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Midland in AZ, need some help quickly please...


janedoenotme
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Hi, I was sued by Asset back in Oct. 2013 from a Dell/Citi account. We had a pre-trial date and both parties showed up. The judge asked us to try and come to an agreement and I offered to pay them $250 "just to make it go away." I did not admit that it was my debt. I had also filed a MTC Arbitration and Dismiss. I have since learned that I should have file a MTC and Stay. The Judge came back with: "The Court does not find sufficient cause to compel arbitration or dismiss the case. Parties may elect to pursue arbitration if they believe they are entitled to do so. Upon receiving notice that the matter is in arbitration the Court will defer proceedings pending the outcome of such."  BTW I am in Arizona. The Justice of the Peace ruling he gave me states this: The court does not find sufficient cause to compel arbitration or dismiss the case. Parties may elect to pursue arbitration if they believe they are entitled to do so. Upon receiving notice that the matter is in arbitration the Court will defer proceedings pending the outcome of such.

 

I then did my Demand for Arbitration and requested the creditor forward the required fee's and or Deposit as it stated in the Dell Financial Terms and Conditions. I went up to the court house to file this copy along with a copy of the check I sent in and was then going to file to ask the judge to reconsider the MTC and put stay instead of dismiss.  Instead what happened when I went there I was told me that it had been vacated because neither party showed up for our court date. And that I couldn't file anything unless I wanted to do a Motion to Re-open it.??  We both showed up so this was a mistake.

 

Today I am filing my answer to a MSJ that I just received from them. I am answering that since I demanded Arbitration, and I am attaching all paperwork along with my Certified Mailing Receipts. Lack of Standing. I am also filing a MTR Arbitration and Stay but wondered if anyone could point me to some good case law in Arizona. I originally went to file the copies of my Demand for Arbitration at the Court and was told that it had been vacated since we didn't show up for the hearing, (Not true we were there) at that time they told me I could not file anything since it had been vacated and so I didn't at that time. But now plan to do so along with my answer to MSJ. I have to get it in the mail today. I am on the last day.

 

At this point I am pretty sure that I will loose because that has been pretty standard here in Arizona. I just want everything filed so that I can appeal it and hopefully I can get an attorney for cheap to help me because this has taken up so much time and I am pretty lost. I am hoping that they will also maybe accept a small settlement. The total amount now is at $3800.

 

I have a question though based on something that I read. I never received a copy of the Agreement from Midland. I did an Affidavit and copied one I found online with my Demand for Arbitration. I read this,

 

 

"Statute Of Frauds ALL credit agreements have to comply with the Statute Of Frauds (sof) or they are "void" and unenforeable. It sets very specific standards that the Plaintiffs (oc to single/multiple assignees) are unable to compy with.Google Northstar Capital vs. Haring ,  It will be your "Could'a had a V-8" moment. It's the smoking gun to ensure mod or response to msj.

 

Two key points: there has to be in evidence a valid signed credit agreement  OR a valid un-signed one that you received before or at the time you accessed the credit. sof requires specific, actual physical documents/evidence to be before the court to even "maintain an action" or it's a prima facie violation of it. Keep it simple, and on point. 

Here's how I see what's actually going on in JDB world:

1. Complaint listing JDB as Plaintiff served upon you.

2. At this point, the actual "owner" of the debt either has the goods on you and standing to sue (see SOF) or does not.

3. If number 2 is prima facie in the Complaint, and there are no other legal affirmative defences, you owe on an enforeable credit agreement. Next to impossible, though, for a JDB to prove it's the owner of a valid credit agreement debt.

4. Since oc did not send out  a 1099-C income statement to you after your account was written off as a "bad debt", the oc establishes that the account had the legal effect of being a "gift"...not enforceable by anyone against anyone.

5. OC's reduce all of these "write-offs" to "final field data" (usually destroying all SOF evidence, if there even was any...remember "gift" status!).

6. Final Field Data (ffd) is nothing more than cyber information input onto a pool or data base and becomes part of its irs record for tax purposes. jdb think they smell financial, collectible, receiveable  blood in the water and negotiate valid assignment of rights to these ffd entries via purchase agreements/bill of sell, etc. All good. But what was actually "assigned" to the jdb? 

7. ffd are cyber entries that normally reveal someone's: name, address, ss#, credit date, credit balance, date of last pymt, and credit account number. That's it!

8. jdb, like Midland Funding, have another credit collection company, Midland Credit Management, print off the individual ffd page. From there, it inputs the ffd into its company form statement. Then they produce from it an intimidating-looking "NOTICE OF NEW OWNERSHIP AND PRE-LEGAL REVIEW" document that has ffd and oc, MCM new account number and pymt due date.

9.  Remember, so far no prima facie compliance with the sof. In fact, the evidence is getting farther and farther away from meeting that governing standard!

