Harry Seaward

Arizona - Lost to Cavalry on MSJ - Also Lost on Appeal

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"In AZ Justice Court, there is only one appeal, and that goes to the Superior Court. The Superior Court's appellate findings are final in that you cannot appeal those decisions to the AZ Court of Appeals."

Wait, what? Says who? Source?

No further appeal may be taken from a final decision or order of the superior court under these rules, except where the action involves the validity of a tax, impost, assessment, toll, statute or municipal ordinance.

Rule 14(b ), Superior Court Rules of Appellate Procedure - Civil

https://govt.westlaw.com/azrules/Document/N1C002AA0717B11DAA16E8D4AC7636430?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

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Harry - I read your motion - excellent work!

 

It strikes me that the only possible argument to your logic would be for the court to find that the system is rigged and we can all go whistle.

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What a load of crap. Accurate crap but still crap. It appears that an old appellate decision confirms that rule as well. Morgan v. Continental Mortgage Investors, 16 Ariz.App. 86, 491 P.2d. 475 (Ct. App. 1971).

I think that is patently unfair.

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Wait, what happened? I don't understand, it was so clear that you were right Harry??? So, I got a Oder of Judgment against me and it is also wrong. They have no standing, the chain of title is clearly not there and I also have proof that I returned the items. Not to mention many other things. What now?

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Wait, what happened? I don't understand, it was so clear that you were right Harry??? So, I got a Oder of Judgment against me and it is also wrong. They have no standing, the chain of title is clearly not there and I also have proof that I returned the items. Not to mention many other things. What now?

What happened is the appellate court missed several of the points I was trying to make and seemed to rule as though the evidence was submitted at trial as opposed to MSJ.  I have motioned for a rehearing and am currently waiting for the results of that.

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Wow, I have been following this great thread and prior since it is very close to my case where I won a reverse and remand and Cavalry dismissed!.

 

BY THE SAME COMMISSIONER HARRIS!!!

 

Same Cavalry...same affiants.. same silly response on "verbal" thing which never made any sense to me!!

 

My reverse was in September 2013 and thought for sure you would get a reverse. 

 

 Your careful crafting and great advice from many was outstanding.  I don't really see where exactly my arguments were stronger than yours. 

 

On the 3 year SOL, Harris went into great detail leaving undecided with my argument unclear date of "last item" but if my calculations were correct (Plaintiff was unclear)  I would be outside the 3-year statute using October 31. 2009 as the start of the SOL period. There was no discussion of the 6-year statute.   I believe there may have been Appeals case after my 2013 case which went against the 3-year SOL if had not expired by the 2011? date of the new clarification law. 

 

I am now back in Justice Court on another case - here we go again, but cross my fingers, I at least won a reverse, succeeded in oral argument on larger case directly in Superior Court and over the last few years have had I believe 3 other cases dismissed,  but have no idea why I was so lucky vs your case. 

Edited by davephx

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 Re: “Defendant failed to controvert Plaintiff's facts” 

In one of my motions or reply to SJ I used some of the same arguments you did and was not discussed in my appeal. 

 

In my favor, the appeals court quoted Anderson v Liberty Lobby 477 U.S. 242 ... supporting my contesting of computer generated record and that I had properly argued lack of evidence and pointed out there was no testimony by any witness. 

 

Like you I lost in JC on a summary judgment and had lots of stuff in the record just like you did.

I have to more carefully review what I thought was a well-written opinion (since I won!) by Harris.  But its been over a year since I had to review these legal issues.

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Sorry, I didn't get into this thread earlier to maybe help more.  However, reading your two threads think you got much better legal ideas than I could provide, but amazed that you lost on very similar case as mine (even Saland) 

Edited by davephx

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davephx - sorry to see you back in court. It will be interesting to see how the landscape has changed since your last rodeo. Were any of your previous wins post parker

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I've looked only briefly at Parker but don't understand exactly why it is so bad for us.

 

My latest reverse of JC was in September 2013 - not sure when Parker was but I need to spend a lot of time digging into all this for current case.

