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Arizona JDB Suit


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Being sued by a Junk Debt buyer and would really appreciate any help with the answer which is soon due.  They did not submit any evidence whatsoever with the summons / complaint.  I am hoping for a dismissal based on lack of standing.

 

Any help greatly appreciated.

 

One question I have.  Is what I have at the bottom a Motion for Dismissal?  Should that be included here?  Or should it be on a separate form?  

 

THANK YOU.

 

 

Answers to "The Questions"

 

Plaintiff is a Junk Debt Buyer, presented by two attorneys in Arizona.

 

1. Who is the named plaintiff in the suit? REDACTED
2. What is the name of the law firm handling the suit? REDACTED
3. How much are you being sued for?  $2,XXX.XX
4. Who is the original creditor? (if not the Plaintiff)  GE Money Bank
5. How do you know you are being sued?  Properly served in person.
8. What was your correspondence? None
9. What state and county do you live in? Arizona, Pima
10. When is the last time you paid on this account? The SOL has not expired (6 yrs now in AZ!)
12. What is the status of your case?  Complaint Served (20 days to answer)
13. Have you disputed the debt with the credit bureaus NO
14. Did you request debt validation before the suit was filed? NO
15. How long do you have to respond to the suit?  About a week left
16. What evidence did they send with the summons? Absolutely Nothing.

 

 

 

Complaint   Complaint   Complaint   Complaint   Complaint

 

For its causes and complaint against the above named Defendant(s), the Plaintiff alleges as

follows:
I
That Plaintiff is a legal entity entitled to bring this action under the Statutes of the State of
Arizona. That Defendant(s) are residents ofthe State of Arizona. That Defendant(s), if applicable,
are husband and wife, and the acts alleged herein were done for and on behalf of their marital
community. Jurisdiction and venue are proper within PIMA County and this Court.
 
II
That on or about 1/13/2008, the Defendant(s) made, executed and delivered to GE Money
Bank xxxxxxx, a revolving Credit Account Application (Agreement). Thereafter, a contract was
formed. The contract was subsequently sold and/or assigned by the original creditor to Plaintiff.

 

III
That Defendant(s) have breached such contract and defaulted in payment of the indebtedness
, owed to Plaintiff under the terms of the contract in the present principal sum of $2,XXX.XX, with
accrued interest in the present sum of $XXX.XX, and with accruing interest at the contractual rate of
4.XX percent per annum from date of judgment, until paid, after deducting all payments and just
credits.
 
IV
That Plaintiff has made demand upon Defendant(s) for payment of all sums due pursuant to
the contract, but Defendant(s) have failed and refused to pay the amount.
 
V
Pursuant to the express written provisions in the contract, Plaintiff is entitled to recover
from all of the Defendant(s) its reasonable attorney's fees and costs incurred in the prosecution of
this action, and the collection of any judgment rendered. That Plaintiff alleges that the sum of
$300.00 is a reasonable sum to be allowed as and for its attorney's fees herein, in the event
Judgment is rendered by default.
 
WHEREFORE, Plaintiff prays for judgment against Defendant(s), jointly and severally, as
follows:
 
1. For the present principal sum of $2,XXX.XX;
 
2. For the accrued interest thereon in the present sum of $XXX.XX, plus accrumg
interest on the principal at the rate of 4.XX% per annum from date of judgment, until
paid;
 
3. For Plaintiff's reasonable prejudgment and postjudgment attorneys' fees and costs
incurred in the prosecution of this action, and the collection of any judgment
rendered;
 
4. For such other and further relief as this Court may deem just and proper.
 
 

 

 

DRAFT OF ANSWER    DRAFT OF ANSWER     DRAFT OF ANSWER

 

 

GENERAL OBJECTION

Should I state something here before the answer?

 

I

Admit in Part: I assume Plaintiff is as stated.  Defendant is a resident of State of Arizona

Deny in Part: Plaintiff may not be entitled to bring this action under Statutes of the State of Arizona.

 

II

Deny: I have no knowledge of executing or delivering a “Credit Account Application” to GE Money Bank / Care Credit, and have been presented with no evidence of existence of such an account.  The allegation that “the contract” was assigned or sold to Plaintiff assumes wrongly that a contract exists.  I do not know what contract is being referred to.

 

III

Deny:  I object to this request on the ground that it is vague, ambiguous and unintelligible in that I must speculate as to the meaning of “such contract” and “indebtedness owed to Plaintiff”.  I have been presented with no evidence of indebtedness to Plaintiff.

 

IV

Deny: I have not received demand of payment from Plaintiff

 

V

Deny: I deny that there is a written provision in any contract with Plaintiff that entitles “recovery of reasonable attorney fees.”

