fight2win

Won before, but here we go again....

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Hello!  I'm located in AZ.

 

Here we go again....

 

I was sued by CACH LLC last year and the JDB dropped the case.  The debt was around 2K.  This week I received another summons from CACH for my only other debt on my CR, and it's for around 1K.  Seriously!!!

 

Last time my case was dropped (by the JDB) before having to appear in court - just at our initial sit-down meeting.  I had followed all the proper procedures suggested on this wonderful forum, and I know that is why I received the outcome that I did.

 

I need to file my answer to this new complaint, but my brain is a bit rusty and I have a baby due any moment.  I need to get this first important step taken care of because I do not have time for this nonsense right now.

 

Attached to the Summons:

 

1) Typical Credit Card Agreement, unsigned, etc. -  Exhibit A.  

 

2) Affidavit of Sale and Cert. of Debt. signed by an employee of FIA Card Services (the debt was for B of A, and I believe it is now FIA Card Services....).  The original charge-off date was less than 2 years ago.  This affidavit was signed a few months ago.  She claimes to have personal knowlege manner and method, blah blah blah.  She is located on the other side of the U.S.

 

The Complaint: (possible answers are in bold - suggestions welcome)

 

I.  This Court has legal authority over the ……This Justice Court precinct…is proper venue…

 

(ADMIT:  Defendant admits the statements contained in paragraph I).

 

II. Plaintiff is a limited liability company duly …..Plaintiff alleges that the debt was caused by Defendant.

 

(DENY:  Defendant denies the statements in paragraph II and is without knowledge of whether or not the original account holder issued credit to the Defendant and requests Plaintiff to provide proof).

 

III. Plaintiff is the real party of interest, and is pursuing this claim pursuant to it being the rightful owner of the Debt.

 

(DENY:  Defendant denies the allegations contained in paragraph III of the Complaint as there has never been any agreement or contract between the Plaintiff and Defendant).

 

IV.  Defendants are residents of _____, in AZ….. and Plaintiff alleges that the obligations of all individual Defendants are both community and separate obligations.

 

(ADMIT:  Defendant admits the statements contained in paragraph IV).

 

V.  The true names of DOES I-V, are unknown to Plaintiff at this time, ….. Plaintiff is informed, believes and thereon alleges that each of these Defendants is in some manner responsible for the events and happenings stated herein.

 

(DENY:  Defendant denies the allegations contained in paragraph V. of the Complaint as Defendant is without information or knowledge sufficient to form an opinion).

 

VI.  The Defendant entered into a contract with the original creditor, who is now known as FIA Card Service….A copy of the standard agreement is attached hereto as Exhibit A ….. Plaintiff has purchased Defendants account and has been assigned or otherwise transferred all rights thereto.

 

(DENY:  Defendant denies the allegations contained in paragraph III of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth of the assignment.) * or do I use answer to VII?

 

VII. The Defendant breached the contract by failing to maintain monthly payments on the balance due and owing pursuant to the contract.

 

(DENY:  Defendant denies the statements in paragraph VII and is without knowledge of whether or not the original account holder issued credit to the Defendant and requests Plaintiff to provide proof).

 

VIII.  The current amount of $1**** is presently past due and owing.

 

(DENY:  Defendant denies the allegations in paragraph VII and lacks knowledge as to how much money, if any is due and asks the Plaintiff to provide proof). 

 

IX. Plaintiff has made all demands and performed all other acts necessary to mature said claim against Defendant which Defendant has neglected and failed to pay. 

 

(DENY:  Defendant denies the allegations contained in paragraph IX.  of the Complaint as Defendant is without information or knowledge sufficient to form an opinion).

 

X.  This action arises of out an express or implied contract which provides for reasonable attorney's fees and costs.  Plaintiff may be entitled to recover its reasonable fees and costs pursuant to the Agreement.  Also, pursuant to A.R.S ______ the Court is authorized to award the prevailing party……and costs. 

 

(DENY:  Defendant denies the statements in paragraph X. and is without knowledge of whether or not the original account holder issued credit to the Defendant and requests Plaintiff to provide proof).

 

__________________________________________________________________________________________________

 

(my Answer/Affirmative Defenses are in bold) - last time my husband filed a standard answer via the Court online document; we did not submit our own legal document, so I'm unsure of this particular step). 

 

Do I need to answer each one? 

Is this my first step?  

Is there anything else I should file along with this document?

 

I appreciate the assistance!

