janedoenotme

Asset Accep/now Midland MSJ lots of stuff, need some help AZ

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::BigBaby:: Okay. I am going to try and explain what has happened and slow down and breath so that I can get some help from you wonderful people. I will give those of you who haven't read anything the most pertinent facts.

 

Was sued in Sept. 2013. Served and they are saying Breach of Contract. It's for Dell. total now with interest they are stating $3600. After much research I decided to Demand Arbitration. Well, I didn't do it right. I did a MTC and Dismiss. I did not send in my Demand to Jams. I answered the Summons and went to Pre Trial hearing. I had asked for a later date then originally given and got it. On Pre-trial day we both showed up. Here's how that went: The Justice of the Peace basically went into this long song and dance about how neither one of us wanted to spend anymore time which amounts to money in his court and to go to a room and see if we could come to an agreement. He then went on to state that he did not believe it was his obligation to Compel my motion for Arbitration... He said that he would issue a Stay if it commenced.

 

I spoke with the Attorney from Asset and she gave me the Disclosure documents and said they had been mailed. I never received them. I offered to pay her only $250 just to make it go away in monthly payments. They later sent a letter asking for $1000. Meanwhile I did another MTC and Stay instead of Dismiss and I filled the Demand for Arbitration with JAMS. I went to the court to file copies of everything and I was told by the clerk that the case had been vacated. Oh, should mention. I had the paperwork to file my copies of the Demand for Arbitration with me but the Attorney told me that I could not file it until I had a date stamp on it from the court. A bold lie. I had a dead car battery and had to call the court and tell them I was 3 minutes out. That's why I didn't file it before I went into the court. I was so worried they would say I hadn't shown and it would be over. Silly me. They said neither one of us showed as it was.

 

I should state. I used a different Agreement and I did an Affidavit and had it notarized as the correct one and sent that to the Attorney and JAMS. I had also twice before sent letters to Asset Demanding Arbitration without the JAMS paperwork and CMRR both of those. Anyways. This time I filled out the correct JAMS paperwork, attached all the copies and requested a fee waiver and to this date still they have not responded to JAMS. I sent in a check for $25 told JAMS I would pay more if they needed it but she told me they didn't need anything from me as the Agreement I sent in stated that they would pay all of it. NOTE, my first MTC and Dismiss had a different Agreement. It was one that was before they became WeBbank, the new one was from 2010 when I made my last payment. I also, now think that I did not file my Disclosure that day. I was so confused when I left and had all my paperwork that I was going to file with the court in the same file. Yikes, what to do about that.

 

So, here is what I have been told to do. File a Motion to Reclaim the MTC Arbitration and Stay,  along with all my copies. I also want to do a Motion to Strike Affidavit.  I got another Affidavit included with the MSJ it's an Affidavit of Sale of Accounts by Debt Seller it's signed by someone from Dell, says she is the /senior recovery Manager. It goes on to say other things. I am uploading it. It was not included with their original Discovery documents. And at the end of the page there is a Certificate of Conformity that they provided with an Affidavit of Sale of Account by Debt Seller it's signed by someone from Dell, says she is the /Senior Recovery Manager. It goes on to say other things, specifically that they had previously bought the account from WebBank (which they spell wrong) on May 30, 2012. This makes no sense. This was not submitted with the Discovery doc's they gave me. The Bill of Sale that I have that came with the Discovery doc's says that Cit Bank grants all right to WEBBANK, (again, incorrect spelling, the Agreement is WebBank, Asset never provided me with an Agreement), and that date is November 2009. So, from 2/2009 it went from Cit Bank, (account was current then),  to WEBBANK, 9/2009, went BACK TO Dell Financial in 5/2012 just so they could turn around and sell a bunch of computer generated documents to Asset... The date they say they got the account was June 4, 2012. Something is very fishy here! Actually one document says that it was May 29 and another "sworn affidavit" says it was May 30, 2012. So who is "swearing" incorrectly!!! One more notable thing. Back when they served the Summons on me I did a search for Heather Andus and she was no where to be found. Now suddenly she is on LinkedIn and it shows she has worked for Asset for 5.5 years.

 

I just finished going through all my documents. I had a Home Invasion in 2/2011. It was awful. But not only was it emotionally awful, I lost my computers and my files got ripped, dumped and some lost. For the last 4 hours I have been going through them. I found a collection notice from a completely different company delivered to me here in AZ with a date of January 17, 2011 on it. No wonder I missed it it was dated about two weeks prior to the Home Invasion.

