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MSJ from Atlantic Credit JDB in Arizona


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 I have few questions regarding plaintiffs evidence that I can't seem to find answers to.

 

1. They have a signed Revolving Loan Agreement from Beneficial (OC) for $12xxx.xx dated 3/28/06 loan # xxxxxx-xx-xxxx83.

 

2. Assignment and Bill of Sale

Each Seller listed on Schedule I attached hereto (collectively the "sellers") has entered into an Account Purchase and Sale Agreement dated 12/21/12.("Agreement") for the sale of Accounts as defined in Section I of the Agreement to Atlantic Credit & Finance Special Finance Unit III LLC (hereinafter called "Purchaser") upon the terms and conditions set forth in that Agreement.

 

NOW THEREFORE for good and valuable consideration receipt of which is herby acknowledged Seller hereby sells assigns and transfers to Purchaser its successors and permitted assigns all of Sellers rights title and interest and obligations in and to (i) the Accounts owned by such Seller immediately prior thereto and (ii) identified on the Sale File delivered by the Sellers to Purchaser in Electronic file form in conjunction herewith and titled NRE FLOW 201303 ATLANTIC.xls.

 

IN WITNESS WHEREOF Seller has signed and delivered this instrument on 3/20/13.

 

Signed blah blah

 

3. Bill of Sale

Atlantic Credit & Finance Special Finance Unit III LLC sells to Atlantic Credit & Finance Special Finance Unit LLC.

Dated 3/29/13 and refers to Exhibit A. Which is a print out, in spread sheet format, with my name, address, phone #, ssn, Beneficial as OC, last payment and date, charge off date and a balance owed of  $14xxx.xx.

It also references two account #s. CO Account xxxxxxxxxxxx92 and  Account xxxxxxxxxxxx06. This document has no header.

 

4. Account Statement

The account statement is from Atlantic Credit & Finance Incorporated. It is dated 10/2/13, has ACF Account ID: XXXXX13, Original Creditor Account Number-last 4 digits XX92.

It also shows a balance of $14xxx.xx, Beneficial as OC, last payment and date, charge off date, and my personal information.

 

5. AFFIDAVIT OF Blah Blah Blah

This person works for Atlantic as an "Attorney Relationship Manager", it is dated 10/9/13. They reference Beneficial account # xxxxxxxxxxxx92, the balance of $14xxx.xx, the charge off date, and end it with:

"Attached hereto is a true and correct copy of a statement of account, bill(s) of sale and/or billing statement(s) relating to this account, as reflected in plaintiff's business records, and/or records provided to plaintiff by the original creditor (or its agents/assigns) in connection with plaintiff's purchase and/or assignment of the account.

 

6. Dunning Letter

Letter from Hammerman & Hultgren, P.C. (the attorneys representing Atlantic). Dated 8/20/13, Addressed to Mr. & Mrs. xxxxxxxx.

 

 

The problems with these documents I have discovered are as follows:

 

1. The contract

 It was signed on 3/28/06. I did not get married until 5/29/10 (they are suing my wife as well). They do not reference an assignee in the contract. The loan # does not match the account # they are suing me for. Amount of loan $12xxx.xx.

 

2. Bill of Sale from the OC

"Schedule I" was attached and refers to Beneficial and all of it affiliates, however "Section I" was not attached (no name or account #s). It clearly states the information was sent via "electronic file form" (does this mean the contract is a copy and cant be submitted?).

 

3. Bill of Sale from JBD to JBD

This is the first time an account number appears (it does not match the loan #). This is also the first time an amount appears (It is now $14xxx.xx with no evidence of how it got there). It is in a spread sheet format with no header. 

 

4. The Account Statement

It is from them! The first time I heard of them is when I got served. The account balance is $14xxx.xx with no evidence of how it got there.

 

5. The Affidavit

The date signed 10/9/13 (according to the bill of sale from the OC, the sale occurred 12/21/12, and I assume the electronic file transfer happened on 3/20/13, has to much time passed?) The person who signed it works for them. The balance of $14xxx.xx. The account #. The paragraph I quoted sounds like he has no idea what he is swearing to (there are no attachments to the affidavit so assume he is referring to the contract but it is not referred to directly).

 

6. The Dunning letter

It is addressed to me and my wife dated 8/20/13. I never received it. They did not know my wife's name until I told them (my mistake)after I was served on 11/8/13 (the service document, summons and complaint referred to me and Jane Doe)

 

Mistakes I have made so far: Initial Discovery time has passed, they filed, I filed nothing. As a matter of fact I have done absolutely nothing except file a blanket denial in my answer (there is a sound chance I am retarded). I have 1 weak left to file my response.

 

Any help would be greatly appreciated. 

 

 

 

 

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The problems with these documents I have discovered are as follows:

 

1. The contract

 It was signed on 3/28/06. I did not get married until 5/29/10 (they are suing my wife as well). They do not reference an assignee in the contract. The loan # does not match the account # they are suing me for. Amount of loan $12xxx.xx.