 

 

 

 

 

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FORGOT TO COMPLETE THIS FIRST:

 

1. Who is the named plaintiff in the suit?
CACH, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
JOE PAZZUTO


3. How much are you being sued for?
$1K-ish

4. Who is the original creditor? (if not the Plaintiff)
Fia Card Services, N.A. 

5. How do you know you are being sued? (You were served, right?)
Summon by process server

6. How were you served? (Mail, In person, Notice on door)
In person, asked them to leave at door

7. Was the service legal as required by your state?
Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
None

9. What state and county do you live in?
Maricopa, AZ

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
not outside SOL

11. What is the SOL on the debt?
have to look it up, but definitely not outside SOL

12. What is the status of your case? Suit served? Motions filed?
Was just served summons, have not filed answer yet (see post above this one)
 
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
No

14. Did you request debt validation before the suit was filed?
No

15. How long do you have to respond to the suit?
20 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
Complaint (BREACH OF CONTRACT)

Exhibit A - Credit Card Agreement (standard printable doc., no signature)

Affidavit of Sale and Cert. of Debt  (the Affiant is employed by FIA Card Services)

 

 

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I'll give some feedback on your answer later this evening, but is there any chance your last payment was before July 2011?

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One more thing... Were any purchases made on the account while you were married? And was your husband named in the lawsuit?

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Yes, there is a chance.  Account was opened in 7/2007 and charged-off in January 2012.  Still, it's only been a few years.  And thank you - you helped me before.

I'll give some feedback on your answer later this evening, but is there any chance your last payment was before July 2011?

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One more thing... Were any purchases made on the account while you were married? And was your husband named in the lawsuit?

Yes, there were purchases made while we were married.  My husband is listed as John Doe _____, DOES I-V (whatever that means).  I was not sure how to respond to the question that mentions him, as this card was in my name only (not that it matters).

 

However, last time I was sued by CACH, I was the person doing all the research, etc. in fighting this, and I went to court alone (didn't think we both needed to be there).  Big mistake on my part, although the outcome was ok.  

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My comments are in red.

 

Hello!  I'm located in AZ.

 

Here we go again....

 

I was sued by CACH LLC last year and the JDB dropped the case.  The debt was around 2K.  This week I received another summons from CACH for my only other debt on my CR, and it's for around 1K.  Seriously!!!

 

Last time my case was dropped (by the JDB) before having to appear in court - just at our initial sit-down meeting.  I had followed all the proper procedures suggested on this wonderful forum, and I know that is why I received the outcome that I did.

 

I need to file my answer to this new complaint, but my brain is a bit rusty and I have a baby due any moment.  I need to get this first important step taken care of because I do not have time for this nonsense right now.

 

Attached to the Summons:

 

1) Typical Credit Card Agreement, unsigned, etc. -  Exhibit A.  

 

What is the date on the credit card agreement?  Is it within the period of time that you used the account?

 

2) Affidavit of Sale and Cert. of Debt. signed by an employee of FIA Card Services (the debt was for B of A, and I believe it is now FIA Card Services....).  The original charge-off date was less than 2 years ago.  This affidavit was signed a few months ago.  She claimes to have personal knowlege manner and method, blah blah blah.  She is located on the other side of the U.S.

 

Is there a bill of sale?

 

The Complaint: (possible answers are in bold - suggestions welcome)

 

Can you post the complaint with your personal info removed?  My comments are based on what you have posted here and may be inappropriate relative to what the complaint actually says.

 

I.  This Court has legal authority over the ……This Justice Court precinct…is proper venue…

 

(ADMIT:  Defendants admits the statements contained in paragraph I).

 

This is fine as long as you are certain the venue and jurisdiction are proper.

 

II. Plaintiff is a limited liability company duly …..Plaintiff alleges that the debt was caused by Defendant.

 

(DENY:  Defendants deny the statements in paragraph II and are without knowledge of whether or not the original account holder issued credit to the Defendant and requests Plaintiff to provide proof).

 

III. Plaintiff is the real party of interest, and is pursuing this claim pursuant to it being the rightful owner of the Debt.

 

(DENY:  Defendants deny the allegations contained in paragraph III of the Complaint as there has never been any agreement or contract between the Plaintiff and Defendants).  Defendants are without knowledge or information to form a belief as to the remaining claims made by Paragraph III and therefore deny the same.

 

IV.  Defendants are residents of _____, in AZ….. and Plaintiff alleges that the obligations of all individual Defendants are both community and separate obligations.

 

(ADMIT:  Defendant admits the statements contained in paragraph IV).