 

I have zillions of printed out recent cases and need to spend serious time reviewing all.

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@davephx

 

 The court's ruling was based partly on on Weinstein's Federal Evidence.

"There is no requirement that the records have been prepared by the entity that has custody of them."

 

Parker is a problem because it allows the entity who has custody of the records to authenticate them even if they didn't create them.   In Midland v. Howell, the court of appeals cited Parker and said that Midland could have authenticated the records.   The only reason that the court ruled for Howell was because the affidavit was not from Midland.  It was from MCM.  If it had been from Midland, the courts would have allowed the records.

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I don't have the case from NJ that the ARM industry was so excited about, but Parker is similar. It gets the OC out of the picture so that a JDB clerk can testify (typically through affidavit) to the authenticity and reliability of the OC's records if they are integrated into the regular business of the new owner. 

 

In the good old days, if the original records were challenged, the JDB was stuck having to find a witness from the OC. On anything other than huge debts, getting to that point would be a win for the defendant. In states where this is allowed, a clerk from a JDB testifies with the same authority as an employee of the OC. Essentially it makes fighting a JDB the same as fighting an OC.

 

Harry's research has uncovered that the AZ Court of Appeals finds this to be a compelling argument and has yet to rule against it. 

 

Another factor is that major players like Midland are publicly traded companies - not mobbed-up boiler rooms where evidence is fabricated. It's too big of a legal cash-cow to risk messing it up with shenanigans. I use the Las Vegas casino analogy - it's simply bad business to cheat anymore. Judges know this.

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I just found today that the appellate court denied my motion for rehearing.

I find it very strange that the commissioner that gave the original opinion is the same one considering my allegations of her committing an error in her original findings.

My last possible course is to file a special action against the judges involved. I have to research this because I may not have remedy with this method and there's not a lot of info on the process.

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In doing further research, I see how Parker has hurt recently. 

 

I would still think the trustworthiness of the records could be challenged as well as the proper documentation for the sale that almost always has the "quit claim" clause - no guarantees of any accuracy. I often find cases the OC has lost based on bad records even if in other states to at least question the reliability of records at the MSJ stage and use on appeal.  Too bad Vee Vinhee is not a strong argument at least in some cases I've read since part of discretion of Court to follow or not since was a BKK case and is not controlling for credit cards. 

 

In Parker, a live witness was needed to lay the foundation and there was no real challenge it seems as to the accuracy.  Parker did hurt a bit on the "personal knowledge" argument.  

 

However, it is a narrow mine field on how you argue the case based on how each case is presented.   Of course, almost always lose in JC and have to do right presentation on Appeal.    Similar facts but slightly different approach can make the difference even with the same Commissioner that always seems to get Superior Court appeals. 

 

Harris that I won with but sadly Harry lost on similar facts also is the same commissioner on some other wins I found, which I believe have been cited somewhere here.

 

I also have identity theft - IRS notified me related to 2007 and 2011 and filed police report etc.   Not sure if that helped or not.

 

Currently got a letter from an attorney for JDB stating if I submitted their form and notarized affidavit with police report etc they would  dismiss the case.  I totally provided exactly what they asked for, but they will not dismiss the case.  Not sure yet what I can do with this. 

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I would still think the trustworthiness of the records could be challenged as well as the proper documentation for the sale that almost always has the "quit claim" clause - no guarantees of any accuracy.

I am beside myself with this issue. I raised it in my opposition to MSJ, my MIL and appellate memorandum and Harris completely ignored it. I raised it again in my motion to reconsider and that was unceremoniously denied with no explanation whatsoever. I don't know what to think about this, but it's not good at any rate.

Harris that I won with but sadly Harry lost on similar facts also is the same commissioner on some other wins I found, which I believe have been cited somewhere here.

Yes, she will reverse if the plaintiff doesn't follow the following formula:

Witness/affiant (1) states they are a custodian of plaintiff's records, (2) describes the records, (3) states plaintiff incorporated the records into their own and (4) states the plaintiff relied on them in their day to day activities.