10. jdb now hires a mal particing firm to consolidate all of this "inadmissable hearsay" into an elaborate, confusing, legal-looking law suit that's actually a frivoulus one and a violation of Bar ethics, FTC, and compells MOD and Attorney General to investigate.

11. So, who is the actual owner of SOF-approved evidence with standing to sue? In most cases, no one! And "no one" can sue or "assign" a right to sue to an alleged legal assignee! Completely frivolous law suit! And the attorney knows it! So should your Attorney General and the Bar. "

 

Since I never received a copy of the Agreement from them even thought I asked for this I wanted to get some feedback is this is something good to use?? Also wanted to know if anyone had a very inexpessive Attorney they could refer me to. Or even a Paralegal to help me with documents.... Thanks in advance!

 

After reading some more things I am thinking that I should file a MET because they never sent me the Agreement, or chain of command, signed contract etc... I am just kind of putting anything together at this point to stall for time I really need help and I'm all over the place...

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The only state that allows the use (even then on a limited basis) of the Statute of Frauds as a defense is Utah. It will NOT fly in AZ.

 

Two key points: there has to be in evidence a valid signed credit agreement 

 

Not for a credit card account there does not need to be one because it never existed.  If they can show you applied for the account and used it that is enough.  The reality is the card agreement states that by accepting and using the card to make purchases you agree to the terms.

 

You would be far better off attacking Midland's standing to sue than to pursue this snipe hunt.

 

I recognized that italicized text and you do NOT want to follow that advice.  It is spurious at best and barely likely to work in UT let alone AZ.

 

For a response to a Motion for Summary Judgment you only need argue that there are issues of triable fact that preclude the court granting a MSJ.  Save your actual defenses for the trial.

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Thanks Clydesmom. What are the issues of triable fact? And do you mean that I can just file my answer and in that answer simply state that I have Demanded Arbitration and also the "triable fact"?

 

Do you think that I should even point out that they never supplied an Agreement at all?  Also, the debt went from two other collection agency's then to them but they only show their bill of sale and an Affidavit of Account. All these things were they are saying so and so is familar with so and so's business blah blah blah. Of course no one that they would physically be calling to court to testify.

 

Is there anything anywhere about these JDB and the mass purchasing that I can say Please some help!!!!

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Some suggestions of facts in dispute:

 

Midland's standing to sue after multiple sales of the debt through several entities.  Lack of proof of ownership due to multiple transfers of ownership.  Amount of debt and how calculated.  If you are even the correct debtor.  Continuing to pursue a civil suit after the defendant elected arbitration under the card agreement as presented by the Plaintiff.  Oh wait, there is no card agreement?  Then how do you know I have an account.  You see where I am going?  You want to raise at least 3 issues that preclude the court from granting a MSJ so you can go to trial, force arbitration, or Midland dismisses with prejudice and drops the whole thing.

 

If you didn't file a timely answer to the suit to start with you may get slammed with a MSJ for failing to answer timely.  You ALWAYS answer first THEN compel arbitration in a separate motion.

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I see, what I was going to do was file the Motion to Reclaim my Motion to Compel Arbitration. I was going to put it in the mail the same day as my answer... Today. I'm looking for some help on wording and case law for AZ and Arbitration...

 

And, how to state multiple sales without admitting it's mine?

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Update. I had to get some work done but now I am back. I am breathing a little bit easier because even though the MSJ states that I have 10 days to file my answer I really have 30 in Arizona. The idiots put that I only have 10. Nice Try!!!

 

I am reading about filing a Motion to Strike the Affidavit of Account. I then read that someone said not to do "strike" but to do Motion to Preclude. Any comments? Also, this is from Jul 2013. It is Asset Acceptance and when I first got this back in 2013 I did a Google Search For Heather Andrus and she was not anywhere listed. Now suddenly she is listed on LinkedIn as having been employed by Asset for 5 years. I just so don't trust them. Doesn't that seem a little bit suspicious?

 

I am wondering if no one is helping me because I'm such a space cadet and or I need to repost the original case information again. I am also starting to question the Demand for Arbitration due to the fact that JAMS is only asking them for $800. They now are saying that I owe them 3800 with all the interest they have added.

 

Please tell me anyone what I need to do to get some more help and I will try and not be such a space cadet. I just have too much in my head and not enough time for all of it.... ::drowning::

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First breathe deeply.  Again.  You are in the arbitration forum and maybe if you posted in the Is there a lawyer in the house  section, there will be more help.  Start a thread there and just give the details of the case up to now.

 

I know it is alot more work but you will probably receive more help.  Also, one question, after you were served did you file an answer within 20 days???   Even with an arbitration request I believe you still have to file your answer in 20 days after being served

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