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So I have already been to court with JDB attorney in AZ. I used case law in AZ found by searching forums here that supports a 3 yr SOL (A.R.S. 12-543).

The JDB attorney objected by stating unpublished memorandum decisions hold no weight and have no precedent in the state of AZ as per AZ Supreme Court Rule 111©. The judge asked if I could provide a supplemental memo to support my contention for a 3 yr SOL.

I used DSS Financial v. Deborah Walrod to support my 3 yr SOL defense. My question is do unpublished cases hold no weight or precedent? It seems strange that only case law that has been "published" in some AZ court publication would be allowed.

If anyone has advice it would be much appreciated. Thanks

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It's true opinions from Superior Court are not binding on any court. Having said that, your response to the JDB's objection should be "I concede the case I cited is not binding. However, can you produce ANY Arizona decision or opinion, binding or otherwise, from an appealed case to support your position that the SOL on credit card debts prior to 2011 were subject to a 6-year SOL?"

The answer will almost certainly be no.

Because there is no binding case law, I'm one of the biggest proponents of arguing the 3-year SOL on credit card debts prior to 2011, but I also think that if any of these cases ever went before the Arizona Court of Appeals, there is a good chance the CoA would rule the 2011 amendment of A.R.S. 12-548 was a "clarification" and that the courts should have been subjecting credit cards to a 6-year SOL all along.  I also think this will never happen because these debts are unique because of the period of time in which they were incurred and once June 2016 rolls around, the 3-year argument will be moot because at that time everything will be beyond even the 6-year SOL.  Until then, it's my opinion that AZ people sued for debts that defaulted prior to June 2011 should always argue credit cards are "open" accounts and should be subject to the 3-year SOL in effect at the time of the default.


In addition to Walrod, I have three more cases where the Superior Court ruled 3-year SOL on credit card debts, however, as with Walrod, they too are not binding.

 

LVNV V. Thompson

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/022008/m3059648.pdf

 

Capital One v. Rufficorn

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/042010/m4185452.pdf

 

And this one that I just found is a beautiful examination of credit cards under the "open" account theory:

Asset Acceptance v. Shannon

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/072013/m5851411.pdf

 

 

If I were you, I would draft a memorandum using the Shannon case as a very detailed road map.

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They are not binding, however they do hold some weight especially if the JDB has no binding case law to support their position. If you have several non binding case law support, and they have none, then they haven't proven anything to oppose what you have. The argument is concerning statutes before the new ruling, so the judge should not add weight from the new clarification.

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You are right they have not provided any published case law supporting a 6 yr SOL prior to July 2011. They provided a case decision where the defendant didnt show up and they got a default judgement (not applicable here), then they provided unpublished case decision from NJ (I thought you could only cite case law from the state in which you are being sued or suing someone)

They even suggested I be sanctioned for citing unpublished stuff then they go and do it themselves!

I think they know their case is crumbling and they are making desperate grasps at anything. At trial when I objected to their chain of custody the judge said "well JDB now you just have hearsay on top of hearsay don't you?"

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@RustedIQ

 

Based upon the judge's remarks, it appears he wants to be in your corner if at all possible.

I might very respectfully suggest to the judge that while the cited cases in support of the 3-year SOL are unpublished, the plaintiff has provided NO court ruling, either published or unpublished, that shows the SOL for credit card debt was 6 years before 12-548 was amended to include such debt.

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I agree with @BV80.  It seems you have one of the good JPs here in Arizona.

 

The suggestion of sanctions was just to freak you out.  The judge won't go along with it; not for something as benign as citing an unpublished opinion.

 

While not "binding", published cases from other jurisdictions can be cited to provide perspective of those other jurisdictions.  The problem with this is you can almost always find a ruling favoring either side so it's up to the judge to decide which case holds more weight.  It's always best to have cases from whatever jurisdiction you're in.  IMO, an unpublished case from your jurisdiction holds more weight than a published case from another state, but I don't have any specific foundation for why I think that.  Just a gut feeling.

 

If you haven't, you really should take a read through the last case I posted the link to.  It breaks down the "open" account theory with the end result being that court finding in 2013 (remember, the amendment happened in 2011) that a 3-year SOL applied to a debt opened in 2002 and defaulting in 2009.  Interestingly, because there is no binding caselaw from Arizona, that court relied heavily on cases from other states to draw it's conclusions.  I really think the breakdown from this case is your golden ticket to making the case for a 3-year SOL in your case.

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Thanks all for the info.

I think the judge will most likely dismiss their suit but is giving the JDB the chance to exhaust every one of their arguments and give me a chance to reply to each argument which I have been doing.

Thanks again without this forum I would be clueless. Seems like the JDBs paid somebody to hack debtorboards.com. Consumers must be sticking it to the JDBs.

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