 

FURTHERMORE, I DENY every other allegation not previously admitted denied or controverted.

 

 

AFFIRMATIVE DEFENSES

1.   The Complaint fails to state a claim upon which relief may be granted.

2.   Plaintiff, as the defendant is informed and believes, lacks legal standing.  Plaintiff has failed to provide legal evidence that they are legally entitled to collect a debt.

3.   The action is barred by the Statute of Frauds

4.   The court would unjustly enrich the plaintiff by granting the relief sought herein.

5.   Plaintiff is barred under the Fair Debt Collection Practices Act, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by purported agreement.

6.   Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorney’s fees are all correct, agreed to by contract, and lawfully charged. Defendant also insists that the plaintiff produce the contract, account statements and purchase receipts to prove the amount of the debt.

 

 

WHEREFORE, the defendant asks the Court for judgment:

a.  dismissing the complaint herein with prejudice.

 

 

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...

6.   Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorney’s fees are all correct, agreed to by contract, and lawfully charged. Defendant also insists that the plaintiff produce the contract, account statements and purchase receipts to prove the amount of the debt.

 

 

WHEREFORE, the defendant asks the Court for judgment:

a.  dismissing the complaint herein with prejudice.

Just a couple of observations on a quick scan:

 

#6 doesn't seem to be an affirmative defense to me. I am not aware of any requirement that a complaint prove the fact of a matter. A complaint is merely allegations until proven in a court of law. Also, I don't believe an answer can be used to make demands or insist on something from the other party or the court.

Here is list of some ADs http://www.creditinfocenter.com/legal/affirmative-defenses.shtml

The WHEREFORE asks for relief that would seem appropriate for a Motion to Dismiss. An answer is a pleading and not a motion, so it would have to be separate from the answer. I am not a fan of filing an MTD with my answer unless is is clearly fatal to opposing's complaint such as an SOL that they cannot fix by amending their complaint. I feel an MTD on fixable errors is just helping opposing tighten up their claims when they are likely to be able to amend them.

 

I think something as simple as "The allegations of Paragraph II are: Denied" is sufficient for an answer. No explanation is needed or warranted AFAIK.

 

As for the start of the answer I have used something similar to:

Comes now the Defendants B.A. Baracus and Jane Doe Baracus, and files this Answer to Complaint as follows:

In response to each of the numbered paragraphs of the Plaintiff’s Complaint, we state as follows:

 

The allegations of Paragraph I are: Denied

The allegations of Paragraph II are: Admitted

...

etc.

========Update=======

A recent read of the AZ RCP indicates a bit more than a simple denial may be required:

16 A.R.S. Rules of Civil Procedure, Rule 8 ( b )

Rule 8 ( b ) Defenses; form of denials

A party shall state in short and plain terms the party's defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, the pleader shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or paragraphs, or may generally deny all the averments except such designated averments or paragraphs as the pleader expressly admits, but when the pleader does so intend to controvert all its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial subject to the obligations set forth in Rule 11(a).

 

Perhaps my pleadings have been deficient. No plaintiff has called me on them. That is why it is always advisable to have representation... then when we make an error we have someone else to blame. :-)

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Thank you very much for your response.

 

Is it unusual to have a complaint with no documentation or evidence?  I think in some other states, JDB are not allows to file a complaint unless its accompanied by evidence.

 

In any case, it sounds like you are saying that not proving the claim in the complaint is not a good basis for Motion to Dismiss?

 

Should I formally object to their "Prays for Judgement" part?

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Some insights into MTDs:

http://sussmanadr.com/docs/motions_to_dismiss_plit.pdf

http://apps.americanbar.org/litigation/litigationnews/trial_skills/pretrial-motion-dismiss.html

 

"Successful motions to dismiss a complaint are a rarity, more the subject of law school civil procedure classes than actual practice."

http://www.likelihoodofconfusion.com/legal-publications-ron-coleman/motions-dismiss-under-frcp-12b6/

 

When considering filing a motion I always try to consider what response I would make if I was opposing my motion as the other party. It tends to help to tighten up my motion.

 

http://government.westlaw.com/linkedslice/default.asp?SP=AZR-1000 has online access to:
Rules of Civil Procedure for the Superior Courts of Arizona
Justice Court Rules of Civil Procedure

 

If considering filing an MTD I would want to be well versed in the applicable rules such as:

16 A.R.S. Rules of Civil Procedure, Rule 12(b ). How presented; motion to dismiss

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, crossclaim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

1. Lack of jurisdiction over the subject matter.

2. Lack of jurisdiction over the person.

3. Improper venue.

4. Insufficiency of process.

5. Insufficiency of service of process.

6. Failure to state a claim upon which relief can be granted.

7. Failure to join a party under Rule 19.

A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. The defense numbered 3 may be made only if the action cannot be or could not have been transferred to the proper county pursuant to A.R.S., § 12-404. If, on a motion asserting the defense numbered 6 to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

 

As it states in the bottom paragraph, matters outside the pleadings presented can cause the court to treat the MTD as an MSJ subject to Rule 56.

