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Midland Funding - Maricopa Justice Court


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I'm helping my elderly parents who of coursed ignored letters/phone calls, not really understanding what could happen.  They did not tell me anything until they received a MSJ.  My father does not recall ever having the acct with OC.  The three statements from OC that Midland provided have an address they never lived at.  We did Disclosure Statement, responded to MSJ, filed a motion to strike affidavit of their midland credit legal specialist and hand delivered discovery requests which are due Sept 22.  They provided 3 statements, a computer generated document with "field data", Bill of Sale of a pool of loans (no Loan Sale Agreement or Loan Schedule to reference any account) & of course their affidavit of legal specialist.  Their disclosure indicates one of four "custodian of records" with their address listed & phone # listed as that of the attorneys.  Those individuals did not sign the affidavts, but looking up their names, they all sign te same affidavits & work for Encore or Midland Credit.  They also filed a motion to allow witness to testify by phone.  We objected, but I imagine it will be allowed from what I have seen.

 

I just found out out Justice Court requires MSJ to be filed at least 90 days prior to trial.  Trial is December 8, 2014, but I have seen where other JDB have filed out of time & I think have been successful?  I was waiting for discovery to file & then came accross the 90 day rule today.  Has anyone been before Justice Judge Keith Russell?  How does he look at these and what have his rulings been to JDB summary judgment motions?  I find it hard to beleive that pro se defendants are required to follow rules of procedure & evidence, but the same standard does not appear to apply to justice judges from what I have read.  Would you file a motion for leave to file a MSJ out of time & then just file it?  Or file motion for continuance since we don't have discovery responses?

 

Second thing is I beleive I read on a thread that in AZ the SOL runs from the date of the last payment on the account.  I know the 3 yr/6 yr arguments.  So far no signed account/agreement though they are suing for breach of contract.  The last payment they allege is 7/16/2008 with the 6 yr credit card statute being enacted 7/20/2008.  If I file MSJ, is it worth a shot? 

 

Sorry for the length and I appreciate anyone's input.

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Hi, First off great to help your parent's .  After they got served (they did get served right?) did anyone file an answer to the complaint within 20 days of being served??

Second  they do not need a signed agreement (did they send any agreement?)

 

Third it would help if you go tothe pinned section and answer the questions so we know who what why and when.

 Yes, they have to file a MSJ against you 90 days before trial.  Yes, even if they filed it wrongly you still have to answer it.

 

No you probably should NOT file your own MSJ, Try to  upload the one they sent you.  Has there been a pretrial conference or one scheduled???

Are you in justice court ?

And the 6 year SOL took place 7/2011. Did you bring up affirmative defenses in the answer or even file an answer.  These are things we need to know to help

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Since you have already filled your objection to the MSJ, there's not really much else you can do until you get the judge's decision. Hopefully you made all of the right arguments so that even if the judge grants it you will have solid grounds for appeal.

In Arizona, pro se litigants are expected to know and adhere to the rules.

The party filling the MSJ bears the burden of proof. Do you have some way to prove their claims are false? Based on your post, the most compelling thing I see you could use would be the address, and the only way to prove someone DIDN'T live somewhere would be via an affidavit. I personally wouldn't hang an MSJ solely on an affidavit.

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  • 2 weeks later...

My gut tells me they won't win on their MSJ - could be wrong, but we have the right objections for appeal. 

 

We filed a supplemental disclosure statement.  My sister and her husband actually lived at that residence.  She will testify that my parents never lived there, never received mail there, etc.  She is 100% positive that she did not receive any mail for them.  She lived there for quite a length of time, prior to and years after the alleged charge off of the account.  She will be a good witness even though she is related. 

 

He received discovery responses from Midland's attys today.  Nothing answered, nothing produced.  Objections, denials, etc.  Denials to all requests for admissions with evasive reasons & objections  They were late and after sending them a good faith letter & filing a second notice of req for adm, they responded. 

 

Do we send another "good faith" letter or call?  Both or neither and just file motion to compel?  Are there any examples out there?  My father asked, how can they produce 15 pages of no answers and objections?    Very frustrating.

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Hi, First off great to help your parent's .  After they got served (they did get served right?) did anyone file an answer to the complaint within 20 days of being served??

Second  they do not need a signed agreement (did they send any agreement?)

