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Application for default even after I timely answered


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Hi 

Any advice?

here are the basics

Sued by Cavalry

Served July 28th. . .. had 20 days to answer

Provided answer on the 20th day (August 18th) Last day was Aug. 18th based on calculations made following court rules here in Pima. I also sent them the Answer certified mail. The Answer also showed on the court website minutes after paying the fee and filing.

 Certified the mailing on Aug. 20th. 

(Makes me think they did not even look at the court website to see if I answered)

I received a copy from their offices today (Aug 22)

I have ten days excluding weekends and holidays (according to the justice court rules) to Answer. . .. . 

My questions are as follows:

How best to answer this? should I use a format similar to the original answer? 

Did they make a misstep in filing for default. . . .if so. . .how do I best exploit it?

Has anyone had experience in the Pima county justice courts with fighting JDB's?

Any advice or suggestions would be very helpful

Thanks

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the seventeenth was a Sunday. . .According to the Rules concerning Last Day for Arizona. . .if it falls on a Sat, Sun or Holiday you have until the end of the following business day. .. unless I did not read it correctly.

JCPCP Rule 115a

(1) Day of the act or default. In calculating any period of time specified or allowed by these rules, by any local rules, by order of a court, or by any applicable statute, the day of the act or default from which the designated period of time begins to run is not included.

 (3) Last day. The last day of the period is included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday. [ARCP 6(a)]

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Hi All

so here is the disclosure doc from the Plaintiff it also included 12 months of credit card statements.

 

I have read and read from the forums on this site and it would appear that they have failed to actually show ownership of the particular debt in question?

 

How do I best look at this information for the case?

 

The credit card statements are all hearsay yes?

The bill of sale says nothing about the alleged debt specifically?

The page with my name and SS# and a few lines about a debt. . . .anyone could have produced. . ?  will I eventually try to prevent these documents from being used?

 

Are there any hazards to be aware of when providing a disclosure statement in return?

 

Thanks in advance

 

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Hi All

so here is the disclosure doc from the Plaintiff it also included 12 months of credit card statements.

I have read and read from the forums on this site and it would appear that they have failed to actually show ownership of the particular debt in question?

How do I best look at this information for the case?

The credit card statements are all hearsay yes?

The bill of sale says nothing about the alleged debt specifically?

The page with my name and SS# and a few lines about a debt. . . .anyone could have produced. . ? will I eventually try to prevent these documents from being used?

Are there any hazards to be aware of when providing a disclosure statement in return?

Thanks in advance

Ok there are a few things in your favor here. They did not disclose a credit card agreement. They sued for 'breach of contract' and are going to have a difficult time showing you breached a contract without showing the contract they claim you breached.

Second, they did not disclose an affidavit which they will need if they intend to ask for summary judgment.

Third, the bill of sale says the loans were sold:

without recourse and without representation or warranty of any type, kind, character or nature, express or implied, except as specifically provided in the Agreement, and subject to Buyer's and Seller's repurchase rights as set forth in the Agreement.

This means BofA is saying they do not guarantee the accuracy of the debt. If the OC cannot guarantee the accuracy, how can the JDB? The loophole they will try to use is the second part where they talk about "repurchase rights" in the Agreement. The "Agreement" they are talking about is the standing 'forward flow' agreement that exists between BofA and Cavalry that governs the sale of all debts between the two parties. You need to get a hold of that agreement (request it using Discovery) to find out exactly what it says about the repurchase rights. The agreements I have seen by BofA give the buyer 90 days or something to sell debts back under some limited conditions.

Fourth, the bill of sale is signed by someone claiming to be the vice president. I would argue this document is not self-authenticating and no evidence was introduced to certify the signor is who she says she is or that she has the authority to bind her employer to such a contract.

Finally, you're NOT in Maricopa County. This may not seem like a big deal, but if you've read any of the stories from Maricopa, you'll know this could be the best thing you have going for you.

Just an FYI, just because they did not produce or disclose a credit card agreement or an affidavit at this point does not mean they cannot supplement their disclosure later to include these things. You can deal with it if/when it happens, but the idea is that they should have known at this stage if these records are available but failed to disclose them with their initial disclosure statement.

Can you post the complaint and your answer please?

I just spent 18 months battling Cavalry via Ewing in Maricopa County Justice Court. If you have some time, I suggest you read my thread.

http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona-lost-on-plaintiffs-msj/

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One more thing.... You should serve them with your own initial disclosure statement. You have 40 days after your answer was due to serve it on them. Rule 121 of Justice Court Rules of Civil Procedure lay out the requirements. At some point you may be making discovery requests on them, so in the "Exhibits" section of your Rule 121 statement I would include "Any and all of Plaintiff's relevant responses to Discovery requests made by Defendant."

Ok, one more thing. really. ;-) Bookmark this link to the Justice Court Rules of Civil Procedure and spend a couple hours or so reading through it. Ewing blew several of their deadlines when I was dealing with them and I wouldn't have known about it except that I knew the rules.

https://govt.westlaw.com/azrules/Browse/Home/Arizona/ArizonaCourtRules/ArizonaStatutesCourtRules?guid=ND4E6D1300BBC11E2B693E1305F461EC5&transitionType=CategoryPageItem&contextData=(sc.Default)

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What Harry said.