 

2. Bill of Sale from the OC

"Schedule I" was attached and refers to Beneficial and all of it affiliates, however "Section I" was not attached (no name or account #s). It clearly states the information was sent via "electronic file form" (does this mean the contract is a copy and cant be submitted?).

 

3. Bill of Sale from JBD to JBD

This is the first time an account number appears (it does not match the loan #). This is also the first time an amount appears (It is now $14xxx.xx with no evidence of how it got there). It is in a spread sheet format with no header. 

 

4. The Account Statement

It is from them! The first time I heard of them is when I got served. The account balance is $14xxx.xx with no evidence of how it got there.

 

5. The Affidavit

The date signed 10/9/13 (according to the bill of sale from the OC, the sale occurred 12/21/12, and I assume the electronic file transfer happened on 3/20/13, has to much time passed?) The person who signed it works for them. The balance of $14xxx.xx. The account #. The paragraph I quoted sounds like he has no idea what he is swearing to (there are no attachments to the affidavit so assume he is referring to the contract but it is not referred to directly).

 

6. The Dunning letter

It is addressed to me and my wife dated 8/20/13. I never received it. They did not know my wife's name until I told them (my mistake)after I was served on 11/8/13 (the service document, summons and complaint referred to me and Jane Doe)

 

Mistakes I have made so far: Initial Discovery time has passed, they filed, I filed nothing. As a matter of fact I have done absolutely nothing except file a blanket denial in my answer (there is a sound chance I am retarded). I have 1 weak left to file my response.

 

Any help would be greatly appreciated. 

 

1) they can sue your wife regardless of when you signed the loan because AZ is a community property state making a spouse liable for the debts as well.  Especially if the default was after the marriage.

 

2)  It probably means it is an electronic filing of the contract which cannot be attached.  

 

3)  Each new JDB is not required to use the original account number (though many do) it may simply be their own internal account number OR it could be something  you could use.

 

4)  Interest and fees on an loan in the five figures adds up quickly.  

 

5)  You have to attack their evidence at trial and/or with a motion to strike it.

 

6)  They don't have to prove you received the letter only that they sent one which means a copy of the letter. 

 

Not everyone is cut out to represent themselves.  You cannot effectively defeat them if you didn't do discovery on the plaintiff.  You should seriously consider hiring a lawyer.

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Thank you Clydesmom,

 

However, I cannot afford an attorney in any way shape or form. Am I not allowed to argue the facts of the MSJ even though I did not file discovery? We are not going to trial until after MSJ is decided and we go to Arbitration. 

 

Yes you can argue the facts in the hearing on the MSJ but if you didn't do discovery what basis are you going to use. The whole point to discovery is to get them on the ropes and know WHAT you are disputing and have the case law to back it up.  If you go to Arbitration you will not be going to trial.  ARB is in lieu of trial.

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Sorry I didn't realize ARB was in lieu of trial. Are you saying I can only argue their facts in Arbitration, not in my response? Is it too late to file a motion to strike?

Court mandated arbitration in AZ will likely result in an award. In certain circumstances that award can be "appealed" to the same trial judge and it is trial de novo. That arbitration appeal could end in a trial. If the MSJ is granted court arbitration is not going to be necessary.

 

I always want to propound discovery on opposing. I have not seen a situation where I thought that would not be highly warranted and likely productive.

 

If in the same situation as the OP I would feel the need to defeat the MSJ. On a quick read of the original post it seem that there are issues. Anything that was not referenced and attached to an affidavit I would be arguing is inadmissible and cannot be relied upon to support a grant of MSJ.

 

There are no templates for opposing an MSJ that I would expect to exist or personally use. It is just intelligent hard work. To get an idea of how much work, one could call a competent winning consumer attorney that beats JDBs/DC attorneys (the court docket should contain some names of winning attorneys) and ask for the cost to defend against one. While one has them on the phone that might also inquire as to why it costs "so" much and there might be some valuable information and insights gained.

 

There are a lot of moving parts for both sides when each side is intelligently engaged. Opposing needs to prove up all of the required elements to their cause of action. If their cause of action is a breach of contract, for example, they would need to prove up the elements listed in my post here: http://www.creditinfocenter.com/community/topic/318765-portfolio-recovery-services-msj-in-az-need-help-with-opposition/#entry1222498

 

The consumer has to survive dispositive motions/MSJs and trial shortcuts like court connected arbitration.

 

Their MSJ should have a memorandum of points and authorities ("MPA")and a statement of facts ("SOF"). I would almost certainly timely oppose their MSJ with a motion in opposition to their MSJ.

 

My opposition would include MPA and a separate SOF in Dispute. My MPA would be citing case law and making arguments (as the link above explains) controverting their MPA cites and arguments as well as explaining why the court should properly deny their MSJ. My separate Defendant's SOF in Dispute would address their SOF paragraph by paragraph and what evidence, arguments, and contradictions causes their SOF be clearly in dispute.