 

I also have discrepancies on one of the computer generated list of charges. One list shows three purchases that the other one doesn't....

 

Okay, so help me out please. I need to 1. file the answer to MSJ. I need to do a Motion to Strike the Affidavits. Reclaim my MTC Abritration and Stay. Not sure how to handle the not giving them a copy of Discovery but since I have new things I have found sense then, figure out how to write it up. I also found old back up copies of my return auth on two computers. I want to do some counter claims. They have caused me to loose one job and so many hours of sleep, stress, worry.  And one other very important factor. They have an address in TX, Laredo. On my credit report I just noticed it too but it says on my credit report that the address pertains to a business. I have never lived in TX in my life. And last but not least Asset checked my credit on 1/31/2013 under Fulton, Friedman the Attorney. Then again on 6/05/2013. Why didn't they contact me and if they didn't get the account til June what were they doing checking my credit in Jan???? Asset Reported it and has checked on another credit reporting agency twice. I disputed it but the Credit Reporting Agency did not take it off. I also disputed Dell and they did remove that. The account is also listed as an Open account under type if that matters.

 

I have been as thorough as I could be. Feel free to ask any questions and or point out any of my mistakes and all help is more then welcome! ::ImInLove::cut&pastemsj.docx

 

One last thing. I went with Arbitration because everyone said that they would have to pay suck a huge amount of money and they never would. Now, email again today from JAMS, they are only asking them for $800. Oh, one more thing. They spell my name wrong in the MSJ. In AZ rules of Procedure it says that they have to spell your name correctly.

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Okay, First you do not file discovery with the court . You mail a disclosure statement and discovery to the atty.  When did they file a MSJ??? Before you filed with JAMS or after??  You have only 30 days to respond to it.

Can you upload the affadavit from Dell???  Or is it from Midland.   You have 40 days after your answer to mail the Disclosure statement.  I am no expert on arbitration-----Linda 7 is -----   but the 800 is up front.  There are more fees for them along the way I believe.  And you said they want to settle for 1000.00???   Did you come back with a lower offer??

 

Have they tried to contact you again??   Someone else will chime in here

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Hi, sorry, I used the wrong term, I meant Disclosure!!! They filed the MSJ after I filled with JAMS. I wrote it all in my post. I have until the 6th plus 5 mailing days. The attorney said I had 10. One of the many mistakes.

 

I got the offer from Asset and I have tried to call Midland now 4 times. They have not returned a single phone call. Click on the doc that I put there. I cut and paste all the things they filed. I took my name and the case number out of course.... I answered the Summons way back in Oct. of last year and I was going to give my Disclosure the day of the Pre-trial but then everything got crazy... Then as I stated they said that neither of us showed so it had been vacated. She told me I couldn't file anything further unless I also filed a motion to re-open. I had so much going on with a new job that I went home and tried to keep training. I ended up loosing the job on a review because I had to miss that one day to show up for the Pre-trial hearing, the one that they said I didn't show up for. Also it says in the rules of procedure that if both parties fail to show that the court will dismiss with Prejudice. I tried to find exactly the wording and couldn't again. I will try and find it....

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Forget about counter claims. You have to do that with your answer.

I believe (I will confirm this when I get home) the remedy for the judge denying the motion to compel arbitration is to file an appeal. You only have 14 days from the date the judge rules to do that. It sounds like that ship has already sailed.

Let's start with the basics.

With their initial disclosure, what evidence did they disclose? Did they disclose any witnesses by name? What evidence have they actually provided you with so far?

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Ok, I had a chance to do some research and read their MSJ.

I was correct in that your remedy on a denied motion to compel arbitration is to appeal the decision. See Arizona Revised Statutes 12-2101.01(1). If that decision has been more than 14 days ago you can file a motion to reconsider (which you can then try to appeal within 14 days) or forget about it and move forward with litigation.


Their MSJ has a few flaws. Two are of significant importance. First, this is a 'breach of contract', yet they produced no contract.

Second, the "affidavit of account" signed by Heather Andrus has two major flaws. First it talks about "records" but there are no records attached. Second, she also never claims to have "personal knowledge" as required by Rule 129(e), Justice Court Rules of Civil Procedure (same as Ariz. Civ. P. 56(e) in the citation below).