 

Defendants admit they are residents of _____.  Defendants deny an obligation to Plaintiff exists.  Defendants are without knowledge or information to form a belief as to the truth of the remaining claims of Paragraph IV and therefore deny the same.

 

V.  The true names of DOES I-V, are unknown to Plaintiff at this time, ….. Plaintiff is informed, believes and thereon alleges that each of these Defendants is in some manner responsible for the events and happenings stated herein.

 

(DENY:  Defendant denies the allegations contained in paragraph V. of the Complaint as Defendant is without information or knowledge sufficient to form an opinion).

 

I think there is an important part of the complaint paragraph missing here re: your "John Doe" husband.  I need to see the entire claim to know how to tell you to respond.  Basically you have to admit that you are married and provide his name, assuming they are claiming he exists as your husband.

 

VI.  The Defendant entered into a contract with the original creditor, who is now known as FIA Card Service….A copy of the standard agreement is attached hereto as Exhibit A ….. Plaintiff has purchased Defendants account and has been assigned or otherwise transferred all rights thereto.

 

(DENY:  Defendants deny the allegations contained in paragraph III VI of the Complaint as Defendants are without information or knowledge sufficient to form an opinion as to the truth of the assignment claims made in this paragraph) * or do I use answer to VII?  <--- I don't know what you mean by this.

 

VII. The Defendant breached the contract by failing to maintain monthly payments on the balance due and owing pursuant to the contract.

 

(DENY:  Defendant denies the statements in paragraph VII and is without knowledge of whether or not the original account holder issued credit to the Defendant and requests Plaintiff to provide proof).  Defendants are without knowledge or information to form a belief as to the truth of the claims alleged by Paragraph VII and therefore deny the same.

 

VIII.  The current amount of $1**** is presently past due and owing.

 

(DENY:  Defendant denies the allegations in paragraph VII and lacks knowledge as to how much money, if any is due and asks the Plaintiff to provide proof).   Defendants deny owing any amount of money to Plaintiff.  Defendants are without knowledge or information to form a belief as to the truth of the remaining claims alleged by Paragraph VIII and therefore deny the same.

 

IX. Plaintiff has made all demands and performed all other acts necessary to mature said claim against Defendant which Defendant has neglected and failed to pay. 

 

(DENY:  Defendants deny owing a debt to Plaintiff.  Defendants deny the remaining allegations contained in paragraph IX.  of the Complaint as Defendants are without information or knowledge sufficient to form an opinion).

 

X.  This action arises of out an express or implied contract which provides for reasonable attorney's fees and costs.  Plaintiff may be entitled to recover its reasonable fees and costs pursuant to the Agreement.  Also, pursuant to A.R.S ______ the Court is authorized to award the prevailing party……and costs. 

 

(DENY:  Defendant denies the statements in paragraph X. and is without knowledge of whether or not the original account holder issued credit to the Defendant and requests Plaintiff to provide proof).  Defendants deny a contract exists between Plaintiff and themselves.  Defendants are without knowledge or information to form a belief as to the truth of the remaining claims from Paragraph X and therefore deny the same.

__________________________________________________________________________________________________

 

(my Answer/Affirmative Defenses are in bold) - last time my husband filed a standard answer via the Court online document; we did not submit our own legal document, so I'm unsure of this particular step). 

 

Do I need to answer each one?

Yes

Is this my first step?

Yes

Is there anything else I should file along with this document?

Probably not, although your Rule 121 statement is due within 40 days of filing your answer.  With the little one on the way, you might want to get your statement done and sent out with your answer or shortly thereafter.  (You don't file the actual statement with the court.  You serve it (by mail is fine) on the other party and then file a Certificate of Service with the court to establish that you did serve it and when.)

I appreciate the assistance!

 

 

 

 

If you want to include affirmative defenses, they need to be stated under a separate heading.  I would use Statute of Limitation, Accord and Satisfaction, Estoppel, Laches, Unclean Hands and Waiver.  A simple statement for each defense should be enough to prevent you from waiving these defenses. An example would be "Upon information and belief, Defendants assert that the Statute of Limitations has expired on Plaintiff's claims."

 

Spend some time reading and understanding the rules that govern Arizona Justice Courts.  As a pro se, you are required to follow the rules the same as a lawyer.

https://govt.westlaw.com/azrules/Browse/Home/Arizona/ArizonaCourtRules/ArizonaStatutesCourtRules?guid=ND4E6D1300BBC11E2B693E1305F461EC5&transitionType=CategoryPageItem&contextData=%28sc.Default%29&bhcp=1

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Yes, there is a chance.  Account was opened in 7/2007 and charged-off in January 2012.  Still, it's only been a few years.  And thank you - you helped me before.

