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Well still having problems with Cach. I sent out DV letter within the first 30 days of their first dunning letter I have the

signed green card. I checked out court website and Cach filled suite on Oct 22  Nothing is on court schedule and I

havn't been served yet. Anybody know if a lawsuit is considerd continued collection activity in Arizona because I havn't

even gotten any kind of validation from Cach yet. No phone calls no letters nothing. They have my correct address from

the back of green card. Any ideas on what to do next. Should I go to courthouse and get file or just wait to get served.

 

 

 

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Thanks for the reply shellieh I got their dunning letter sept 6 and sent out a DV letter on sept 18 They have not called me seeking a settlement or offering

any kind of payment plan. The court website just said plaintiff is Cach, nothing about law office of joe pezzuto. So does that make a difference.

I have read that Arizona doesn't have BOP so what can I do for discovery. Thanks from the Sandcrab

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Well still having problems with Cach. I sent out DV letter within the first 30 days of their first dunning letter I have the

signed green card. I checked out court website and Cach filled suite on Oct 22  Nothing is on court schedule and I

havn't been served yet. Anybody know if a lawsuit is considerd continued collection activity in Arizona because I havn't

even gotten any kind of validation from Cach yet. No phone calls no letters nothing. They have my correct address from

the back of green card. Any ideas on what to do next. Should I go to courthouse and get file or just wait to get served.

In Arizona I have not seen anything that would bar a lawsuit based on "continued collection efforts" after a failure to respond to a DV letter.

 

A DV letter is not a prophylactic for preventing or even discouraging lawsuits. I have never seen enough data points to determine whether either encourage or discourage suits with any reliability.

 

Since the complaint and summons have been filed with the court it is likely a matter of time before the OP is served. While waiting to be served I would use the extra time to prepare my answer, affirmative defenses, counter-claims (if available and desirable to pursue in state court) as well as any available flurry of pre-answer motions. In Arizona we have typically have 20 days to answer a suit. That feels like a pretty short time when it is your first suit. I would want to use the extra time between now and the actual service of process, that starts the 20 day deadline, to study and prepare my plan of action.

 

I would read up on AZ Rule 26.1 disclosure and court connected arbitration, if applicable.

 

In the local courthouse I *should* be able to call up the complaint on a computer and review the details without triggering my acceptance of service. For all I know they may decide to never serve the suit. Not likely, but it could happen. :-)

 

If the contract they allege/imply applies references JAMS arbitration and the amount in dispute is low ,I would investigate arbitration as a tool to leverage a favorable settlement, assuming I wanted to settle.

 

I like to figure out what I want, determine my resources, set up a plan of action, and execute it. There always seems to be plenty of opportunity to be reactive when opposing does something I failed to anticipate. I like to suck the drama (for my side) out of litigation to the best of my ability.

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Thanks Credator Do you know if there is a time limit from when they file and when you need to be served.  So just wait for complaint and see what

it says about if its account stated, common counts or other actions. Still learning so thanks for the info.

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@sandcrab

 

I would speak to an attorney.  A few courts have ruled that the filing of a lawsuit before responding to a timely DV is a continued collection activity.

 

Moriarity v. Henriques, Dist. Court, ED California 2013

The situation here is similar to the facts presented to the courts in Garcia-Contreras and McDaniel. Though Plaintiff demonstrates she sought verification of the debt, Defendants fail to explain how filing a lawsuit, obtaining summons, and sending it out for service constitutes "ceasing" collection efforts pending the debt verification. Likewise, the Court rejects Defendants' position that debt verification can be provided in compliance with 15 U.S.C. § 1692g(b) in a complaint for damages—the very purpose of which is to collect the debt.

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@sandcrab

 

I would speak to an attorney.  A few courts have ruled that the filing of a lawsuit before responding to a timely DV is a continued collection activity.

 

Moriarity v. Henriques, Dist. Court, ED California 2013

The situation here is similar to the facts presented to the courts in Garcia-Contreras and McDaniel. Though Plaintiff demonstrates she sought verification of the debt, Defendants fail to explain how filing a lawsuit, obtaining summons, and sending it out for service constitutes "ceasing" collection efforts pending the debt verification. Likewise, the Court rejects Defendants' position that debt verification can be provided in compliance with 15 U.S.C. § 1692g(b) in a complaint for damages—the very purpose of which is to collect the debt.