If the witness testimony or affidavit hits those four beats, the case is over.

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Witness/affiant (1) states they are a custodian of plaintiff's records, (2) describes the records, (3) states plaintiff incorporated the records into their own and (4) states the plaintiff relied on them in their day to day activities.

If the witness testimony or affidavit hits those four beats, the case is over.

 

The fact that Midland complaints appear identical lately, regardless of state, tells me that they know the above formula. There is a new thread from someone in Michigan where the bill-of-sale actually ties it all together on one page - essentially the OC (seller) is talking about the records being integrated in the JDB's (buyers) system. 

 

I deal with systems integration all day at work - it would be trivial for debt sellers and debt buyers to develop a common protocol for the transfer of these records. I bang my head against the wall arguing the point that the industry has undergone a sea-change in the past couple of years. In 2011 I was served with a bill-of-sale dated years before the account was charged off. Now I see defendants being delivered packets that are indistinguishable from what an OC would provide - since that's what they ultimately are.

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@davephx

Harris that I won with but sadly Harry lost on similar facts also is the same commissioner on some other wins I found, which I believe have been cited somewhere here.. 
 
I also have identity theft - IRS notified me related to 2007 and 2011 and filed police report etc.   Not sure if that helped or not.
 

If Cavalry never controverted the identity theft adequately, I guarantee you this weighed heavily in Harris' decision to reverse.  And I believe Cavalry/Ewing screwed the pooch in your case with the affidavits, right?

 

I have always maintained that when the other side makes some fairly substantial errors, there's a good chance at getting a reversal on granted MSJs.  What's happening now is the JDBs are drafting their complaints with the "plaintiff's records were obtained from the OC, incorporated into plaintiff's own records and plaintiff relied on them in their day to day operations."  And this theme continues throughout the proceedings.  The JDBs have discovered the magic affidavit language and they just pull up the template and 'insert name here'.  To get around this you have show there is (1) a factual doubt as to the affiant's capacity to make such statements (wrong dates, inconsistent testimony, etc), (2) a defect in the records themselves or (3) a legitimate dispute over who opened and used the account that the records were created from.  From what I have observed, a dispute in the form of a sworn denial (affidavit) that you opened and/or used the account seems to be sufficient to reverse a granted MSJ.  I assume no responsibility for how one may choose to use that information.

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Too bad your case wasn't heard in Missouri.  From "Cach v. Askew," Mo. Supreme Crt. 2012

 

 

 For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967)Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App. 1989) ("The business records exception to the hearsay rule applies only to documents generated by the business itself.... Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.") A custodian of records cannot meet the requirements of § 490.680 by simply serving as "conduit to the flow of records" and not testifying to the mode of preparation of the records in question. C. & W. Asset, 136 S.W.3d at 140

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Too bad your case wasn't heard in Missouri.  From "Cach v. Askew," Mo. Supreme Crt. 2012

 

 

 For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967)Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App. 1989) ("The business records exception to the hearsay rule applies only to documents generated by the business itself.... Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.") A custodian of records cannot meet the requirements of § 490.680 by simply serving as "conduit to the flow of records" and not testifying to the mode of preparation of the records in question. C. & W. Asset, 136 S.W.3d at 140

 

Yes, many states do not accept the "adoptive business records doctrine".  Many do, however.

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This may not apply, but I was fighting LVNV here in Mich a couple of years back. I brought up some of these points during my trial.

 

LVNV Dirty dealings in Maryland: http://www.jdsupra.com/legalnews/junk-debt-buyer-lvnv-funding-llc-busted-16818/

 

I was also reading this one here about Cavalry: http://www.edcombs.com/wp-content/uploads/2013/07/Stubbs-v-Cavalry-SPV-I.pdf

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I just realized that I don't think I ever posted this: Due to a technical faux pas on Cavalry's part, this debt is un-collectible, however the judgment can be placed on my credit reports indefinitely (Arizona has an unlimited number of renewals) until it's satisfied.

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