Thank you very much for your response.

 

Is it unusual to have a complaint with no documentation or evidence?  I think in some other states, JDB are not allows to file a complaint unless its accompanied by evidence.

 

In any case, it sounds like you are saying that not proving the claim in the complaint is not a good basis for Motion to Dismiss?

 

Should I formally object to their "Prays for Judgement" part?

Never dealt with a JDB so I cannot say what is usual for their complaints. Local courthouse records would be a source to find out what typically gets filed with complaints from that law firm as well as the JDB in question and other JDBs. I am not in "other states".

 

By not providing any "evidence" with their pleading the JDB would not be eligible for a default judgment, assuming no response by the OP, without adding evidence to the record. Arizona has a very low standard, recently adopted by the legislature, for granting a default judgment in an unopposed collection suit. I believe they don't need much more than a copy of a spreadsheet entry with some numbers on it.

 

I am unaware of any Arizona requirement to include anything with a complaint on a debt collection case.

 

I would expect the "proving of a claim", by admissible evidence, to be highly unlikely if not impossible prior to an answer and based solely on a pleading (complaint).

 

The only "objecting" to a prayer for relief I want is from the judge regarding opposing's prayers.

 

Not wishing to file a pre-answer MTD in situations where opposing could readily amend and correct the issue, about the only other document that comes to mind that I *might* consider filing is a sworn denial/graduated denial. Originally I had read that this filing would prevent opposing from filing an MSJ. My experience has not born that out to be true. Then again at the time of my first summons I read how filing an MTD or propounding discovery would somehow make a DC attorney give up the suit. That would appear to be a completely false assumption from my experience with OCs. As for JDBs YMMV but I would not bet on it.

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Thank you very much everyone for your responses, I personally appreciate it, and I hope it can serve to help others as well.

 

I am planning on filing a "Sworn Denial" which I believe is to be done in person at the courthouse with their clerk.

 

At this point, I think I will just edit the WHEREFORE part to include my prays for judgement, and will not file a MTD.

 

My understanding is that a Sworn Denial somehow prevents, or invalidates the use of affidavits by the Plaintiff.  If anyone has more information that would confirm, or even explain that, please enlighten.

 

We have a perhaps interesting angle on the service for this lawsuit.  When I was approached, the guy asked me if I was "Mary White", which is my maiden name, and I said yes.  He then said I was served.  My name has been changed about a year, when I remarried.  So the lawsuit is actually against my maiden name.  The servicer definitely found the "right person" but its in the maiden name.  Is there any chance that this would result in a dismissal?  without prejudice?  Meaning they would have to re-serve me?

 

BTW, not my real name.

 

Thank you!

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While in court, normally the Plaintiff will be first, as soon as the attorney opens his mouth you object, attorneys cannot testify as to the facts of a case, when the attorney testifies he is then in the form of a witness, an attorney cannot be a witness and council. Next you move the court to dismiss the case, you state to the court that in order for the court to have jurisdiction the plaintif must have four things, I call them the legs on the table, because in order for a table to stand it must have four legs. Those four legs of the table are two opposing sides, two legs of the table, facts, and the most important "a witness" if any of these are not present the case(the table) cannot stand.

In common law there has to be two things in a civil matter, a sworn statement of injury and an injured party. Examine who they claim is the injured party. To be an injured party one must be the real party in interest. Also pay attention to who does the talking, if the attorney tries to testify and not just enter evidence you object, attorneys cannot testify as to the evidence, but they do it all the time because we let them get away with it.

Make sure you state to the court when it is your turn to talk that you are here today in propria persona, on a special appearance as opposed to a general appearance, for jurisdictional challenges. This lets the court know right away that you are challenging jurisdiction and you will not play their games. This is very, very important, if there is no witness in court the court does not have jurisdiction and the plaintiff has failed to state a claim for which relief can be granted. No competent witness no case. You move the court for an immediate dismissal with prejudice. If the court refuses you object and tell the judge that you want to make your objection on the record that the court has no jurisdiction and your objection will be for an appealable issue.

They will more than likely present an affidavit to the court from someone that works for them, you object, if there is no affiant in court that wrote and signed the affidavit the affidavit is moot. You have a right as given to you under the 6th amendment to face your accuser and cross examine any witnesses. If the judge gives you hard time over this because you invoked a constitutional issue you pull out the big guns

Your honor

Marbury v Madison 5 U.S. 137 (1803) cheif justice John Marshall stated that the Constitution is the supreme law of the land.