In addition I would study up on what it takes to lay foundation for the records. They did not include an affidavit of debt, but they did mention one. Their witness they listed cannot verify the accurices of the records if you object, as they do not work for the original creditor. You will want to hone in on that--look up some az. case law that shows what they need to lay foundation of the records, @hotinaz may have some, as well as other az posters, and you can find it on google scholar.

So in summary, you are going to challenge standing, doing a document request for the agreement governing the bill of sale since it is referenced on the unnotorized copy of bill of sale. A document request for the credit card agreement governing the account.

you will want to search out what it takes for them to lay foundation for the records, they are heresay, but if they get a witness, they can be an exception. They may rely on their witness of the jdb to do it, it is your job to tell them why that person cannot lay the foundation for those records.

You are gathering information at this point, and when you get closer to trial, you can put it together in the form of a motion in limine, or objection to a specific peice of evidence for trial, or just before trial.

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Thanks Harry and Shellie98
I downloaded a copy of the JCRCP a few weeks ago and have been reading and digesting and then re-reading.
I am curious at the speed they delivered disclosure. . .I answered the original complaint on the 20th day and I had disclosure from them two days later! just interesting as lots of stories on here about JDB taking a long time to initially disclose.
I will upload the original complaint and my answer below. . .
Thanks for the "section of your Rule 121 statement I would include Any and all of Plaintiff's relevant responses to Discovery requests made by Defendant". . I will be sure to add it
I answered 8/17 so I still have loads of time to disclose . . .is there any benefit to answering quickly or slowly?
 
When and how do I object to the use of non-OC witnesses? in my initial disclosure?  
 
 

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Their witness they listed cannot verify the accurices of the records if you object, as they do not work for the original creditor.

Alas, this is not true in Arizona. Our courts regularly accept testimony from witnesses employed by Company A about Company B's business records. It's called 'adoptive business records doctrine'. The only requirement is that Company A must assert that they incorporated Company B's records into their own and that Company A regularly relies on the accuracy of Company B's records.

Here is an example where the Superior Court is applying this doctrine to a Midland case that was appealed up from Justice Court (which would be the case with OP). In fact the Court in this case took it a step further and said that a witness from Company C can testify about records Company B incorporated from Company A.

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/042014/m6268619.pdf

Ms. Walker testified she (1) worked for Midland Credit Management - the account servicer

for Midland Funding -; (2) held the account records for Midland Funding; and (3) was familiar

with its records retention procedures.1 She added she was the custodian of records for Midland

Credit Management and there was no other entity other than Midland Credit Management that

could attest to Plaintiff's records. She added she was familiar with Plaintiff's business retention

practices; had complete access to Plaintiff's business records; and had reviewed the documents

relating to the litigation at hand.

...

On cross - examination, Defense counsel confirmed Ms. Walker worked for Midland Credit Management — a separate company from Midland Funding — and never worked for Midland Funding, Bank of America, or FIA Card Services.

...

Defendant argued Plaintiff’s Exhibits 1, 2, and 4 were all inadmissible hearsay because the

business record exception does not apply where the party testifying about these records is not

employed by the party creating the records. This position is incorrect.

...

Here, Ms. Walker stated she was knowledgeable about how Plaintiff’s records are maintained and kept since she worked for Midland Credit Management — the entity charged with keeping the records — and Plaintiff was only a buying entity.

...

After reviewing these Exhibits, this Court finds the trial court did not abuse its discretion when it

determined the Exhibits were admissible.

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hello all

So I am still with plenty of time to send my disclosure to Plaintiff

Are there any pro's or con's to sending this now versus closer to the 40 day mark?

Are there any hazards to be aware of when providing a disclosure statement in return?

any other specifics I should include such a intent to summons their claimed witnesses?

Also since the JDB is not sending anything with proof of receipt, is there a way to demand communication this way so they can not claim to mail something and it gets lost?

Thanks

* my head is full!!*

:(

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You can count on them claiming they never got something you send (even if you send it certified) and you can count on them claiming to send you things that they didn't. You cannot demand they do anything the rules don't require of them and sending things certified mail is something that is not required.

I can't think of any danger in sending your initial disclosure now. The rules let you supplement them any time you find new evidence.

The only hazard in making initial disclosures is admitting to something or providing evidence that proves their case.

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You can count on them claiming they never got something you send (even if you send it certified) and you can count on them claiming to send you things that they didn't. You cannot demand they do anything the rules don't require of them and sending things certified mail is something that is not required.

That is very true. It is SOP not just for debt collection cases. I have seen it in small personal injury cases and even in big product liability and mass torts cases, where big defense firms do that kind of stuff just to put sand in the legal gears.

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  • 1 month later...

mighty nice disclosure statement but the beginning pretty much tipped your hand. So I would recommend preparing for the following: a court reporter at trial, opposing summary judgment motion(yes it is coming because they like paper trials), then their motion for a telephonic witness must be opposed.

 

You need to get the forward flow purchase agreement during discovery, it will make their witnesses lies exposed.

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