¶ 18 To carry its burden of persuasion, a plaintiff who seeks summary judgment must submit "undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of its claim." Mahmoodi, 224 Ariz. at 293, ¶ 20, 229 P.3d at 1035. Here, the only evidence submitted in support of the motion was a paralegal's affidavit and its two attachments. Ariz. R. Civ. P. 56(e) states that "upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. In his affidavit, the paralegal made a general avowal that he is the custodian of records and that he personally reviewed records that established the amount of the Allens' indebtedness to Wells Fargo. Those records were neither described nor attached, nor was there anything in the affidavit to provide a reviewing court with the means to evaluate the accuracy of the paralegal's calculation of the amount claimed to be due. ... Without ever referring to any of the specific documents submitted to the trial court, the paralegal summarily asserted that he was familiar with the Allen account "records" that Wells Fargo kept in the ordinary course of business.
¶ 19 The purpose of a custodian's affidavit is to authenticate evidence — such an affidavit is of little value when it does not attach the evidence at issue. And to the extent that the paralegal's role was intended to be akin to that of a fact witness or expert witness, the only personal knowledge he could have offered (as required by Ariz. R. Civ. P. 56(e)) would necessarily have been based on his review and analysis of documents. But the paralegal never claimed to have reviewed any specific documents or to know the manner in which they were prepared and kept. His affidavit, therefore, was sufficient neither to invoke the business-records exception nor to support the motion for summary judgment.

- Wells Fargo Bank, NA v. Allen, 292 P. 3d 195 - Ariz: Court of Appeals, 1st Div., Dept. D 2012
http://scholar.google.com/scholar_case?case=1630618545170099590

Sound familiar? :-)

There are some other issues like the following statement from the DELL Bill of Sale: "this bill of sale is executed without recourse and without any representation or any warranty of collectability or otherwise, express or implied, except as provided in the Account Purchase Agreement." By this DELL is disclaiming the accuracy of the information they are providing to Asset. Asset will probably argue the Account Purchase Agreement provides them a 'buy back' or some other remedy, but that Agreement has not been made a part of the record.


So if I were you, I would start preparing an opposition to their Motion for Summary Judgment and use at least the two (three, if you separately count the two from the affidavit) most significant issues to argue there are at least two (three) genuine issues of material fact that preclude summary judgment. It certainly won't hurt to include the Bill of Sale disclaimer, especially if you end up having to appeal.

Are they claiming interest on this? There is no AZ caselaw on this specific issue, but if DELL did not apply interest following charge-off, it should be argued that this is an implied waiver and that waiver was transferred to Asset and they are therefore precluded from charging interest. I have some AZ case law for a question of waiver being a 'genuine issue of material fact' that should prevent summary judgment.


From personal experience, may I suggest you prepare yourself for the very real possibility that, despite your objections, the Justice Court will grant the MSJ. You will then need to decide what you want to do next. You can appeal to the Superior Court. This costs about $500 but you can get fee waivers and deferrals if you cannot afford the fees. You also get your costs back from Asset if you prevail on appeal.

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Hi Harry. Thank you for all the good information. I have a couple of questions... Your quote,

"I was correct in that your remedy on a denied motion to compel arbitration is to appeal the decision. See Arizona Revised Statutes 12-2101.01(1). If that decision has been more than 14 days ago you can file a motion to reconsider (which you can then try to appeal within 14 days) or forget about it and move forward with litigation."

 

Yes this has been 8 months. I am filing the Motion to Reconsider but I am curious on the which you can then try to appeal... you mean if he turns it down again then appeal within the 14 days? Where everything got so off target for me was when I went to file everything with the court, my Demand for Arbitration with JAMS, and then the clerk told me that it had been vacated.

 

The Affidavit by Heather, there are records attached. I copied only part of one page with all the docs so as not to include all 7 because they all look the same. It is a record of charges along with late fee's and interest. So I can argue the fact that she did not state that she had any personal knowledge. But she says, "To the best of my knowledge and belief and upon review of records in my possession...." So can I still say that she did not state "personal knowledge"?

 

And a few questions about this, "There are some other issues like the following statement from the DELL Bill of Sale: There are some other issues like the following statement from the DELL Bill of Sale: "this bill of sale is executed without recourse and without any representation or any warranty of collectability or otherwise, express or implied, except as provided in the Account Purchase Agreement." By this DELL is disclaiming the accuracy of the information they are providing to Asset. Asset will probably argue the Account Purchase Agreement provides them a 'buy back' or some other remedy, but that Agreement has not been made a part of the record.