 

In Wells Fargo v. Allen (some helpful commentary here: http://azappblog.com/2012/12/04/wells-fargo-bank-v-allen-ca1-12412/ ) it appears that, in AZ, a collector plaintiff's MSJ can fail even before arriving at a material fact in dispute by the defendant. I would not rely on the failure of the plaintiff to present "sufficient undisputed admissible evidence to establish its entitlement to judgment" (although I would keep that in mind when drafting my response) but I would want to dispute every one of their SoF paragraphs.

 

In Allen it appears that Wells moved for SJ "shortly" after their complaint was answered and lacking any discussion of discovery it is unlikely any occurred. It would appear that defeating an MSJ without any discovery in AZ is apparently possible. I would assume it may be a bit harder defeating an MSJ with discovery propounded solely by the moving party.

 

My goal when defending a collection suit is to make an proper appealable trial court record. I find it easier/cheaper to create that record in court filings rather than hearings. The only way to control a trial court judge is by making a solid record that shows the appeal court the trial court judge erred and allows them to reverse/remand it. No record means the judge can do anything they wish.

 

The bad news is one week is very short on time to create a proper response in opposition of their MSJ IMHO. I would want to carefully read through the Rules of Civil Procedure for the Superior Courts of Arizona http://www.azcourts.gov/rules/Home.aspx to make sure I understood my exact deadline to respond to an MSJ. I would probably want to look at Current Arizona Rules -> Rules of Civil Procedure for the Superior Courts of Arizona -> VII. JUDGMENT -> Rule 56. Summary judgment -> Rule 56(c). Motion and proceedings

and

Current Arizona Rules -> Rules of Civil Procedure for the Superior Courts of Arizona -> II. COMMENCEMENT OF ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS AND ORDERS; DUTIES OF COUNSEL -> Rule 6. Time -> Rule 6(a). Computation

and Rule 6(e). Additional time after service under Rule 5(c)(2)(C) or (D) (commentary on the calculation of dates)

 

I would consider it really bad news if I had:1.) received admissions and failed to respond resulting in the painful possibility of them being deemed admitted OR 2.) responded to their request for admissions by admitting I owe money to the JDB or similar damning admissions that would put me in very deep hole that I will probably not be able to dig out of.

 

I have not dealt with a JDB in litigation but the posters that have seem to focus on the issue of standing.

 

Assuming the MSJ is denied, up next is likely court connected, non-binding compulsory arbitration (AZ RCP IX. COMPULSORY ARBITRATION) that produces an award that can be appealed depending on good faith participation by the appealing party and subject to other items. When the time comes here is Maricopa's guide for some insights: http://www.superiorcourt.maricopa.gov/SuperiorCourt/CivilDepartment/Arbitration/

 

I am not sure but it might be that the community property issue may hinge on whether any charges (i.e. benefit to the community) were made to the account after the parties were married. Perhaps an MSJ for the non-account spouse would then be appropriate, I don't know. These would be great questions for a competent consumer attorney IMHO. *If* the community property was not at risk then an employed spouse having a separate checking account and similar life arrangements may start to make sense.

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Credator.....you are saint thank you!

 

I will research your post and get back to you tomorrow  (after going to court house to insure I didn't miss anything like admissions). Will you please continue to follow this post?

Request for admissions are not filed with the court AFAIK.

 

Typically opposing counsel would send the alleged debtor request for admissions, production of documents, and/or interrogatories as part of discovery. A person would know if they received such requests and they would also know whether they responded or not.

 

If I received a request for admissions and had not timely responded I would want to look into whether or not it made sense to send them to opposing ASAP even if they were late. It would make sense to me that the court may want to see some good faith effort made by opposing to get a response to a request for admissions before the court would permit them deemed as admitted but I don't have any experience with late admissions from either side.

 

I contribute when and where I can based on my limited experience and time constraints. There are a lot of knowledgeable posters here that can point one in the right direction. Probably better qualified, based on their litigation experience with JDBs, I have none.

 

Searching the forum is invaluable, in my opinion, as we are typically dealing with the same issues others have already dealt with in litigation. I would probably want to dig into threads related to JDBs and probably standing.

 

I am interpreting the post stating "3. Bill of Sale from JBD to JBD" to indicate that the OC sold this to JDB1 which in turn sold it to JDB2. If that is the case JDB1 paid ~5% of face value of the alleged debt and JDB2 paid even less. If available, private arbitration (a clause that would be in the contract) may make sense to consider pursuing. Assuming there is an arbitration clause in the agreement, more info can be found here: http://www.creditinfocenter.com/community/topic/309878-the-cost-strategy-of-arbitration-and-why-it-works-for-the-consumer/ and here:

 

The bottom line when my name is on the pleading caption it is my case and I am responsible for any mistakes, the results of the case, and the work I do or don't do(whether I have representation or not). I always assume my pleadings and motion practice will take longer than I estimate and have rarely been disappointed.

 

Calling a consumer attorney or two for a consult is probably not a bad idea and may very well lead to some insights. If nothing else it makes one a bit more confident and comfortable for any hearing where they may be opposing an attorney in arguing before a judge.