 

Third it would help if you go tothe pinned section and answer the questions so we know who what why and when.

 Yes, they have to file a MSJ against you 90 days before trial.  Yes, even if they filed it wrongly you still have to answer it.

 

No you probably should NOT file your own MSJ, Try to  upload the one they sent you.  Has there been a pretrial conference or one scheduled???

Are you in justice court ?

And the 6 year SOL took place 7/2011. Did you bring up affirmative defenses in the answer or even file an answer.  These are things we need to know to help

They were served correctly & filed answer timely.  By agreement, do you mean credit card agreement?  He doesn't recall having this one.  Midland filed MSJ, we responded, they replied.  Wait & see.  Filed a motion to strike affidavit of their legal custodian.  There was a pretrial conference.  Trial is December 8.

It is in Justice Court.  He filed the answer before I knew about any of this.  SOL does not apply, the charge of was November 2008, last statement August 2008 & supposedly the last payment was July 2008 by telephone though he said he has never made a telephone payment on any account ever.  His answer did not include the affirmative defenses I would have included, but my understanding is lack of standing is jurisdictional so it can be brought any time prior to trial & in fact, if not successful prior to trial, should be able to move on that after plaintiff rests, if they have not established ownership of the account.

 

Needing help regarding all their objections & evasive answers to discovery requests, including Requests for Admissions in which they denied everything but their reasons are bs.  Can we file a motion to compel?  Or do we have to send another good faith letter & call?  They were late so one was sent as well as a second notice of req for adm.  They then responded with 15 pages of objections and non-answers.

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They were served correctly & filed answer timely.  By agreement, do you mean credit card agreement?  He doesn't recall having this one.  Midland filed MSJ, we responded, they replied.  Wait & see.  Filed a motion to strike affidavit of their legal custodian.  There was a pretrial conference.  Trial is December 8.

It is in Justice Court.  He filed the answer before I knew about any of this.  SOL does not apply, the charge of was November 2008, last statement August 2008 & supposedly the last payment was July 2008 by telephone though he said he has never made a telephone payment on any account ever.  His answer did not include the affirmative defenses I would have included, but my understanding is lack of standing is jurisdictional so it can be brought any time prior to trial & in fact, if not successful prior to trial, should be able to move on that after plaintiff rests, if they have not established ownership of the account.

 

Needing help regarding all their objections & evasive answers to discovery requests, including Requests for Admissions in which they denied everything but their reasons are bs.  Can we file a motion to compel?  Or do we have to send another good faith letter & call?  They were late so one was sent as well as a second notice of req for adm.  They then responded with 15 pages of objections and non-answers.

I keep going round in my head whether we can argue SOL, prior to trial.  I think it is a pretty weak argument and probably shouldn't bother.   According to the August 2008 statement, the last payment by phone was made July 16, 2008. Charge off was November 2008 and they applied a late fee on November 9, 2008.  Since the revised statute went into effect July 20, 2011, I just don't see being successful on that from what I've read of some AZ cases.

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Since you have already filled your objection to the MSJ, there's not really much else you can do until you get the judge's decision. Hopefully you made all of the right arguments so that even if the judge grants it you will have solid grounds for appeal.

In Arizona, pro se litigants are expected to know and adhere to the rules.

The party filling the MSJ bears the burden of proof. Do you have some way to prove their claims are false? Based on your post, the most compelling thing I see you could use would be the address, and the only way to prove someone DIDN'T live somewhere would be via an affidavit. I personally wouldn't hang an MSJ solely on an affidavit.

Am I right that they are usually successful in having their legal specialists appear telephonically for trial?  On the Disclosure STatement they listed one of four individuals that are the custodian of records and with their address listed c/o the attorneys office.  Then they filed a motion to appear telephonically because they are all in Minnesota, cost prohibitive, etc.

.  

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My gut tells me they won't win on their MSJ - could be wrong, but we have the right objections for appeal. 

 

We filed a supplemental disclosure statement.  My sister and her husband actually lived at that residence.  She will testify that my parents never lived there, never received mail there, etc.  She is 100% positive that she did not receive any mail for them.  She lived there for quite a length of time, prior to and years after the alleged charge off of the account.  She will be a good witness even though she is related. 