So if I were you, I would start preparing an opposition to their Motion for Summary Judgment and use at least the two (three, if you separately count the two from the affidavit) most significant issues to argue there are at least two (three) genuine issues of material fact that preclude summary judgment. It certainly won't hurt to include the Bill of Sale disclaimer, especially if you end up having to appeal. By this DELL is disclaiming the accuracy of the information they are providing to Asset. Asset will probably argue the Account Purchase Agreement provides them a 'buy back' or some other remedy, but that Agreement has not been made a part of the record.


So if I were you, I would start preparing an opposition to their Motion for Summary Judgment and use at least the two (three, if you separately count the two from the affidavit) most significant issues to argue there are at least two (three) genuine issues of material fact that preclude summary judgment. It certainly won't hurt to include the Bill of Sale disclaimer, especially if you end up having to appeal."

 

Can you explain that, I understand the part about representation or any warranty of collectability but not what you are saying about the Account Purchase Agreement provides them a "buy back" or some other remedy.... Any case law in this regard that you are aware of. Again, I understand and in my argument I would say something like... and in accordance with the Bill of Sale from Dell they specifically state and I will quote, "this bill of sale is executed without recourse and without any representation or any warranty of collectability or otherwise, express or implied, except as provided in the Account Purchase Agreement."

 

Also, what about doing a Motion to Strike Affidavit. Isn't that necessary? Also, what about all the supposed sale dates that I mentioned and the fact that I have a letter from a completely different collection company dated from January 2013? I think it's important to argue that it shows there is a question on standing and that nowhere does their paperwork mention that date and company.

 

And, what should I do about not getting a Disclosure out? I need to enter into evidence the things I have. Should I even show a copy of emails that show that items were returned? I also stated in my answer to the summons this, I will copy:

The Defendant reserves the right to add additional affirmative defenses.

Defendant reserves the right to amend Answer to Summons.

COUNTER CLAIMS

The Defendant has several counterclaims but reserves them for Private Contractual Arbitration pursuant the Dell Financial Services/Citi Online Bank contract.

The Defendant reserves the right to add additional counterclaims if proceedings go further in this action.

 

Based on that I wanted to sue them for things to help make this go away. That seems like the quickest way to get them to back down. Do I have anything on them for pulling my credit report back in January when they stated that they didn't buy this account til June? And it was pulled under the attorney's name not Asset.

 

And again, I do think it's important to tell them that I have never lived in TX like the address on their copy of documents from Dell. The ones that show the account charges. And again, in the Disclosure statement and the copies of that there are things that show returns but those are left out of the MSJ.???? I think that those things are important to argue in discrepancies...

 

Thanks and let me know please. Oh, and the judge told me that if he saw that I had filed with JAMS he would issue a stay. Of course there was no court reporter and he isn't there anymore. There is an Judge Pro Tem at the court now. Should they in fact issue a Stay and then Asset does not pay for Arbitration then what? I am aware that more then likely they will grant the summary judgement because after all this is Arizona.... But I believe it is important to get all arguments and paperwork in for the appeal.

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Forget about counter claims. You have to do that with your answer.

I believe (I will confirm this when I get home) the remedy for the judge denying the motion to compel arbitration is to file an appeal. You only have 14 days from the date the judge rules to do that. It sounds like that ship has already sailed.

Let's start with the basics.

With their initial disclosure, what evidence did they disclose? Did they disclose any witnesses by name? What evidence have they actually provided you with so far?

Harry to be specific. I am attaching a copy of what the Disclosure included. I am only attaching one page of the charges but there are three different ones. 1 that shows item numbers and order numbers with amounts and dates. One that shows the dates and the description of all the charges, and a chronological listing of all charges.

 

And, one more thing I wanted to mention. See page two where they state the amount is for $3459.15 at the time it was charged off. This amount is wrong. They make so many mistakes how is anyone suppose to believe anything????copyof disclosure.docx

 

Also, I wasn't going to file my counter claims with this court I was going to file them in federal....

