didn't realize they were going to be on the hook for their own costs so they pursued it with guns a blazin'.

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Thank you for your response.  I am going to need some help with # 1 choice.  Not sure I can endure this ordeal for 12 months.  If my MTD gets denied, do I need a good set of dice?

The good news is there are tons of people here that have gone through exactly what you're facing so there's going to be guidance and encouragement available to you along the way.

If the MTD gets denied you move forward as if it were never filled. The court will notify you of its ruling and let you know you have 20 days to file an answer. From that point on, #1 and #2 are going to be exactly the same experience for you.

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