Assert the Statute of Limitations as an affirmative defense in your answer then.  They will have to claim a last payment at some point and have to support their claim.

 

There are two angles here.  First, BofA uses Delaware as their Choice of Law in their agreements, and the SOL in Delaware is 3 years.  It's likely a tricky sell, but you might have a judge that will entertain the idea.  The other angle is that prior to July 2011, Arizona courts routinely viewed credit cards as an "open account" and subjected to them to the 3-year SOL from Arizona Revised Statutes §12-543.  A.R.S. §12-505 prohibits a cause of action barred by previous law from being revived by amendment of the law.  If your last payment was prior to July 2011, you can argue the cause of action accrued under the old law and pursuant to §12-505, you should be 'grandfathered' under the old law.  As long as you assert a SOL defense in your answer, you don't need to worry about making the full on arguments for now (unless you want to file a motion to dismiss instead of an answer).  They will come up at summary judgment and/or trial.

 

 

Yes, there were purchases made while we were married.  My husband is listed as John Doe _____, DOES I-V (whatever that means).  I was not sure how to respond to the question that mentions him, as this card was in my name only (not that it matters).

 

However, last time I was sued by CACH, I was the person doing all the research, etc. in fighting this, and I went to court alone (didn't think we both needed to be there).  Big mistake on my part, although the outcome was ok.  

 

DOES (as in plural "John/Jane Does") I-V means they are reserving the possibility that there were other people that are responsible for repaying the card.  If it was only in your name, and you weren't married to anyone other than your current husband, there won't be any other "Does".

 

You have a couple of directions you can go here.  Arizona is a community property and debt state.  If the account was used while you were married, it's assumed to be a community debt and community property can be levied to repay the community debt.  If it was a separate debt, however, only one spouse's separate property (or that spouses "contribution" to the community) can be levied to repay the separate debt.

 

To argue it's a separate debt, the onus is on you to show that the marital community did not benefit from your use of the card.  This would be a very rare situation and if your husband so much as ate a banana that you bought with the card, you cannot claim it was a separate debt.

 

The other thing is (and this depends on how they named your husband and if they alleged you were married) they cannot take community property (both spouses wages are community property) to repay a debt in which only one spouse was named in a lawsuit.  If you answer the lawsuit by yourself (hubby doesn't sign the answer), they have to separately serve him to make him a party and then he will be defending as a separate party.  CACH just may screw the pooch on this and never properly serve him.  If it goes all the way to final judgment like this, they cannot take money from either of you (remember, community property - your money is his money and vice versa).

 

Spudnuts, Inc. v. Lane, 676 P. 2d 669 - Ariz: Court of Appeals, 2nd Div. 1984

 

we are faced with a due process violation by the addition of a party-defendant who was not served in the action and who had no chance to answer and defend. Service of process on appellant is not sufficient to permit the obtaining of a personal judgment against his wife or the community. A.R.S. § 25-215(D) provides that if a plaintiff wants to hold a marital community accountable for an obligation, both spouses must be sued jointly. A judgment against one spouse does not bind the community.

...

It is fundamental where service of process does not comply with the statutory requirements, the court does not obtain jurisdiction over the person.  No attempt was ever made to serve Gail Lane in this case. Gail Lane's liability was not adjudicated by the trial court and she cannot be subjected to liability by her addition as a party-defendant after the case has been decided on appeal.

 

As you can imagine, this can go south pretty fast if you make a mistake or they try to get a default against him and the court doesn't understand what is going on and gives CACH their default.  If you're the least bit squeamish, I'd just move forward with him assuming service when you got served.

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Harry:

 

  • I revised the Complaint with the accurate wording.  I left your suggested revisions in red.  
  • The last payment made on the account was 5/9/11 (as dated on my credit report).
  • I will read through the rest of what you noted, but wanted to get this part posted up.  
  • As always, thank you for the time you take to offer your help.

 

Attached to the Summons:

 

1) Typical Credit Card Agreement, unsigned, etc. -  Exhibit A.  

 

What is the date on the credit card agreement?  Is it within the period of time that you used the account?  THE ONLY DATE REFERENCED IS THE YEAR:  2007.  IT IS A PRINTOUT THAT IS 48 PAGES LONG.