 

Of course this forum is not a substitute for competent legal representation, but we all know that, or should. :-)

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1) they can sue your wife regardless of when you signed the loan because AZ is a community property state making a spouse liable for the debts as well.  Especially if the default was after the marriage.

 

2)  It probably means it is an electronic filing of the contract which cannot be attached.  

 

3)  Each new JDB is not required to use the original account number (though many do) it may simply be their own internal account number OR it could be something  you could use.

 

4)  Interest and fees on an loan in the five figures adds up quickly.  

 

5)  You have to attack their evidence at trial and/or with a motion to strike it.

 

6)  They don't have to prove you received the letter only that they sent one which means a copy of the letter. 

 

Not everyone is cut out to represent themselves.  You cannot effectively defeat them if you didn't do discovery on the plaintiff.  You should seriously consider hiring a lawyer.

1)  AFAIK they can only sue his wife if they were married when the debt was created.  If it was created before they were married then she is not legally responsible and cannot be held liable. 

 

3)  JDBs often switch account numbers.  But unless they can show the chain of custody where they can account for each change in that number, I would fight that.

 

4)  interest does pile up, but do not simply accept their word for how much is truly owed.  Question their accounting, how they added interest.  Also, if the OC did not add interest after charge-off, in some places, they wont be able to either.  That bears some looking into.

 

6)  His point, I think, about the letter was not so much that he did not receive it.  it was that he did not receive it, AND they claimed to know his wife's name back when they sent it--but then at a later date, they did not know his wife's name and had to refer to her as "Jane Doe" on the summons.  I do not know personally how much weight that would carry, but it would seem to me that if they are going to try to claim that she is a party to this debt, they ought to at least know what her name is. 

 

In other words, what I think he is saying about this letter is that it appears to be faked--that they created the letter AFTER they filed the lawsuit, after they learned what his wife's name is...and then simply back-dated it.

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1) AFAIK they can only sue his wife if they were married when the debt was created. If it was created before they were married then she is not legally responsible and cannot be held liable.

It's been a while since I looked into this but as I remember, if the debt was used to benefit the martial community, both spouses are liable regardless of when the account was created.
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It's been a while since I looked into this but as I remember, if the debt was used to benefit the martial community, both spouses are liable regardless of when the account was created.

I'd love to see them try to prove something like that.  Most of the time they cannot even prove they own the debt

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A.R.S. 25-215(B )

"The community property is liable for the premarital separate debts or other liabilities of a spouse, incurred after September 1, 1973 but only to the extent of the value of that spouse's contribution to the community property which would have been such spouse's separate property if single."

I think that means (someone set me straight if I'm misinterpreting it) each spouse is responsible for the debt in relation to the value of their contribution to the martial community. In other words, if both make the same amount of money and brought equal value of real property to the marriage, they are liable 50/50. If only one spouse has ever worked and the other spouse brought nothing to the marriage, it would be 100/0 split. And everything in between would be split accordingly. Bottom line is the total is 100% regardless how it gets whacked up.

The proof is on you to prove each parties martial contribution if you don't agree that it's 50/50. I'm guessing you would have to file a financial statement of some kind and probably affidavit.

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I have looked into bankruptcy but I am a car guy. I have 9 of them, 7 not running but they mean a lot to me. It would be a very sad day to have to part with them. I am a disabled veteran and work for cash, judgment proof. Getting my wife off the MSJ is my priority. If I fail, I will file bankruptcy, but it must be a last resort.

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A.R.S. 25-215(B )

"The community property is liable for the premarital separate debts or other liabilities of a spouse, incurred after September 1, 1973 but only to the extent of the value of that spouse's contribution to the community property which would have been such spouse's separate property if single."

I think that means (someone set me straight if I'm misinterpreting it) each spouse is responsible for the debt in relation to the value of their contribution to the martial community. In other words, if both make the same amount of money and brought equal value of real property to the marriage, they are liable 50/50. If only one spouse has ever worked and the other spouse brought nothing to the marriage, it would be 100/0 split. And everything in between would be split accordingly. Bottom line is the total is 100% regardless how it gets whacked up.

The proof is on you to prove each parties martial contribution if you don't agree that it's 50/50. I'm guessing you would have to file a financial statement of some kind and probably affidavit.

It seems I misunderstood this law.

 

http://www.azlawhelp.org/viewquestions.cfm?mc=1&sc=2&qid=7917

 

I don't know how it works, but I'm guessing your wife would file a motion to be dismissed as a party.  You'll have to prove you were married after the debt was created (should be easy to do with a marriage certificate), and that the debt does not include any amount that benefited the community (i.e. after you were married you didn't buy any furniture, appliances, etc, for the home you both lived in, and things like that).

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I'd love to see them try to prove something like that.  Most of the time they cannot even prove they own the debt

 

It is as simple as showing the spouse was an authorized user on the account.  As an AU and a spouse they can pursue her for the debt in a community property state.  If she was not an AU but DID use the card that too could prove it.  

 

It is a reasonable assumption that a spouse would benefit from the card's use.  It doesn't stop the defendant from using the defense the marriage occurred after the default and therefore they are not and should be dropped from the suit.