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Hi Harry. Thank you for all the good information. I have a couple of questions... Your quote,

"I was correct in that your remedy on a denied motion to compel arbitration is to appeal the decision. See Arizona Revised Statutes 12-2101.01(1). If that decision has been more than 14 days ago you can file a motion to reconsider (which you can then try to appeal within 14 days) or forget about it and move forward with litigation."

Yes this has been 8 months. I am filing the Motion to Reconsider but I am curious on the which you can then try to appeal... you mean if he turns it down again then appeal within the 14 days? Where everything got so off target for me was when I went to file everything with the court, my Demand for Arbitration with JAMS, and then the clerk told me that it had been vacated.

You would appeal the denied motion to reconsider. It's a legitimate second bite at the apple and because it involves arbitration, IMO, it is appealable. Mind you, I may be wrong, and the fact that it's been 8 months could on its own very likely cause the appellate court to deny your appeal or find the trial court did not err. But, if you really want to go the arbitration route, this the only way I can see you being given another chance to do it.

 

The Affidavit by Heather, there are records attached. I copied only part of one page with all the docs so as not to include all 7 because they all look the same. It is a record of charges along with late fee's and interest. So I can argue the fact that she did not state that she had any personal knowledge. But she says, "To the best of my knowledge and belief and upon review of records in my possession...." So can I still say that she did not state "personal knowledge"?

As far as the "records" are concerned, I would still argue that the Andrus affidavit does not refer to any specific records, a la this statement of the Allen case:

"Those records were neither described nor attached, nor was there anything in the affidavit to provide a reviewing court with the means to evaluate the accuracy of the paralegal's calculation of the amount claimed to be due".

They attached records, but there was no description nor reference to the records attached explaining what they were or why they were significant. Nor was there anything to provide a means to evaluate accuracy of the amount being claimed.

 

And a few questions about this, "There are some other issues like the following statement from the DELL Bill of Sale: There are some other issues like the following statement from the DELL Bill of Sale: "this bill of sale is executed without recourse and without any representation or any warranty of collectability or otherwise, express or implied, except as provided in the Account Purchase Agreement." By this DELL is disclaiming the accuracy of the information they are providing to Asset. Asset will probably argue the Account Purchase Agreement provides them a 'buy back' or some other remedy, but that Agreement has not been made a part of the record.

So if I were you, I would start preparing an opposition to their Motion for Summary Judgment and use at least the two (three, if you separately count the two from the affidavit) most significant issues to argue there are at least two (three) genuine issues of material fact that preclude summary judgment. It certainly won't hurt to include the Bill of Sale disclaimer, especially if you end up having to appeal."

Can you explain that, I understand the part about representation or any warranty of collectability but not what you are saying about the Account Purchase Agreement provides them a "buy back" or some other remedy.... Any case law in this regard that you are aware of. Again, I understand and in my argument I would say something like... and in accordance with the Bill of Sale from Dell they specifically state and I will quote, "this bill of sale is executed without recourse and without any representation or any warranty of collectability or otherwise, express or implied, except as provided in the Account Purchase Agreement."

The "Account Purchase Agreement" is a master agreement that exists between the seller and buyer that governs all transactions between the two parties, usually over an indefinite amount of time. It's usually referred to as a "forward flow" agreement. Most of the time these agreements have a non-disclosure clause and short of a court order, the JDB won't turn these over. The significance of these is that they almost always state the accounts being sold are not guaranteed to be accurate. If the seller will not vouch for the accuracy of the account, how on earth can the JDB swear the info is accurate? (See below for more info on "forward flow" agreements).

 

Also, what about doing a Motion to Strike Affidavit. Isn't that necessary? Also, what about all the supposed sale dates that I mentioned and the fact that I have a letter from a completely different collection company dated from January 2013? I think it's important to argue that it shows there is a question on standing and that nowhere does their paperwork mention that date and company.

You can motion to strike the affidavit, but you have to cite your grounds for doing this. This isn't my strong point, so I'll let someone else chime in if they have some advice.

The sale dates are significant, and if they did not produce the bills of sale for each alleged sale to prove an "unbroken chain of custody", you need to mention this as well. (Did it actually get sold several times, or they just couldn't get their dates right for the one sale from DELL to Asset?)

The "different" collection company is irrelevant unless it was sold to that company. Does the letter from that company say they are the owner of the debt or just that they are collecting the debt for DELL or Asset?

 

And, what should I do about not getting a Disclosure out? I need to enter into evidence the things I have.