 

2) Affidavit of Sale and Cert. of Debt. signed by an employee of FIA Card Services (the debt was for B of A, and I believe it is now FIA Card Services....).  The original charge-off date was less than 2 years ago.  This affidavit was signed a few months ago.  She claimes to have personal knowlege manner and method, blah blah blah.  She is located on the other side of the U.S.

 

Is there a bill of sale?  NO

 

The Complaint:

 

I.  This Court has legal authority over the subject matter of the claim(s) presented herein and over the above-named Defendant.  This Justice Court precinct is the proper venue for the presentment of this Complaint.

 

(ADMIT:  Defendants admit the statements contained in paragraph I).

 

This is fine as long as you are certain the venue and jurisdiction are proper.  I BELIEVE IT IS PROPER VENUE.

 

II. Plaintiff is a limited liability company duly organized and existing under the laws of the State of Colorado.  Plaintiff alleges that the debt which is the subject of this Complaint was caused by the  Defendant. Plaintiff reserves the right to amend this Complaint as discovery progresses or new information comes to light.

 

(DENY:  Defendants deny the statements in paragraph II and are without knowledge of whether or not the original account holder issued credit to the Defendant.)

 

III. Plaintiff is the real party of interest, and is pursuing this claim pursuant to it being the rightful owner of the Debt.

 

(DENY:  Defendants deny the allegations contained in paragraph III of the Complaint as there has never been any agreement or contract between the Plaintiff and Defendants Defendants are without knowledge or information to form a belief as to the remaining claims made by Paragraph III and therefore deny the same.)

 

IV.  Defendants are residents of _____, State of Arizona and Plaintiff alleges that the obligations of all individual Defendants are both community and separate obligations.

 

(ADMIT: Defendants admit they are residents of _____.  Defendants deny an obligation to Plaintiff exists.  Defendants are without knowledge or information to form a belief as to the truth of the remaining claims of Paragraph IV and therefore deny the same.)

 

V.  The true names of DOES I-V, are unknown to Plaintiff at this time, but leave of this Court is respectfully requested to appropriately amend this Complaint when the true names have been ascertained.  Plaintiff is informed, believes and thereon alleges that each of these Defendants is in some manner responsible for the events and happenings stated herein.

 

I think there is an important part of the complaint paragraph missing here re: your "John Doe" husband.  I need to see the entire claim to know how to tell you to respond.  Basically you have to admit that you are married and provide his name, assuming they are claiming he exists as your husband.  REVISED - EXACT WORDING

 

VI.  The Defendant entered into a contract with the original creditor, who is now known as FIA Card Services, N.A. entitling Defendant to make purchases on credit.  A copy of the standard agreement (“Agreement”) is attached hereto as Exhibit A and incorporated herein by reference.  Plaintiff has purchased the Defendant’s account and has been assigned or otherwise transferred all rights thereto.

 

(DENY:  Defendants deny the allegations contained in paragraph VI of the Complaint as Defendants are without information or knowledge sufficient to form an opinion as to the truth of the claims made in this paragraph.)

 

VII. The Defendant breached the contract by failing to maintain monthly payments on the balance due and owing pursuant to the contract.

 

(DENY:   Defendants are without knowledge or information to form a belief as to the truth of the claims alleged by Paragraph VII and therefore deny the same.)

 

VIII.  The current amount of $1**** is presently past due and owing.

 

(DENY:  Defendants deny owing any amount of money to Plaintiff.  Defendants are without knowledge or information to form a belief as to the truth of the remaining claims alleged by Paragraph VIII and therefore deny the same.)

 

IX. Plaintiff has made all demands and performed all other acts necessary to mature said claim against Defendant which Defendant has neglected and failed to pay. 

 

(DENY:  Defendants deny owing a debt to Plaintiff.  Defendants deny the remaining allegations contained in paragraph IX.  of the Complaint as Defendants are without information or knowledge sufficient to form an opinion).

 

X.  This action arises of out an express or implied contract which provides for reasonable attorney's fees and costs.  Plaintiff may be entitled to recover its reasonable  fees and costs pursuant to the Agreement.  Also, pursuant to A.R.S ______ and ___________ the Court is authorized to award the prevailing party its reasonable attorney's fees and costs. 

 

(DENY:  Defendants deny a contract exists between Plaintiff and themselves.  Defendants are without knowledge or information to form a belief as to the truth of the remaining claims from Paragraph X and therefore deny the same.

_____________________________________________________________________________________________________________________________

 

 

Is there anything else I should file along with this document?