Byars v U.S. 273 U.S. 28 (1927) states that the constitution must be liberally construed in favor of the expressly designated beneficiary of the contract.

Who is the expressly designated beneficiary? YOU are

At this point the judge will more than likely tell you that you could be in contempt of court your reply is

Miller v U.S., 230 F2d, 486, 489 (5th Cir 1959) The claim and exercise of a constitutional right cannot be converted into a crime.

 

I do no care if it is civil or criminal you have a constitutional right to face your accusers. If the affiant is not present for cross examination the affidavit is moot and should not be allowed to be entered as evidence. Now that you have impeached their witness and affidavit they have no witness and no case. Motion to dismiss for want of jurisdiction and failure to state a claim for which relief can be granted.

Failure to state some thing does not mean that all they have to do is state that claim in a complaint, the mere act of stating something does not make it true, they have to prove it, if they cannot prove it they have failed to state a claim.

 

Miranda v Arizona, 384 U.S> 436 (1966)
Where rights secured by the Constitution are involved, there can be no rule making or legislation, which should abrogate them.
 

Trinsley v Pagliaro 229, F Supp. 647 (1964)
"Statements of counsel in brief or in argument are not facts before the court and are therefore insufficient for a motion to dismiss or for summary judgment."

 

I have had judge after judge tell me that Federal cases do not apply to state cases

Howlett v Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court cases apply to State court cases, .

 

Just last week I had a judge tell me that the constitution has no place in his court......did he open up a can of worms,,,,,,,He will not like a suit in federal court over this. And yes judges can be sued.
 

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@BTO429

 


While in court, normally the Plaintiff will be first, as soon as the attorney opens his mouth you object, attorneys cannot testify as to the facts of a case, when the attorney testifies he is then in the form of a witness, an attorney cannot be a witness and council.

 

How is the opposing attorney testifying?  When he's presenting the facts of the case?

 

 


if there is no witness in court the court does not have jurisdiction and the plaintiff has failed to state a claim for which relief can be granted.

 

Court rules and/or case law, please. 

 


They will more than likely present an affidavit to the court from someone that works for them, you object, if there is no affiant in court that wrote and signed the affidavit the affidavit is moot.

 

Not true.  Courts require affidavits.   What would be the purpose of requiring an affidavit if the affiant must appear in person?   An affidavit would be a waste of time and paper.

 

 

I have had judge after judge tell me that Federal cases do not apply to state cases

Howlett v Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court cases apply to State court cases, .

 

 

 

That case had to do with a violation of federal law brought in a state court.  What does that have to do with a civil case based on state law brought in a state court?

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...

Just last week I had a judge tell me that the constitution has no place in his court......did he open up a can of worms,,,,,,,He will not like a suit in federal court over this. And yes judges can be sued.

 

That is likely a rough path to pursue.  *I* would make every effort to avoid it.

 

The officers allegedly "by means of unreasonable force and violence seize[d] plaintiff and remove[d] him backwards" from another courtroom where he was waiting to appear, cursed him, and called him "vulgar and offensive names," then "without necessity slammed" him through the doors and swinging gates into Judge Mireles' courtroom. Id., at B-4, ¶ 7©. Judge Mireles, it was alleged, "knowingly and deliberately approved and ratified each of the afore described acts" of the police officers. Ibid. Waco demanded general and punitive damages. Id., at B-5 and B-6.

...

Taking the allegations of the complaint as true, as we do upon a motion to dismiss, we grant the petition for certiorari and summarily reverse.

 

The S. Ct. reversed the Ninth Circuit that opined...

Judge Mireles would retain his absolute immunity if he merely directed the officers to bring Waco to his courtroom without directing them to use excessive force. Gregory, 500 F.2d at 64-65 & n. 6. Here, however, Waco alleges that the judge "ordered [the police officers] to forcibly and with excessive force" bring Waco into his courtroom. If Judge Mireles requested and authorized the use of excessive force, then he would not be acting in his judicial capacity. Id. Taking the allegations in Waco's complaint as true, we cannot say that he can prove no set of facts in support of his claim. See Love, 915 F.2d at 1245; Gibson, 781 F.2d at 1337. Accordingly, we reverse the judgment of the district court.

Reversed and remanded.

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Thank you very much everyone for your responses, I personally appreciate it, and I hope it can serve to help others as well.

 

I am planning on filing a "Sworn Denial" which I believe is to be done in person at the courthouse with their clerk.

 

At this point, I think I will just edit the WHEREFORE part to include my prays for judgement, and will not file a MTD.

 

My understanding is that a Sworn Denial somehow prevents, or invalidates the use of affidavits by the Plaintiff.  If anyone has more information that would confirm, or even explain that, please enlighten.