I always consider consulting with a competent attorney a good idea. If they are willing to represent me in a collection case as a defendant with a counter claim, on a contingency basis, I would assume they are either looney or they believe I have a strong case.

 

I would assume that Cach's argument, if they were required to defend, would be along the lines of:

"Judge, here is a copy of our fully compliant, standard DV response letter that we routinely mail out to deadbeat debtors, like the defendant. This is our standard business practice. We have no idea why the defendant would claim that they did not get our timely letter. Of course that doesn't change the fact that the defendant owes us a large sum of money that they have refused and continue to refuse to pay forcing us to file this suit. The defendant is merely trying to distract this court from their refusal to honor their commitment to pay their lawful debts."

 

Personally, I dislike having to prove a negative that never happened. I find attorneys don't get too excited about pursuing those types of situations YMMV. Perhaps with the favorable case law in the Ninth Circuit cited in Moriaty ** a JAMS arbitration in Arizona might be a place to successfully prosecute such a claim (again, assuming a small amount of alleged debt in dispute). An attorney might play in JAMS, if they a.) liked my case and b.) were comfortable playing in arbitration.

 

Regardless, I seriously doubt that Cach would be foolish enough to make the same losing argument as the failed one made in Moriarity v. Henriques, No. 1: 11-cv-01208-JLT (E.D. Cal. Apr. 19, 2013). http://scholar.google.com/scholar_case?case=15294006017048238634 :

Defendants contend, "Even if Moriarity did send a written validation request within the thirty-day validation period . . . Defendants properly validated the debt when they served her with the summons and compliant in the state court action." (Doc. 42 at 8). According to Defendants, "The state court complaint is a written statement confirming the identities of the parties and that the amount the creditor (FIA) claimed was due from Moriarity. This is all of the information that must be supplied in order to verify a debt." Id. (my emphasis added)

 

As always the party making the claim before the court must provide admissible evidence proving up every single one of the elements to their cause of action (assuming the party opposing requires them to do so). I would assume Cach will require me to do so for my claims and I would definitely be requiring them to prove up all their claim's elements.

 

As for failure to timely serve a defendant in Arizona ...

 

http://government.westlaw.com/linkedslice/default.asp?SP=AZR-1000

16 A.R.S. Rules of Civil Procedure, Rule 4(i)

Arizona Revised Statutes Annotated

Rules of Civil Procedure for the Superior Courts of Arizona (Refs & Annos)

Rule 4(i). Summons; Time Limit for Service

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. This subdivision does not apply to service in a foreign country pursuant to Rule 4.2(h), (i), (j) and (k) of these rules.

 

** Moriarity v. Henriques:

The Ninth Circuit has observed that litigation is "consumer-debt-collection-activity." Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1032 (9th Cir. 2010) (citing Heintz v. Jenkins, 514 U.S. 291, 295-299 (1995). The Court noted that in Heintz, an attorney "contested the applicability of the FDCPA to his debt-collection efforts because he was a lawyer engaged in litigation," but "[t]he Supreme Court held that the FDCPA `applies to attorneys who `regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation." Id. (emphasis added). Thus, the Ninth Circuit concluded that the service of a complaint furthers the "effort to collect the debt through litigation." Id.

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I would think that you have and FDCPA violation for continued collection attempts. Even if they manage to get around the lawsuit being considered a collection attempt; they were still supposed to validate the alleged debt before filing suit.

 

When you are served, and file your answer, I would add a countersuit for the FDCPA violation. It will give you much needed leverage.

 

Also; CACH is by far the worst, and a countersuit will do a lot of good as a way of negotiating a dismissal.

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At one time I believed filing FDCPA/FCRA counter-claims here in AZ was a good idea.  I've since turned the corner.  If the judge dismisses them (which is almost certain in JC and probably 50% likely in Superior Court), you have to wait until final judgment  so you can appeal to get the ruling on your counter-claims reversed.  In the mean time, you're stuck doing battle with no counter-claim ammo with which to negotiate settlement.  If you wait to bring up your counter-claims until pre-trial settlement negotiations, your hands won't be tied with your ability to pursue the claims after final judgment, and IMO it puts you in a better position to negotiate.

 

Furthermore, every time you as a pro se get a communication from the lawyer, that communication must provide FDCPA required language ("this communication is from a debt collector...")

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