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You need to have her excused as a party to the suit.  IME, a notice is filed with the court explaining why your wife is not a party and then a motion to strike any portion of the Complaint (and any other pleadings that have been filed) that references your wife.  Not saying that's proper procedure, but that's how it happened in my case and the judge granted it.

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DEFENDANTS RESPONSE TO “STATEMENT OF FACTS IN SUPPORT OF PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT” AND DEFENDANTS STATEMENT OF FACTS

 

(is this a good header or should it be worded differently?)

 

 

Now comes Defendants, Mr. McGruber and Mrs. McGruber Pro Se, who denies/diputes the facts of Plaintiff’s Statement Of Facts in numbered paragraph format as follows:

 

  1. Defendants dispute that, “On March XX, XXXX, Defendant, Mr. McGruber (“Defendant”), entered into a Revolving Loan Agreement with Beneficial Arizona, Inc., a subsidiary of HSBC Consumer Lending (USA) Inc. (“HSBC”) for a personal line of credit, Account No. XXXX-XXXX-XXXX-XX92, assigned at charge-off (the “Account”).” Defendants dispute the reference to “Revolving Loan Agreement attached as Exhibit 1; Bill of Sale attached as Exhibit 2; and Affidavit of Booger Eater Dorkfish attached as Exhibit 3.”

  2. Defendants dispute the reference to “Defendants”. Defendants dispute that “Defendants breached the terms of the Account by failing to pay as required.” Defendants dispute the reference to “Exhibit 2; Exhibit 3; and Account Statement attached as Exhibit 4.”

  3. Defendants dispute that “Subsequently, HSBC sold and/or assigned the Account to Atlantic Credit & Finance Special Finance Unit III L.L.C. (“Atlantic Credit”).” Defendants dispute the reference to “Exhibit 3; and Assignment and Bill of Sale attached as Exhibit 5.”

  4. Defendants dispute that “The Account was subsequently assigned by Atlantic Credit & Finance Special Finance Unit III, L.L.C. to Plaintiff, Atlantic Credit & Finance Special Finance Unit, L.L.C. (“Atlantic Credit”).” Defendants dispute the reference to “Exhibit 5.”

  5. Defendants dispute the reference to “Defendants”. Defendants dispute that “The last payment from Defendants was received on July X, XXXX.” Defendants dispute the reference to “Exhibit 2 and Exhibit 4.”

  6. Defendants dispute the reference to “Defendants”. Defendants dispute that “At this time, there is still due and owing from Defendants to Atlantic Credit the sum of $14XXX.XX.” Defendants dispute the reference to “Exhibits 2-4.”

  7. Defendants dispute the reference to “Defendants”. Defendants dispute that “Atlantic Credit has made demand upon Defendants for this amount. Defendants, however, have failed and refused to pay.” Defendants dispute the reference to “Demand Letter attached as Exhibit 6.”

 

(this disputes every word of their SOF, should I change anything?)

 

DEFENDANTS STATEMENT OF FACTS

 

The reasoning behind Defendants disputing the Plaintiff’s Statement of Facts in numbered paragraph format.

  1. Referring to Exhibit 1; the Revolving Loan Agreement allegedly signed by Defendant clearly refers to “LOAN NO. XXXXXX-XX-XXXX83 and NOT Account No. XXXX-XXXX-XXXX-XX92, as the Plaintiff states. Plaintiff has provided no admissible evidence as to the Account being assigned at charge off. The Revolving Loan Agreement makes no reference to an assignee. Referring to Exhibit 2; this document refers to a flow chart, not an account statement. There is no affidavit in support of how the document was prepared or maintained and therefore contains no admissible evidence. Referring to Exhibit 3; Booger Eater Dorkfish works for Atlantic Credit and could not have any personal knowledge as to how records were kept at HSBC. There is no supporting evidence of the account number the affidavit refers to. There is no supporting evidence of the amount the affidavit refers to. There is no supporting evidence that the account was charged off on X/XX/2013. Paragraph 5 could refer to anything, leading Defendants to believe that he had no idea what he was swearing to. It is the Defendants belief that this is a clear cut case of “robo-signing”. The document was signed 203 days after the electronic transfer and does not fall within a reasonable time after, the act, transaction, occurrence or event recorded. (I do not know if this true or if there is any case law in Arizona to support it) This Affidavit is hearsay and therefore inadmissible.

  2. The term Defendants refers to my wife whom I married on May XX, 2010 and cannot be held accountable for this debt. See Marriage Certificate attached as Exhibit A. (is this an acceptable way to introduce evidence?) Plaintiff has provided no admissible evidence to state that Defendants breached the terms of the account by failing to pay as required. Defendants repeat the facts contained in paragraph 1. under Exhibit 2 and Exhibit 3. Referring to Exhibit 4; this Account Statement is dated XX/XX/2013, 7 years and 7 months after the Revolving Loan Agreement was allegedly signed, 10 months after the alleged account was allegedly sold to Atlantic Credit and 7 months after the alleged account was allegedly sold to Atlantic Credit. The Account Statement was generated by Atlantic Credit & Finance Incorporated, the Defendants do not now, nor have they ever had an account with Atlantic Credit & Finance Incorporated. Plaintiff has provided no admissible evidence to support anything the Account Statement states.