 

We have a perhaps interesting angle on the service for this lawsuit.  When I was approached, the guy asked me if I was "Mary White", which is my maiden name, and I said yes.  He then said I was served.  My name has been changed about a year, when I remarried.  So the lawsuit is actually against my maiden name.  The servicer definitely found the "right person" but its in the maiden name.  Is there any chance that this would result in a dismissal?  without prejudice?  Meaning they would have to re-serve me?

 

BTW, not my real name.

 

Thank you!

For purposes of a plaintiff's pre-discovery MSJ, a properly done sworn denial should be able to rebut opposing's affidavit claiming that the OP has damaged the plaintiff. The so-called dueling affidavits. This should create a material issue of fact in dispute preventing a non-reversible grant of a pre-discovery MSJ. Opposing will often file a conclusory affidavit with an MSJ while alleging that the defendant's sworn denial is a conclusory affidavit.

 

It might make sense to wait until opposing files an affidavit before filing my own. That way I might be able to attack and rebut something(s) specific in their affidavit as well as any sworn denial I might choose to file. Others might have a different view on the subject.

 

Affidavits should avoid being conclusory. Nothing but the facts.

 

I would look to the rules (justice court?) to see if there was insufficient service.

 

 

While in court, normally the Plaintiff will be first, as soon as the attorney opens his mouth you object, attorneys cannot testify as to the facts of a case, when the attorney testifies he is then in the form of a witness, an attorney cannot be a witness and council.

...

 

How is the opposing attorney testifying?  When he's presenting the facts of the case?

...

An attorney will testify. I believe they cannot help themselves. They are not permitted to be a fact witness. When they argue the law they are not testifying. When they argue the "facts" of the case they will routinely cite facts not in evidence. Sometime their testimony only helps my case so I have the attitude of why should I interrupt them. The facts not in evidence should be met with objection each time they appear.

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For purposes of a plaintiff's pre-discovery MSJ, a properly done sworn denial should be able to rebut opposing's affidavit claiming that the OP has damaged the plaintiff. The so-called dueling affidavits. This should create a material issue of fact in dispute preventing a non-reversible grant of a pre-discovery MSJ. Opposing will often file a conclusory affidavit with an MSJ while alleging that the defendant's sworn denial is a conclusory affidavit.

 

It might make sense to wait until opposing files an affidavit before filing my own. That way I might be able to attack and rebut something(s) specific in their affidavit as well as any sworn denial I might choose to file. Others might have a different view on the subject.

 

Affidavits should avoid being conclusory. Nothing but the facts.

 

I would look to the rules (justice court?) to see if there was insufficient service.

 

An attorney will testify. I believe they cannot help themselves. They are not permitted to be a fact witness. When they argue the law they are not testifying. When they argue the "facts" of the case they will routinely cite facts not in evidence. Sometime their testimony only helps my case so I have the attitude of why should I interrupt them. The facts not in evidence should be met with objection each time they appear.

 

 

To represent his client, he has to state the facts of the case.  How else can he represent his client?

 

But I do agree that you should object when he cites facts not in evidence.  In fact, even if there is evidence, I'd object on the grounds that the evidence is unauthenticated and inadmissible.

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To represent his client, he has to state the facts of the case.  How else can he represent his client?

 

But I do agree that you should object when he cites facts not in evidence.  In fact, even if there is evidence, I'd object on the grounds that the evidence is unauthenticated and inadmissible.

How does an attorney represent their client, that is home in bed? By pointing out the specific facts where they already exist in the record. That is too limiting for most DC attorneys, so they just cite facts as if they were some kind of actual fact witness.

 

I like "objection, facts not in evidence".

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@AZProSe AZ court rules allow you to file a MTD in lieu of an answer. This does a few things. One, it prevents the plaintiff from getting a default judgment and lets them know they have a fighter on their hands. It also gives you a few extra days to get an answer together while you're waiting on the judge to rule on the MTD. If you assert a SOL defense in the MTD, it will force them to claim a date their cause of action accrued in their Opposition to your MTD. If this is anywhere near the SOL (discussed below), you can attack it in a response to their Opposition. Finally, if you assert a Lack of Standing in your MTD, it will also force them to provide you (and the court) with proof of assignment. This will probably be a bill of sale, and you can also attack this in your response to their Objection.

As to SOL, I'm looking at a GEMB card agreement with a 'choice of governing law' clause demanding the laws of the State of Utah govern the agreement. Utah has a 4-year Statute of Limitation. Without any more info to go on, I'll assume that their cause of action accrued on the 31st day after your last payment on the account. If this is 4 or more years before the date they filed the lawsuit, you can cite the Utah SOL in your MTD.