You can do it now. File a notice of service with the court and at the same time file a motion for enlargement of time to file your disclosure statement and give all of the reasons for your "excusable neglect". Hopefully the judge will take pity on you.

 

Should I even show a copy of emails that show that items were returned?

What items were returned?

 

I also stated in my answer to the summons this, I will copy:

The Defendant reserves the right to add additional affirmative defenses.

Defendant reserves the right to amend Answer to Summons.

COUNTER CLAIMS

The Defendant has several counterclaims but reserves them for Private Contractual Arbitration pursuant the Dell Financial Services/Citi Online Bank contract.

The Defendant reserves the right to add additional counterclaims if proceedings go further in this action.

Based on that I wanted to sue them for things to help make this go away. That seems like the quickest way to get them to back down. Do I have anything on them for pulling my credit report back in January when they stated that they didn't buy this account til June? And it was pulled under the attorney's name not Asset.

Ok, you're saying you want to use arbitration to settle your counterclaims. What do you think they are going to do when you file your claims in a court?

 

And again, I do think it's important to tell them that I have never lived in TX like the address on their copy of documents from Dell. The ones that show the account charges. And again, in the Disclosure statement and the copies of that there are things that show returns but those are left out of the MSJ.???? I think that those things are important to argue in discrepancies...

Agreed. These are all important issues that should be included in your opposition to their MSJ to show their evidence demonstrates unreliability.

 

Thanks and let me know please. Oh, and the judge told me that if he saw that I had filed with JAMS he would issue a stay. Of course there was no court reporter and he isn't there anymore. There is an Judge Pro Tem at the court now. Should they in fact issue a Stay and then Asset does not pay for Arbitration then what? I am aware that more then likely they will grant the summary judgement because after all this is Arizona.... But I believe it is important to get all arguments and paperwork in for the appeal.

If that judge is not there, you're going to have to sell the current judge on the arbitration or convince him what the other judge told you. Right now you have bigger fish to fry. Asset has a pending MSJ that, if granted, you will lose your case and if you have nothing on the record stating your objections, you're going to have a very difficult time getting the appellate court to take your side. They will ONLY review issues that are on the record. Right now, the record doesn't look good for you and you need to change that.

 

Harry to be specific. I am attaching a copy of what the Disclosure included. I am only attaching one page of the charges but there are three different ones. 1 that shows item numbers and order numbers with amounts and dates. One that shows the dates and the description of all the charges, and a chronological listing of all charges.

And, one more thing I wanted to mention. See page two where they state the amount is for $3459.15 at the time it was charged off. This amount is wrong. They make so many mistakes how is anyone suppose to believe anything????attachicon.gifcopyof disclosure.docx

Also, I wasn't going to file my counter claims with this court I was going to file them in federal....

These are all reasons for the judge to deny their MSJ, but you have to get them on the record to (1) draw it to his attention and (2) provide a solid record for appeal in the event your judge grants their MSJ.

Filing your FDCPA claims in federal is a great idea, but you've already said you wanted to have your counterclaims settled via arbitration and you may have to contend with this. It could get messy and might be the time to bring in a lawyer.

Also, I didn't see where any discovery had taken place. I would use this as yet another reason for the judge to deny Asset's MSJ.

You have a lot of work ahead of you. If you want to try to pursue arbitration, you can ask the court for an extension to file your response to the MSJ reasoning that you are waiting for the court to rule on your motion to reconsider. You're in a pickle though because you only have 30 days to respond to the MSJ and the court can take 60 days to rule on your motion to reconsider re: arbitration (and also your motion for extension to respond to the MSJ, for that matter).

Back to "forward flow" agreements... This girl has compiled a huge collection of these agreements so you can get an idea of what they say.

http://dalie.org/contracts/

I looked for one from DELL and didn't see anything, but there are a few with Asset, so those might give you an idea of the agreement DELL has with Asset.

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Thanks Harry. I am filing the extension, the motion to reclaim arbitration etc and then the opposition to their MSJ... Busy working on it now. I will post for review when done....

 

"If you want to try to pursue arbitration, you can ask the court for an extension to file your response to the MSJ reasoning that you are waiting for the court to rule on your motion to reconsider. You're in a pickle though because you only have 30 days to respond to the MSJ and the court can take 60 days to rule on your motion to reconsider re: arbitration (and also your motion for extension to respond to the MSJ, for that matter)."

