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Calling out for Case Law help Arizona Breach of Contract


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I am filling a MOSJ and it is for Breach of Contract in Arizona yet they never supplied the contract. I need help with case law to site where they are trying to sue for "Breach of Contract" yet they failed to produce the contract or any statements.

Also, anyone have any case law for the Junk Debt buyer never sending anything at all about the debt only the Summons when they filed the Suit? And or anything about when I actually sent them a letter informing them that they never sent me anything about the debt for me to request Validation and then I stated that they needed to provide me with it. Also in my Affirmative Defense on my answer to Summons I reqested full validation. I have posted a lot and gotten a lot of help and if you have any questions here are the links as to what is happening.

http://www.creditinfocenter.com/community/topic/324532-asset-accepnow-midland-msj-lots-of-stuff-need-some-help-az/

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

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First, if you requested validation AFTER you were sued, they may not have to respond. http://www.creditinfocenter.com/community/topic/266614-once-youre-in-court-dving-is-useless-really/ And they certainly do not have to contact you prior to filing a lawsuit. Even if you could make an argument that they did have to do these things, you're talking about FDCPA violations which would apply if you were suing them. These issues have no bearing on their case against you. If you think you have a case against them, your best bet is to contact a consumer rights attorney. If you really do have a case, many will take the case on contingency.

As far as their "breach of contract" claims, they have to produce evidence of a contract, either written or oral. I don't think you're going to find any 'missing contract' caselaw specific to credit card debts. To answer why I think that, I have to give a quick primer on Arizona appeals.

The lowest court in AZ that can create binding caselaw is the Court of Appeals. With very limited exceptions that would not apply here, the Court of Appeals only hears civil lawsuits that were appealed from the Superior Court. Justice Court cases that are appealed go to the Superior Court (below the Court of Appeals) and cannot (again, except for very limited circumstances that do not apply to your case) be appealed any higher. Appealed Justice Court cases do not create caselaw.

So while it's clear JDBs try to slide breach of contract cases with no evidence of a contract past the Justice Courts (and may occasionally be successful), I can't imagine a case with no evidence of a contract would ever make it to the Court of Appeals. The reason being that the JDB probably wouldn't try this stunt in Superior Court, but even if they did, no Superior Court judge would let the case proceed if the defendant raised the issue.

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@janedoenotme

@Harry Seaward

Did Asset's complaint reference the credit agreement in some fashion? If so, where is that credit agreement? Wouldn't that be part of the breach of contract?

Also, where is documentation from WebBank? We know that there's no bill of sale from that bank to Asset. Is the doc that shows purchases from WebBank or Dell?

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@BV80

Did Asset's complaint reference the credit agreement in some fashion? If so, where is that credit agreement? Wouldn't that be part of the breach of contract?

That's just it. The credit card agreement is the contract.

If they produced no evidence of a contract, the court shouldn't even be entertaining their MSJ, whether she objects or not.

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@Harry Seaward

I know that the credit card agreement is the contract. (my blonde moment) What I meant by the complaint referencing the agreement is that, if I recall, it said something to the effect of "per the credit agreement" or "as required by the credit agreement"...something like that.

A contract (physical document) isn't always necessary to establish a contract. I know that you know this, but actions of the parties can also establish a contract.

My point was that because the complaint referenced the agreement in specific way, I'd argue that a copy of that agreement is necessary to support the plaintiff's claim.

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I am not asking about Breach of Contract for me to sue them I am asking in support of my MOSJ. Not sure why you are going on about the other Harry???

Oh, okay, I see where you are going with that Harry. I know that I can't do anything about Validation at this point. I just wonder isn't there something you can do when they never send you anything at all about a debt other then a law suit. Seems they know they are trying to get easy money and I should be able to sue thier asses or get something. After all I have probably lost my business as a result of this. I am at a crutial time and due to this I had to concentrate on it. Long story!

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@Harry Seaward

I know that the credit card agreement is the contract. (my blonde moment) What I meant by the complaint referencing the agreement is that, if I recall, it said something to the effect of "per the credit agreement" or "as required by the credit agreement"...something like that.

A contract (physical document) isn't always necessary to establish a contract. I know that you know this, but actions of the parties can also establish a contract.

My point was that because the complaint referenced the agreement in specific way, I'd argue that a copy of that agreement is necessary to support the plaintiff's claim.

Well they didn't include any copies of statement either....!!!

 

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Geez... You might consider flipping the tables on them and file a Motion for Judgment on the Pleadings. As far as I can tell they haven't provided any evidence in support of even a single claim.

Edit: ok never mind on the motion for judgment on the pleadings.

Well-pleaded allegations will be taken as true but conclusions of law are not admitted.

Young v. Bishop, 88 Ariz. 140, 353 P.2d 1017.
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@janedoenotme

That's what I mean.

The doc they provided that shows charges and payments doesn't seem to be from WebBank. Is it from WebBank? If not, where did Dell get that information? All of the alleged charges and payments on that doc occurred before Dell claims to have purchased the account from WebBank. Therefore, the alleged charges and payments were not made after Dell claims to have purchased the account in question. Where's the documentation from WebBank that shows those same charges and payments?

Since there was obviously no activity on the account after 2010 (?) and Dell did not allegedly purchase the account until 2012, evidence of charges and payments would have to be provided in admissible documentation by WebBank. There is no such documentation.

There is no bill of sale from WebBank to Dell. The chain of assignment is broken. Absent evidence of an assignment of the account in question to Dell Financial Services, there is no evidence that Dell purchased the account. Therefore, there is no evidence that Dell could have sold the account to Asset Acceptance.

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  • 4 weeks later...

Geez... You might consider flipping the tables on them and file a Motion for Judgment on the Pleadings. As far as I can tell they haven't provided any evidence in support of even a single claim.

Edit: ok never mind on the motion for judgment on the pleadings.

Young v. Bishop, 88 Ariz. 140, 353 P.2d 1017.

 

I like what you first said, but now you said don't don't this? Can it hurt after what they have done to me to do a Motion for Judgement and also request compensation for my time etc...

 

And what BV80 said is true... @janedoenotme That's what I mean. The doc they provided that shows charges and payments doesn't seem to be from WebBank. Is it from WebBank? If not, where did Dell get that information? All of the alleged charges and payments on that doc occurred before Dell claims to have purchased the account from WebBank. Therefore, the alleged charges and payments were not made after Dell claims to have purchased the account in question. Where's the documentation from WebBank that shows those same charges and payments? Since there was obviously no activity on the account after 2010 (?) and Dell did not allegedly purchase the account until 2012, evidence of charges and payments would have to be provided in admissible documentation by WebBank. There is no such documentation. There is no bill of sale from WebBank to Dell. The chain of assignment is broken. Absent evidence of an assignment of the account in question to Dell Financial Services, there is no evidence that Dell purchased the account. Therefore, there is no evidence that Dell could have sold the account to Asset Acceptance.

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