Probably not, although your Rule 121 statement is due within 40 days of filing your answer.  With the little one on the way, you might want to get your statement done and sent out with your answer or shortly thereafter.  (You don't file the actual statement with the court.  You serve it (by mail is fine) on the other party and then file a Certificate of Service with the court to establish that you did serve it and when.)  

 

I still have my rule 121 Statement from the previous suit filed by this JDBA.   

 

The FACTUAL BASIS FOR DEFENSE was:

 

1) Plaintiff can't prove account stated (have exact lingo used for all of these; I can post when I prepare that doc)

2) Plaintiff cannot prove a claim for breach of contract because it does not have evidence of offer, etc.

3) Defendants dispute they entered into contract with Plaintiff - Plaintiff has failed to produce any contract signed or otherwise

4) Plaintiff lacks standing to sue (Bennet v. Napolitano referenced)

 

** I will read through what you suggested.

 

 

 

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Assert the Statute of Limitations as an affirmative defense in your answer then.  They will have to claim a last payment at some point and have to support their claim.

 

There are two angles here.  First, BofA uses Delaware as their Choice of Law in their agreements, and the SOL in Delaware is 3 years.  It's likely a tricky sell, but you might have a judge that will entertain the idea.  The other angle is that prior to July 2011, Arizona courts routinely viewed credit cards as an "open account" and subjected to them to the 3-year SOL from Arizona Revised Statutes §12-543.  A.R.S. §12-505 prohibits a cause of action barred by previous law from being revived by amendment of the law.  If your last payment was prior to July 2011, you can argue the cause of action accrued under the old law and pursuant to §12-505, you should be 'grandfathered' under the old law.  As long as you assert a SOL defense in your answer, you don't need to worry about making the full on arguments for now (unless you want to file a motion to dismiss instead of an answer).  They will come up at summary judgment and/or trial.

 

 

 

DOES (as in plural "John/Jane Does") I-V means they are reserving the possibility that there were other people that are responsible for repaying the card.  If it was only in your name, and you weren't married to anyone other than your current husband, there won't be any other "Does".

 

You have a couple of directions you can go here.  Arizona is a community property and debt state.  If the account was used while you were married, it's assumed to be a community debt and community property can be levied to repay the community debt.  If it was a separate debt, however, only one spouse's separate property (or that spouses "contribution" to the community) can be levied to repay the separate debt.

 

To argue it's a separate debt, the onus is on you to show that the marital community did not benefit from your use of the card.  This would be a very rare situation and if your husband so much as ate a banana that you bought with the card, you cannot claim it was a separate debt.

 

The other thing is (and this depends on how they named your husband and if they alleged you were married) they cannot take community property (both spouses wages are community property) to repay a debt in which only one spouse was named in a lawsuit.  If you answer the lawsuit by yourself (hubby doesn't sign the answer), they have to separately serve him to make him a party and then he will be defending as a separate party.  CACH just may screw the pooch on this and never properly serve him.  If it goes all the way to final judgment like this, they cannot take money from either of you (remember, community property - your money is his money and vice versa).

 

Spudnuts, Inc. v. Lane, 676 P. 2d 669 - Ariz: Court of Appeals, 2nd Div. 1984

 

As you can imagine, this can go south pretty fast if you make a mistake or they try to get a default against him and the court doesn't understand what is going on and gives CACH their default.  If you're the least bit squeamish, I'd just move forward with him assuming service when you got served.

 

 

Harry:

 

  • Yes, it appears this debt is outside the SOL (dated 5/9/11).  I will use that as an Affirmative Defense, as it appears to fall under the Delaware law and Arizona law (prior to July 2011), as you indicated.
  • I will certainly just include my husband; I don't want to take any chances.  When I appeared for the pre-trial conference, I really dropped the ball last time in not having him attend.  JDBA told me he could file a judgement right then and there for him not showing up.  Instead, he postponed, but later dropped the case.

So, my task at hand is to:

  1. Re-read the AZ laws
  2. File an answer to the court asserting Statue of Limitations as an Affirmative Defense (please forgive me, I am unclear as to whether I file a separate heading including the other Affirmative Defenses you mentioned: Accord and Satisfaction, Estoppel, Laches, Unclean Hands and Waiver).

Thank you. :)

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Ok I have a couple more things to add and change and I will do it later this evening. The highlights are that their complaint never once said anything about the debt being originally owned by FIA or anyone else (unless I missed something). They haven't produced a bill of sale showing how they magically became the owners of an account using a BofA credit card agreement. Of course they haven't made disclosure yet so these things could come but you want to make sure you address these things in your answer.