 

Okay, I'm confused a little. I want to pursue arbitration and so filing an extension to file my response to the MSJ will extend the 30 days. If it takes the court 60 days to rule on the motion to reconsider and the motion for extension then wouldn't I just state that my extension is based on when they file and answer and in my request for the extension simply state that my objection among others to their MSJ is Arbitration etc....

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I found this on another site and wanted an opinion,

Scienti et volenti non fit injuria - “An injury is not done to one who knows and wills it.”

 

The laws in this country do not provide a remedy for a collection company that knowingly and voluntarily takes on a bad debt and then goes after the debtor in an attempt to collect that alleged debt. What the law says is that an entity cannot place itself in harm’s way and then sue for damages. Thus, “scienti et volenti non fit injuria.” That would be like you standing in front of a speeding car, then suing the driver for damages. You put yourself in harm’s way, you deserve no damages. The collection company bought a debt that was bad, then wanted it paid. Just cite scienti et volenti non fit injuria, and the judge will know what you mean.

Most collection companies know not to go after debts that are past the statute of limitations, but, there are still those who do, so you should know that most states will not allow claims on debts that are more than three years old. In some states, that statute of limitations is four years. You want to research this so that you know what your state allows, because the collection company pursuing you may have waited too long, and you may just have a right to have the suit thrown out on this technicality alone.

As I stated earlier, quite often, the credit card company has made an insurance claim, or taken a tax deduction, and this is known as accord and satisfaction. This renders the debt satisfied and legally, no one can attempt any further to collect this debt. Your collection company knows this, yet they are still trying to take you to court, because they know that if you do not show up, the law then reverses everything, and you end up owing them. So, go to court. Just the fact that you file an intent to defend yourself lets them know that you are aware of your rights, that their best bet is to call off the bluff, and that they should go find some other person to try to fool into entering a contract with them for a debt that is otherwise uncollectible.

 

 

The statue of limitations does not apply to my debt but doesn't this apply because my credit report shows that I disputed Dell back in May of 2012. It also shows that Dell stated, and I will quote, "Status, Account charged off $3118 written off.

 

Then on my credit report in Oct 2013 Dell doesn't show at all. Asset does though. Also, on my credit report with Transunion in November 2013 Dell doesn't show at all. Asset does though.

 

I think I found out that answer. I filled a new dispute thought and I also disputed the address in TX and Experian removed it.

 

In searching for case law on google scholar, some search tips please...

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Okay, I'm confused a little. I want to pursue arbitration and so filing an extension to file my response to the MSJ will extend the 30 days. If it takes the court 60 days to rule on the motion to reconsider and the motion for extension then wouldn't I just state that my extension is based on when they file and answer and in my request for the extension simply state that my objection among others to their MSJ is Arbitration etc....

The problem is the court will probably rule on the MSJ before they even see your motion for enlargement of time. Welcome to Maricopa Justice Court.

The laws in this country do not provide a remedy for a collection company that knowingly and voluntarily takes on a bad debt and then goes after the debtor in an attempt to collect that alleged debt.

This is false. Debt buying is perfectly legal and so is collecting those debts, including using the courts to do so. In addition, you would have had to include this as a defense with you answer if you intended to use it. You can move the court to amend your answer to include this as a defense if you think you have a shot but I can tell you with 99% certainty that you don't.
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The problem is the court will probably rule on the MSJ before they even see your motion for enlargement of time. Welcome to Maricopa Justice Court.

 

So, now I am more confused then before. Also, in wording my Motion to reclaim my MTC arbitration. In the first on I said dismiss. I understand I am suppose to say stay. So do I just title to Motion as a "Motion to Reclaim and Amend MTC Arbitration and Stay"

 

Then I am not sure how to word everything in there....?

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I don't know how to apply a motion to reclaim here so I can't give any personal advice on how to do it. I can tell you that I did a Google scholar search on the phrase in Arizona courts and came up with 0 results. My best guess is that this is not a common practice in Arizona courts.

I'll fall back on my previous suggestion which is to file a motion to reconsider if you really want to pursue arbitration. Was the first motion you filled denied by the court or what was the ruling? Did you get anything in writing from the court? Was there a hearing on the matter that you attended?