Also, AZ law changed in April 2011 to affirmatively set the SOL on credit card debts at 6 years. Prior to this, courts were applying both 3 and 6-year SOL to credit cards debts. While it'll probably get rejected, you should also argue in your MTD that a 3-year AZ SOL was in effect during the time they claim you opened the account (and defaulted, if applicable). DDS Financial Group, LTD v. Deborah Walrod from 2009 and LVNV Funding v. Leslie Thompson from 2008 are two AZ cases where the Court of Appeals applied a 3-year SOL.

Since they have not alleged when you defaulted, you'll have to say something like "Defendant denies knowledge of ever having had an account with GE Money Bank, but asserts that any account that may have ever existed would have defaulted no later than xx/xx/xxxx."


You may not be able to confirm any of this until you get some discovery documents from the JDB, but if you have any statements from GEMB after the account was charged off, check to see if they charged you interest in the period after it was charged off until the date it was sold to the JDB. If GEMB didn't charge you interest then, you can assert that GEMB waived this right and the JDB is therefore precluded from charging interest following charge-off.


You asked about complaints being filed with no documentation. This is common practice here in AZ. They don't have to file a single supporting document with their complaint here. They can simply claim such and such and request judgment in the amount of so and so, and if you don't respond, the allegations are assumed true and they get their full award.


You also asked about the service and said "the servicer definitely found the right person". IMO, you're splitting hairs here. First of all, they don't have to hand the papers directly to you. They could have left the papers with anyone at your residence of "suitable age and discretion". Asking your name was simply to log who they handed the papers to. Second, you would have to admit to the judge that you are the proper party and were served but under your maiden name. I think this will be perceived by the judge as petty and you could find yourself subject to sanctions if you lose your argument. Even if you can get the case kicked for improper service, they will re-serve you under your current name and you're right back here in a couple weeks anyway. You've got enough going for you that you don't need to nitpick the service.


Are you in Justice Court or Superior Court?

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Wow, I might have to do the MTD, I like a lot of what you had to say there.  This is going down in Justice Court.

 

The debt was within 2 months of SOL at the time the law extended it to 6yrs.

 

I have been in Arizona Pima County case search, and the details are very, very scant.  Is there a way to get all of the records from a specific case such as the two you cited?

 

Thank you so much.

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Drafted a MOTION TO DISMISS which in Arizona can be filed as an Answer.  Please let me know what you think.  At a minimum I am hoping this would give me more time to ADMIT/DENY the allegations in the Complaint.

 

DEFENDANT

Arizona

Pro Se Defendant

 

Pima Justice Courts, State of Arizona
pima consolidated justice courts
160 N Stone Ave, Tucson AZ 85701 (520)740-3171

 

JDB

Plaintiff,

 

v.

 

DEFENDANT NAME

Defendant

 

 

Case No. CV XXXXXXXX

 

MOTION TO DISMISS

 

 

 

 

 

 

Pursuant to Rule 12(B)(6), Ariz.R.Civ.P., I request that the Court dismiss Plaintiff Complaint with prejudice, on the grounds that the Complaint fails to state a claim upon which relief may be granted, and that the Statute of Limitations has already expired.

 

This Motion is supported by the following Memorandum of Points and Authorities.

 

MEMORANDUM OF POINTS AND AUTHORITIES

 

I.             BACKGROUND

 

Plaintiff filed their Complaint on November 5th, 2013 naming myself as defendant.  Plaintiff provides no documentary evidence of a contract existing between myself and plaintiff, no documentation that the principle, interest, or collection costs are valid, agreed to by contract, or lawfully charged.  There is no documentation describing how these amounts are substantiated or calculated and no proof of entitlement to “recovery of reasonable attorney fees”

 

When the alleged account was established, Arizona’s Statute of Limitations was 3 years.

 

II.            ARGUMENT

 

a.Standard of Review for Motion to Dismiss

 

A Rule 12(B) motion to dismiss for failure to state a claim, which assumes the complaint's allegations are true, attacks the legal sufficiency of the complaint. Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 519, 591 P.2d 1005, 1007 (App. 1979); see also SmileCare Dental Group v. Delta Dental Plan of Cal, Inc., 88 F.3d 780, 783 (9th Cir. 1996) (A claim may be dismissed either because it asserts a legal theory that is not cognizable as a matter of law or because it fails to allege sufficient facts to support a cognizable legal claim.).1 Dismissal is appropriate if "as a matter of law... plaintiff would not be entitled to relief under any interpretation of the facts susceptible to proof." Fidelity Sec. Life Ins. Co. v. State Dep't of Ins., 191 Ariz. 222, 222 \ 4, 954 P.2d 580, 582 (1998); The test is whether enough is stated to entitle the pleader to relief on some theory of law susceptible of proof under the allegations made. Daniel J.McAuliffe; Arizona Civil Rules Handbook, 8 (2006 ed.).