Also, read these two cases to get an idea of what you need to argue early and often.

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

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

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Ok I have a couple more things to add and change and I will do it later this evening. The highlights are that their complaint never once said anything about the debt being originally owned by FIA or anyone else (unless I missed something). They haven't produced a bill of sale showing how they magically became the owners of an adjoint using a BofA credit card agreement. Of course they haven't made disclosure yet so these things could come but you want to make sure you address these things in your answer.

Also, read these two cases to get an idea of what you need to argue early and often.

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

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

 

Ok, will do.  Thank you.

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Ok I have a couple more things to add and change and I will do it later this evening. The highlights are that their complaint never once said anything about the debt being originally owned by FIA or anyone else (unless I missed something). They haven't produced a bill of sale showing how they magically became the owners of an adjoint using a BofA credit card agreement. Of course they haven't made disclosure yet so these things could come but you want to make sure you address these things in your answer.

Also, read these two cases to get an idea of what you need to argue early and often.

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

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

 

Ok, will do.  Thank you.

 

 

  • Account stated vs. open account:  burden of proof is on the Plaintiff 
  • Statute of Limitations defense needs to be used immediately (in lieu of answer as a Motion to Strike?  Or along with my answer?). But I also read that SOL is not a preferred defense of the courts?  

 

I read both completely, and understand the gist, but sometimes need it put in layman's terms.  I'll read them a few more times.

 

 

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Was there an affidavit from CACH?

Can you post the full text of the FIA affidavit please?

 

 

AFFIDAVIT OF SALE AND CERTIFICATION OF DEBT

 

STATE OF NORTH CAROLINA

CITY OF GREENSBORO

FIA Card Services, N.A.

Accountholder: Jane Doe                                                Account No(s), 1234567687, 12345676776

 

The undersigned, _____________, being duly sworn, states and deposes as follows:

 

1.  That Affiant is employed by FIA Card Services, N.A. in the position of Bank Officer, has personal knowledge of the manner and method by which FIA Card Services, N.A. maintains its normal business book and records, and is duly authorized to make this affidavit.

 

2.  That the contents of this affidavit are believed to be true and correct based on the computerized and hard copy books and records of FIA Card Services, N.A., maintained in the ordinary course of business, with the entries in them having been made at or near the time of the transaction recorded.

 

3.  That FIA Card Services, N.A. is a wholly owned subsidiary of Bank of America Corporation and is successor in interest to MBNA America Bank NA, Fleet Bank (RI), and Bank of America, National Association (USA).

 

4.  That the account records of FIA Card Services, N.A. show that:

 

a.  Account number ____________________, formerly account number ______________________, was opened on 07/24/200_ by JANE DOE.

 

b.  Pursuant to the terms of the card member agreement with FIA Card Services, N.A., there was due and payable $1234.56 as of the charge off date of 01/31/2012.

 

c.  Said agreement and account was, on 04/19/2013, sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise or satisfaction of the said claim, and as of that date, there was due and payable on this Account the sum of $1234.56, with all just and lawful offsets, payments, and credits having been allowed.

 

d.  There were no uncredited, payments, just counterclaims or offsets against said debt when sold.

 

5.  That as a result of the sale of said account, CACH, LLC and/or its authorized Agent, has complete authority to settle, adjust, compromise and satisfy same, and that FIA Card Services, N.A. has no further interest in the account for any purpose.

 

6.  That the original contract in this matter may not be available, or no longer accessible to Affiant.

 

DATED THIS ______ day of MAY 27, 2014

 

(Signed by Affiant as Bank Officer)

Notarized (resides in N.C.)

 

 

Harry:  There was no affidavit from CACH

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Also, to clarify:  after looking at my credit report

 

date closed: 8/8/11

date paid:  5/9/11

 

but the updated date is 4/19/2013 - apparently the date that CACH purchased the debt (charge-off date).

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@BV80 Does CACH need a bill of sale when they have the affidavit they provided from the OC (look back a couple posts)? And does CACH need testimony from its own custodian?

My guess answers are 'no' and 'yes' respectively but I wanted to get your thoughts.

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Ok, here are some more thoughts I had.

 

 

What is the date on the credit card agreement?  Is it within the period of time that you used the account?  THE ONLY DATE REFERENCED IS THE YEAR:  2007.  IT IS A PRINTOUT THAT IS 48 PAGES LONG.

 

Not really meaningful at this point, but if this goes to trial, you can ask if the witness if he knows if there were any revisions to the agreement.  It's an argument against his credibility and also to establish that the terms may have changed and the agreement they provided is no longer in effect.