  3. HSBC did not sell and/or assign the Account to Atlantic Credit and the plaintiff has provided absolutely no proof to the contrary. Defendants repeat the facts contained in paragraph 1. under Exhibit 3. Referring to Exhibit 5; there is no “Section I of the Agreement” attached to this document. There is no “Sale File” titled “NRE FLOW 201303 ATLANTIC.xls.” attached to this document. The document refers to the “instrument” being delivered in electronic file form with no affidavit in support of how these electronic files were prepared or maintained.

  4. Atlantic Credit & Finance Special Finance Unit III, L.L.C. cannot assign an account it does not own to Atlantic Credit & Finance Special Finance Unit, L.L.C. Defendants repeat the facts contained in paragraph 3. under Exhibit 5.

  5. The Plaintiff has provided no admissible evidence to suggest when the last payment was received. Defendants repeat the facts contained in paragraphs 1. and 2. under Exhibit 2 and Exhibit 4 respectively. In response to the term “Defendants” please see Exhibit A.

  6. The Plaintiff has provided no admissible evidence to suggest that $14XXX.XX is owed to Atlantic Credit. Defendants repeat the facts contained in paragraphs 1. and 2. under Exhibit 2, Exhibit 3 and Exhibit 4 respectively. In response to the term “Defendants” please see Exhibit A.

  7. Atlantic Credit never made a demand on the Defendants for any amount. Defendants never refused or failed to pay. Referring to Exhibit 6; this document is a bold, in your face, outright lie! The Plaintiff did not know the Defendant’s wife’s name until after November when the Defendant gave her name to the Process Server. This is made clear in the fact that the Plaintiff’s initial Complaint, Summons and Certificate of Service all had her listed as “Jane Doe”. The Demand Letter is dated August and therefore has been falsified. If the Plaintiff would falsify a simple Demand Letter it is not impossible to believe that they would falsify other, more important documents. (there is a better way to say this, but the words allude me, a little help here!

 

In regards to the Defendants admission of Exhibit A. The Defendants were not familiar with the Rules of Civil Procedure for the Superior Courts of Arizona until after the Motion for Summary Judgment was filed by the Plaintiff. The Defendants thought they had until 90 days before trial to submit Disclosure, and knew nothing of interrogatories and admissions. This was made more confusing by the Order Assigning to Arbiter and subsequent letter from the assigned Arbiter. The letter states; “I am setting a conference call for XX:XX a.m., January X, XXXX, to discuss a hearing date” and “During the conference call we will discuss the nature of the claims and defenses and the status of disclosures and any pretrial motions” dated December XX, XXXX. The Defendants thought this call was going to occur because they were Pro Se and would shed light on what they were supposed to do. The Defendants now know that that was not the intent of the letter and realize fully that ignorance of the law is no excuse. Defendants request that the court allow Exhibit A and pray for relief in this matter.

 

 

(I will be working on my Response to Motion For Summary Judgment with memorandum of points and authorities to be posted later)

DEFENDANTS RESPONSE TO “STATEMENT OF FACTS IN SUPPORT OF PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT” AND DEFENDANTS STATEMENT OF FACTS

 

(is this a good header or should it be worded differently?)

 

 

Now comes Defendants, Mr. McGruber and Mrs. McGruber Pro Se, who denies/diputes the facts of Plaintiff’s Statement Of Facts in numbered paragraph format as follows:

 

  1. Defendants dispute that, “On March XX, XXXX, Defendant, Mr. McGruber (“Defendant”), entered into a Revolving Loan Agreement with Beneficial Arizona, Inc., a subsidiary of HSBC Consumer Lending (USA) Inc. (“HSBC”) for a personal line of credit, Account No. XXXX-XXXX-XXXX-XX92, assigned at charge-off (the “Account”).” Defendants dispute the reference to “Revolving Loan Agreement attached as Exhibit 1; Bill of Sale attached as Exhibit 2; and Affidavit of Booger Eater Dorkfish attached as Exhibit 3.”

  2. Defendants dispute the reference to “Defendants”. Defendants dispute that “Defendants breached the terms of the Account by failing to pay as required.” Defendants dispute the reference to “Exhibit 2; Exhibit 3; and Account Statement attached as Exhibit 4.”

  3. Defendants dispute that “Subsequently, HSBC sold and/or assigned the Account to Atlantic Credit & Finance Special Finance Unit III L.L.C. (“Atlantic Credit”).” Defendants dispute the reference to “Exhibit 3; and Assignment and Bill of Sale attached as Exhibit 5.”

  4. Defendants dispute that “The Account was subsequently assigned by Atlantic Credit & Finance Special Finance Unit III, L.L.C. to Plaintiff, Atlantic Credit & Finance Special Finance Unit, L.L.C. (“Atlantic Credit”).” Defendants dispute the reference to “Exhibit 5.”