The court's review is limited to the contents of the complaint. See Allarcom Pay

Television, Ltd. v. Gen Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). In determining the sufficiency of a pleading on a Rule 12(B) motion, the court will consider all well pleaded facts to be true, but conclusions of law or unwarranted deductions are not credited. Aldabbagh v. Ariz. Dept. of Liquor Licenses, 162 Ariz. 415, 417, 783 P.2d 1207, 1209 (App. 1989); Folk v. City of Phoenix, 27 Ariz.App. 146, 149, 551 P.2d 595, 598 (1976). A court should grant a motion if it appears certain that the plaintiff would not be entitled to relief under any state of facts susceptible of proof under the claim stated. Lakin

Cattle Co. v. Engelthaler, 101 Ariz. 282, 284, 419 P.2d 66, 68 (1966).

I acknowledge that even if request for Rule 12(B)(6) dismissal is granted, Plaintiff may be given an opportunity to amend the Complaint, if such amendment will cure its defects. Republic Nat 7 Bank of New York v. Pima County, 200 Ariz. 199, 205 U 23, 25 P.3d 1, 7 (App. 2001); Sun World Corp. v. Pennysaver, Inc., 130 Ariz. 585, 589, 637 P.2d 1088, 1092 (App. 1981). I shall rely upon the discretion

of the Court in this regard.

 

b.Statute of Limitations

 

The current Statute of Limitations for credit card debt is 6 years in Arizona.  At time of creation of alleged account, Statute of Limitations for credit card debt was 3 years.  DDS Financial Group, LTD v. Deborah Walrod from 2009 and LVNV Funding v. Leslie Thompson from 2008 are two AZ cases where the Court of Appeals applied a 3-year SOL.

Furthermore, plaintiff has provided no documentary evidence that alleged account was active within the current or previous statute of limitations.

 

III. CONCLUSION

 

For the foregoing reasons, I respectfully request that this Court dismiss

Plaintiff's Complaint with prejudice. Alternatively, I move this Court for an

order requiring Plaintiff to substantiate these claims within fifteen (15) days of the Court's Order. Should Plaintiff fail to do so, I respectfully request the Court dismiss Plaintiff's Complaint, with prejudice.

 

DATED this _______ day of November, 2013

 

DEFENDANT NAME

 

 

I certify that a true and exact copy of the foregoing has been mailed this ______ day of November, 2013 to:

SLIMEY a$$ JDB ATTORNEY

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I have not found theses case in AZ Court of Appeals.

They seem to be appeals to the Superior Court and as such are not controlling case law but may provide guidance to the lower courts IMHO.

DSS Financial Group Ltd vs. Deborah Walrod caseNumber=LC2008-000690

 

 

LVNV Funding vs. Leslie Thompson caseNumber=LC2007-000441

 

 

Found them searching here: http://apps.supremecourt.az.gov/publicaccess/%28X%281%29S%28jpfgno45fmkjvc55rxlpkj55%29%29/courtsnotinc.aspx

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Thank you Creditor, look forward to checking that out.

 

It seems to me there are two approaches, the "Throw everything at them" approach (motions, pulling from every affirmative defense) and the minimal "play stupid" kind of approach (deny, oppose, object)

 

I have to answer in a couple of days and I stuck between these two approaches.  Any guidance appreciated.

 

Thanks

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Modified my MTD some.  Still haven't decided but I am leaning toward filing this as my answer:

 

MEMORANDUM OF POINTS AND AUTHORITIES

 

I.             BACKGROUND

 

Plaintiff filed their Complaint on November 5th, 2013 naming myself as defendant.  Plaintiff provides no documentary evidence of a contract existing between myself and plaintiff, no documentation that the principle, interest, or collection costs are valid, agreed to by contract, or lawfully charged.  There is no documentation describing how these amounts are substantiated or calculated and no proof of entitlement to “recovery of reasonable attorney fees”

 

When the alleged account was established, Arizona’s Statute of Limitations for “open accounts” was 3 years.

 

II.            ARGUMENT

 

a.Standard of Review for Motion to Dismiss

 

A Rule 12(B) motion to dismiss for failure to state a claim, which assumes the complaint's allegations are true, attacks the legal sufficiency of the complaint. Parks v. Macro-Dynamics, Inc., 121 Ariz. 517, 519, 591 P.2d 1005, 1007 (App. 1979); see also SmileCare Dental Group v. Delta Dental Plan of Cal, Inc., 88 F.3d 780, 783 (9th Cir. 1996

The court's review is limited to the contents of the complaint. See Allarcom Pay Television, Ltd. v. Gen Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995).