 

He received discovery responses from Midland's attys today.  Nothing answered, nothing produced.  Objections, denials, etc.  Denials to all requests for admissions with evasive reasons & objections  They were late and after sending them a good faith letter & filing a second notice of req for adm, they responded. 

 

Do we send another "good faith" letter or call?  Both or neither and just file motion to compel?  Are there any examples out there?  My father asked, how can they produce 15 pages of no answers and objections?    Very frustrating.

 

If the arguments against an MSJ falls on deaf ears (which is common in Maricopa Justice Court), unfortunately it doesn't matter how good the arguments are.

 

Did you file the objection to the MSJ before or after you made the discovery requests?

 

Unanswered Requests for Admission in Justice Court require that you send a "reminder" giving another 10 days.  See Rule 126(c ).  On failure to answer Requests for Production and interrogatories, the party making the original request goes straight to a motion to compel.  Rule 127(a )(1).

 

 

They were served correctly & filed answer timely.  By agreement, do you mean credit card agreement?  He doesn't recall having this one.  Midland filed MSJ, we responded, they replied.  Wait & see.  Filed a motion to strike affidavit of their legal custodian.  There was a pretrial conference.  Trial is December 8.

It is in Justice Court.  He filed the answer before I knew about any of this.  SOL does not apply, the charge of was November 2008, last statement August 2008 & supposedly the last payment was July 2008 by telephone though he said he has never made a telephone payment on any account ever.  His answer did not include the affirmative defenses I would have included, but my understanding is lack of standing is jurisdictional so it can be brought any time prior to trial & in fact, if not successful prior to trial, should be able to move on that after plaintiff rests, if they have not established ownership of the account.

 

Needing help regarding all their objections & evasive answers to discovery requests, including Requests for Admissions in which they denied everything but their reasons are bs.  Can we file a motion to compel?  Or do we have to send another good faith letter & call?  They were late so one was sent as well as a second notice of req for adm.  They then responded with 15 pages of objections and non-answers.

 

 Yes, a motion to compel would be appropriate to ask the court to make them answer your requests.

 

I keep going round in my head whether we can argue SOL, prior to trial.  I think it is a pretty weak argument and probably shouldn't bother.   According to the August 2008 statement, the last payment by phone was made July 16, 2008. Charge off was November 2008 and they applied a late fee on November 9, 2008.  Since the revised statute went into effect July 20, 2011, I just don't see being successful on that from what I've read of some AZ cases.

This judge in this case spent a lot of time establishing that credit cards are "open" accounts subjecting them to a 3-year SOL.

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

 

 

The same judge in this next case rejected the 3-year SOL defense on 4 different grounds, one of which is that a 6-year SOL was in effect at the time the lawsuit was filed.  A reading of A.R.S. 12-505(A ) seems pretty clear that when a statute changes to lengthen the limitation period, an action barred by the pre-existing law is not "revived" by the amendment of the law.  I don't know why the judge in this case gave the reason that "a 6 year statute of limitations [was] in effect at the time Plaintiff filed suit" when A.R.S. 12-505 makes it clear that the new law is subordinate to the prior law.  It may have something to do with the fact that there were three other strikes against this particular defendant - one of which is that she did not cite the SOL as a defense at any point prior to her objection to the plaintiff's MSJ, and the appellate court ruled that she therefore waived the defense.

 

(Notice that the previous case was filed after the law was passed in April 2011, but BEFORE it was put into effect in July.)

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/062014/m6332916.pdf

 

Neither of these cases are "binding" on any court in Arizona, but when a Justice Court case is appealed in Arizona, it goes to the same court that made these rulings.  The reason I'm posting them is so you can see the reasoning used by the court that will be handling your appeal.  Pay special attention to the mistakes made by the defendant in the second case and do not repeat them.

 

 

Am I right that they are usually successful in having their legal specialists appear telephonically for trial?  On the Disclosure STatement they listed one of four individuals that are the custodian of records and with their address listed c/o the attorneys office.  Then they filed a motion to appear telephonically because they are all in Minnesota, cost prohibitive, etc.

.

Yeah, the judge will probably grant that motion.  You should oppose it anyway and argue that a telephonic appearance prejudices you because you cannot directly observe the witnesses body language, you cannot know if they are being coached by someone and also because Arizona courts will not have jurisdiction over a witness committing perjury outside of Arizona.

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