  5. Defendants dispute the reference to “Defendants”. Defendants dispute that “The last payment from Defendants was received on July X, XXXX.” Defendants dispute the reference to “Exhibit 2 and Exhibit 4.”

  6. Defendants dispute the reference to “Defendants”. Defendants dispute that “At this time, there is still due and owing from Defendants to Atlantic Credit the sum of $14XXX.XX.” Defendants dispute the reference to “Exhibits 2-4.”

  7. Defendants dispute the reference to “Defendants”. Defendants dispute that “Atlantic Credit has made demand upon Defendants for this amount. Defendants, however, have failed and refused to pay.” Defendants dispute the reference to “Demand Letter attached as Exhibit 6.”

 

(this disputes every word of their SOF, should I change anything?)

 

DEFENDANTS STATEMENT OF FACTS

 

The reasoning behind Defendants disputing the Plaintiff’s Statement of Facts in numbered paragraph format.

  1. Referring to Exhibit 1; the Revolving Loan Agreement allegedly signed by Defendant clearly refers to “LOAN NO. XXXXXX-XX-XXXX83 and NOT Account No. XXXX-XXXX-XXXX-XX92, as the Plaintiff states. Plaintiff has provided no admissible evidence as to the Account being assigned at charge off. The Revolving Loan Agreement makes no reference to an assignee. Referring to Exhibit 2; this document refers to a flow chart, not an account statement. There is no affidavit in support of how the document was prepared or maintained and therefore contains no admissible evidence. Referring to Exhibit 3; Booger Eater Dorkfish works for Atlantic Credit and could not have any personal knowledge as to how records were kept at HSBC. There is no supporting evidence of the account number the affidavit refers to. There is no supporting evidence of the amount the affidavit refers to. There is no supporting evidence that the account was charged off on X/XX/2013. Paragraph 5 could refer to anything, leading Defendants to believe that he had no idea what he was swearing to. It is the Defendants belief that this is a clear cut case of “robo-signing”. The document was signed 203 days after the electronic transfer and does not fall within a reasonable time after, the act, transaction, occurrence or event recorded. (I do not know if this true or if there is any case law in Arizona to support it) This Affidavit is hearsay and therefore inadmissible.

  2. The term Defendants refers to my wife whom I married on May XX, 2010 and cannot be held accountable for this debt. See Marriage Certificate attached as Exhibit A. (is this an acceptable way to introduce evidence?) Plaintiff has provided no admissible evidence to state that Defendants breached the terms of the account by failing to pay as required. Defendants repeat the facts contained in paragraph 1. under Exhibit 2 and Exhibit 3. Referring to Exhibit 4; this Account Statement is dated XX/XX/2013, 7 years and 7 months after the Revolving Loan Agreement was allegedly signed, 10 months after the alleged account was allegedly sold to Atlantic Credit and 7 months after the alleged account was allegedly sold to Atlantic Credit. The Account Statement was generated by Atlantic Credit & Finance Incorporated, the Defendants do not now, nor have they ever had an account with Atlantic Credit & Finance Incorporated. Plaintiff has provided no admissible evidence to support anything the Account Statement states.

  3. HSBC did not sell and/or assign the Account to Atlantic Credit and the plaintiff has provided absolutely no proof to the contrary. Defendants repeat the facts contained in paragraph 1. under Exhibit 3. Referring to Exhibit 5; there is no “Section I of the Agreement” attached to this document. There is no “Sale File” titled “NRE FLOW 201303 ATLANTIC.xls.” attached to this document. The document refers to the “instrument” being delivered in electronic file form with no affidavit in support of how these electronic files were prepared or maintained.

  4. Atlantic Credit & Finance Special Finance Unit III, L.L.C. cannot assign an account it does not own to Atlantic Credit & Finance Special Finance Unit, L.L.C. Defendants repeat the facts contained in paragraph 3. under Exhibit 5.

  5. The Plaintiff has provided no admissible evidence to suggest when the last payment was received. Defendants repeat the facts contained in paragraphs 1. and 2. under Exhibit 2 and Exhibit 4 respectively. In response to the term “Defendants” please see Exhibit A.

  6. The Plaintiff has provided no admissible evidence to suggest that $14XXX.XX is owed to Atlantic Credit. Defendants repeat the facts contained in paragraphs 1. and 2. under Exhibit 2, Exhibit 3 and Exhibit 4 respectively. In response to the term “Defendants” please see Exhibit A.

  7. Atlantic Credit never made a demand on the Defendants for any amount. Defendants never refused or failed to pay. Referring to Exhibit 6; this document is a bold, in your face, outright lie! The Plaintiff did not know the Defendant’s wife’s name until after November when the Defendant gave her name to the Process Server. This is made clear in the fact that the Plaintiff’s initial Complaint, Summons and Certificate of Service all had her listed as “Jane Doe”. The Demand Letter is dated August and therefore has been falsified. If the Plaintiff would falsify a simple Demand Letter it is not impossible to believe that they would falsify other, more important documents. (there is a better way to say this, but the words allude me, a little help here!