 

b.Statute of Limitations

ARS 12-543 (today) provides that there shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, for debt where the indebtedness is not evidenced by a contract in writing.  Plaintiff has not evidenced a contract in writing.  Plaintiff’s complaint references a date of 1/13/2008 – more than three years ago.

 

While ARS 12-548 provides that written and “credit card” accounts are subject to a six year Statute of Limitations, Plaintiff has not evidenced that alleged account is written or a “credit card”.  Furthermore, if said alleged account was written or a “credit card”, at time of creation of alleged account Statute of Limitations was 3 years Arizona § 12-543

 

DDS Financial Group, LTD v. Deborah Walrod  LC2008-000690-001 DT 01/15/2009 and LVNV Funding v. Leslie Thompson LC2007-000441 from 2008 are two AZ cases where the Court applied a 3-year SOL.

 

 

c.Statute of Frauds

 

                The action is barred by the §44-101 Statute of Frauds.  No action shall be brought in any court for a chose of action $500 or more unless evidenced and signed by the party to be charged.

 

 

 

III. CONCLUSION

 

For the foregoing reasons, I respectfully request that this Court dismiss Plaintiff's Complaint with prejudice. Alternatively, I move this Court for an order requiring Plaintiff to substantiate these claims within fifteen (15) days of the Court's Order. Should Plaintiff fail to do so, I respectfully request the Court dismiss Plaintiff's Complaint, with prejudice.

 

DATED this _______ day of November, 2013

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Your motion to dismiss looks good with a couple of exceptions. First, there's nothing in your 'law and argument' that challenges their standing to sue. There's a 'Napolitano' case floating around that establishes what is required to bring suit. It's in my 'cavalry' thread if you can't find it anywhere else.

Also:

Furthermore, plaintiff has provided no documentary evidence that alleged account was active within the current or previous statute of limitations.

They haven't provided proof of anything period. By you advancing the expired SOL and standing issues, they will be forced to provide documentation to support the entirety of their claims. I don't think I would tell them specifically what they didn't provide, else they may provide only that documentation.

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Thanks Harry.  still trying to figure out the approach.  In Beergoogles famous thread he asked over and over again if he should refrain from pointing out all the evidence the Plaintiff would need.  I've gotten as far as seeing that in Discovery, he asked for every single document they had.  I haven't read all 16pages of trhe thread yet, but I know he won.

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I don't like you second version at all. Your first one was much better. You can be short and sweet with an Answer, but a motion needs to be pretty detailed and citing case law, etc. I think I would also draft and affidavit with statements like:

I have no knowledge of ever having an account with GEMB ending in 1234.

[JDB] never extended credit to me.

I never entered into an agreement of any kind with [name of JDB here].

Just basic factual statements that slice right through the core of their case.

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I have a sworn denial drafted up which would cover that (correct?).  I am wondering about the timing of filing that.  A Sworn Denial is an affidavit right?  Just a specific kind.  It goes like this:

 

I deny that this is my debt and if it is my debt, I deny that it is still valid debt and if it is a valid debt, I deny the amount sued for in the amount of $2,xxx.19 principal, $xxx.50 as interest including attorney fees is the correct amount.

I declare under penalty of perjury that the foregoing is true and correct

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I have a sworn denial drafted up which would cover that (correct?).  I am wondering about the timing of filing that.  A Sworn Denial is an affidavit right?  Just a specific kind.  It goes like this: I deny that this is my debt and if it is my debt, I deny that it is still valid debt and if it is a valid debt, I deny the amount sued for in the amount of $2,xxx.19 principal, $xxx.50 as interest including attorney fees is the correct amount. I declare under penalty of perjury that the foregoing is true and correct

I don't know about this format. I've never come across it. I would just go through their complaint and swear under oath anything that destroys their case. Don't lie, by the way. If you can't say you have no knowledge, say you have no record. If you can't say you have no record, chip away at some detail you know is incorrect.

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  • 3 weeks later...

AZProSe,

I've just been served with the EXACT same complaint from Cavalry. I have 19 days left to reply and, so far, your approach looks like the best way to go.

I mean, there is NO evidence in the complaint. The vague, boilerplate wording makes it obvious that they are filing hundreds of these complaints and counting on mostly default judgments or, in cases where the defendant actually answers competently, a quick and easy MSJ.

So filing the MTD first, even though it will probably be dismissed, seems like the most effective way to at least prevent a swift MSJ and give me time to come up with some good affirmative defenses for my answer. Maybe even some counterclaims if I can find any.

Did you end up filing the MTD in lieu of an Answer?

If so, has the judge ruled on it yet?

I can't afford a lawyer and I REALLY can't afford to screw this up, so any help will be greatly appreciated.

Thanks.

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