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I am just filing a Motion to Reclaim and ammend, MTC and stay and in it I am saying what I stated above. That the court said that On Pre-trial day we both showed up. Here's how that went: The Justice of the Peace basically went into this long song and dance about how neither one of us wanted to spend anymore time which amounts to money in his court and to go to a room and see if we could come to an agreement. He then went on to state that he did not believe it was his obligation to Compel my motion for Arbitration... He said that he would issue a Stay if it commenced.

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Ok, as I said, I don't know how a motion to reclaim works so uless someone else can chime in with some guidance, I'm afraid I can't help you here.

I did find this thread that discusses the assumption of risk ("scienti et volenti non fit injuria") question you brought up earlier.

http://www.creditinfocenter.com/community/topic/311527-injury-in-fact-a-question-on-how-junk-debt-buyers-get-away-with-suing-consumers/

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From various different members and I a submitting my document to a Paralegal friend/associate in CA to review... I can't get the upload to post. I have the browse for file and upload but no where can I click to attach it.... Help???

Okay, got it...

reclaimmtc.docx

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@janedoenotme

BTW, I have never heard of a "motion to reclaim" outside of reclaiming property. I can find no AZ case law with that term. To be safe, you might want to call an AZ attorney to ask if the motion should be titled "motion to reclaim" or "motion to reconsider".

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I would cite A.R.S. 12-1501 & 12-1502 as the legal authority for your original motion to compel and make a point that it is in the best interest of all involved, including the court, to have this matter heard by the private arbitration forum proscribed by the credit card agreement.

Of course that would be if your motion to reclaim would be treated the same as a motion to reconsider and I don't know if these types of arguments are proper on a motion to reclaim.

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I would cite A.R.S. 12-1501 & 12-1502 as the legal authority for your original motion to compel and make a point that it is in the best interest of all involved, including the court, to have this matter heard by the private arbitration forum proscribed by the credit card agreement.

Of course that would be if your motion to reclaim would be treated the same as a motion to reconsider and I don't know if these types of arguments are proper on a motion to reclaim.

 

According to Rules of Civil Procedure in AZ is the same for all pleadings so I don't know what that wouldn't apply. I did send an email to an attorney regarding if it's proper to do a reclaim or reopen...

Take a look at this link, it's a motion to compel in AZ. Let me know if you think any of it should be used...

http://getmansweeney.com/wp-content/uploads/25-Notice-of-Motion-to-Compel-Arbitration.pdf

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@janedoenotme

The document in the link is a MTC in California.

In regard to the attorney, you want to know if you need to motion to reclaim or to RECONSIDER.

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According to Rules of Civil Procedure in AZ is the same for all pleadings so I don't know what that wouldn't apply.

First, you're in Justice Court so you should be following the Justice Court Rules Of Civil Procedure.

Second, and more importantly, different motions serve very different functions. You would not file a motion to dismiss if you wanted to ask the court for more time to respond to the plaintiff's discovery requests. I've never heard of a motion to reclaim and I cannot find any example of it being used in civil lawsuits in Arizona. For all I know, it's used to ask the judge to conduct your cross examination while standing on your head. If you have someone giving you advice to use this type of motion, my advice is to go back to them to find out how it works and if you can use it in Arizona courts for private arbitration and if you can, can you appeal the trial courts denial of that type of motion (most rulings in trial court are NOT appealable - arbitration rulings are one of the exceptions). The whole reason I gave you the advice I did is because I have seen examples of parties successfully appeal a denied motion to reconsider a motion to compel arbitration. If I were in your shoes, that is what I would want my final outcome to be and I would follow the path of what has worked before as opposed to a path that seemingly no one else has traveled before.

Your case stands out because the trial court denied your motion to compel 8 months ago. I would argue there are mitigating factors such as the clerk told you the case had been vacated and you believed that to mean it had been dismissed. Or whatever else you want to say to explain why you did not take action 8 months ago. The argument for the other side will go something like "your honor, since you denied defendant's motion to compel we have foregone additional litigation expenses and have made disclosure on defendant and now that she has seen the evidence we have against her, she has decided to reintroduce the previously denied arbitration ruling.". And they would have a point and you would need to have a good response to that.

Having said all of that, my gut tells me that you need to hire a lawyer if you want to pursue arbitration. There are a lot of missing parts to this story and I think your going to have an impossible time filling them in on your own. Of course you can always abandon your arbitration claim and duke it out in court or try to negotiate a settlement.

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