 

In regards to the Defendants admission of Exhibit A. The Defendants were not familiar with the Rules of Civil Procedure for the Superior Courts of Arizona until after the Motion for Summary Judgment was filed by the Plaintiff. The Defendants thought they had until 90 days before trial to submit Disclosure, and knew nothing of interrogatories and admissions. This was made more confusing by the Order Assigning to Arbiter and subsequent letter from the assigned Arbiter. The letter states; “I am setting a conference call for XX:XX a.m., January X, XXXX, to discuss a hearing date” and “During the conference call we will discuss the nature of the claims and defenses and the status of disclosures and any pretrial motions” dated December XX, XXXX. The Defendants thought this call was going to occur because they were Pro Se and would shed light on what they were supposed to do. The Defendants now know that that was not the intent of the letter and realize fully that ignorance of the law is no excuse. Defendants request that the court allow Exhibit A and pray for relief in this matter.

 

 

(I will be working on my Response to Motion For Summary Judgment with memorandum of points and authorities to be posted later)

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I would consider it really bad news if I had:1.) received admissions and failed to respond resulting in the painful possibility of them being deemed admitted OR 2.) responded to their request for admissions by admitting I owe money to the JDB or similar damning admissions that would put me in very deep hole that I will probably not be able to dig out of.

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Credator.....you are saint thank you!

 

I will research your post and get back to you tomorrow  (after going to court house to insure I didn't miss anything like admissions). Will you please continue to follow this post?

I have not seen a response to the question of whether admissions were served on the OP and what if any response the OP has served on opposing counsel. I would view this as a potentially huge issue if it were in my case and I would want to address it sooner versus later.

 

Would my wife file a motion to dismiss with the Response to Motion for Summary Judgment or after? On that note can I file a motion to dismiss the affidavit as hearsay with RMSJ? 

I have no actual experience with this so hopefully someone that has will chime in.

I would think that an MSJ would be appropriate for the removal of the spouse from the lawsuit, assuming the spouse has filed an answer.

 

If Jane Doe was the spouse named on the complaint at the time of service and the spouse has not answered the complaint there *may* have been improper service. If the spouse answered then the service is likely no longer an issue.

 

If the court record doesn't reflect a defense claim that the spouse is not liable for the debt I would want to determine if that was a valid defense and how to get that into the record.

 

I would want to speak with a few competent consumer attorneys on the issue and seriously consider, if at all  possible, engaging the best one's services to, at minimum to remove my spouse from the lawsuit. I suppose it may be possible to have opposing pay for those attorney fees depending on the specifics of the situation and obviously based on a favorable determination on the MSJ (or whatever is the appropriate motion). Recovering attorney fees to remove the spouse could help raise the cost/risk ratio for opposing taking some of the starch out of their shorts FAIK. Even without attorney fees to opposing, losing the ability to have a freehand, post-judgment, against the spouse and community property could be viewed as "a loss of a very important psychological advantage over debtors and their spouses". in addition to making it more difficult to collect on any judgment.

 

Got to love these collectors and their lawyerly advice, "Moreover, we recommend moving forward with enforcing the judgment and leaving it to the debtor to file the appropriate objection." and the moment the debtor files their appropriate objection, opposing counsel will whine like crazy to court that "life is unfair".

 

I am not familiar with a "Motion to Dismiss an Affidavit". I would likely file my own affidavit rebutting any affidavit presented by opposing in an MSJ and reference my affidavit liberally in my defendants statement of facts in dispute. If my affidavit is credible, it should on help in supporting that there are material issues of facts in dispute that a fact finder would need to adjudicate and grant of MSJ would be inappropriate.

 

Consumer debt collection lawsuits are, for the most part, just psychological warfare. "Getting my wife off the MSJ is my priority." appears to be the goal for the OP.

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Mistakes I have made so far: Initial Discovery time has passed, they filed, I filed nothing. As a matter of fact I have done absolutely nothing except file a blanket denial in my answer (there is a sound chance I am retarded). I have 1 weak left to file my response.

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I understood, "they filed, I filed nothing" to mean that oppossing served  the OP with discovery.

 

Credator,

 

I was not served with admissions and have not served opposing council with anything.

 

For some reason I cannot copy and paste on this site to address specific questions

OK, so no admissions served by either side. Any other discovery requests served by opposing, such as production of documents, and/or interrogatories?

 

*If* there was no discovery propounded by opposing (and none by the OP) then this is a pre-discovery MSJ. Not that uncommon to see from DC attorneys AFAIK.

 

It does not sound like any affirmative defenses were filed. As I recall, failure to address the affirmative defenses plead by a party can be grounds to deny an MSJ AZ.

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Credater,

 

Just for clarity, they did file discovery with 6 Exhibits. I misunderstood discovery as being up to 90 days before trial, I did not catch the fact that Initial Discovery must be filed 40 days after answer. I have not responded to there Discovery until now. I did not file any affirmative defenses in my answer, only a blanket denial. I was working 12 hr days 6 days weak and did not give this matter the attention it deserved.....until now.

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