 

Is there a bill of sale?  NO

 

Considering the affidavit they have from FIA, they may not need a bill of sale.  I'll be honest - I'm concerned about the affidavit.  It appears to cover all of the bases.  The one loophole you may have is the fact that there is almost certainly a standing 'forward flow' agreement that governs the sale of all accounts over an indefinite period of time.  This agreement will have a lot of disclaimers as to the accuracy of the data being transacted with the sale of the accounts.  Here are two different ones.  The one from 2010 is probably the one (or very similar to one) that was in effect for the sale of your account.

 

http://dalie.org/wp-content/uploads/2014/02/2009.08.11-FIA-Card-Services-to-CACH-LLC.pdf

http://dalie.org/wp-content/uploads/2014/02/2010.04.14-FIA-to-CACH-LLC-04-14-2010-lots-of-disclaimers.pdf

 

Take a look at page 16 of the second one (2010) starting at section 9.4 and read through to the next page.  BofA flat out says the loans are sold "as is" and specifically disclaims the "validity" of the loans and the "accuracy or completeness of any information provided by the seller to the buyer" including "any sums shown".  So...  if BofA refuses to guarantee the accuracy of ANY of the information, how on earth can CACH assert the debt is valid?

 

The rules of evidence to allow business records into evidence lists 5 qualifications that must be met.  Most people focus on the first 4.  The last one says "neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness."  Now, if the "source" of the information says it will not guarantee the accuracy of anything it provided, that to me just screams a lack of trustworthiness.

 

 

 

The Complaint:

 

II. Plaintiff is a limited liability company duly organized and existing under the laws of the State of Colorado.  Plaintiff alleges that the debt which is the subject of this Complaint was caused by the  Defendant. Plaintiff reserves the right to amend this Complaint as discovery progresses or new information comes to light.

 

(DENY:  Defendants deny the statements in paragraph II and are without knowledge of whether or not the original account holder issued credit to the Defendant.) Defendants deny owing a debt to the Plaintiff.  Defendants are without knowledge or information to form a belief as to the truth of the remaining claims made by Paragraph II and therefore deny the same.

 

IV.  Defendants are residents of _____, State of Arizona and Plaintiff alleges that the obligations of all individual Defendants are both community and separate obligations.

 

(ADMIT IN PART AND DENY IN PART: Defendants admit they are residents of _____.  Defendants deny an obligation to Plaintiff exists.  Defendants are without knowledge or information to form a belief as to the truth of the remaining claims of Paragraph IV and therefore deny the same.)

 

V.  The true names of DOES I-V, are unknown to Plaintiff at this time, but leave of this Court is respectfully requested to appropriately amend this Complaint when the true names have been ascertained.  Plaintiff is informed, believes and thereon alleges that each of these Defendants is in some manner responsible for the events and happenings stated herein.

 

Did they ever specifically allege you were married?

 


 

I still have my rule 121 Statement from the previous suit filed by this JDBA.

 

This should be fine.  You probably don't have anything to disclose anyway.

 

 

The FACTUAL BASIS FOR DEFENSE was:

 

1) Plaintiff can't prove account stated (have exact lingo used for all of these; I can post when I prepare that doc)

Per the cases I posted earlier, you want to assert that this is an "open account".  Tthere is a whole legal analysis that takes place in the one case re: "open accounts" and there is some significance placed on the fact that the defendant disputed the debt with the OC.  Since you did not dispute, I don't know how this will be analyzed.  Make the argument anyway!

2) Plaintiff cannot prove a claim for breach of contract because it does not have evidence of offer, etc.

They have the credit card agreement, so that will be used as the agreement.  The argument here should be that you never entered into an agreement with CACH and "upon information and belief", they cannot establish they are entitled to recover any debt that may have ever been owed to BofA.

3) Defendants dispute they entered into contract with Plaintiff - Plaintiff has failed to produce any contract signed or otherwise

It's common for credit card contracts to not be signed so don't burn too many calories on this approach.

4) Plaintiff lacks standing to sue (Bennet v. Napolitano referenced)

 

 

Somewhere in your answer you need to include your affirmative defenses.  Set it off with a heading "Affirmative Defenses" then list each one, something like this:

 

In and for their FIRST affirmative defense, Defendants assert that upon information and belief, applicable Statutes of Limitations have expired on any claim of Plaintiff's that may have ever existed.

 

In and for their SECOND affirmative defense, Defendants assert that upon information and belief, ...

 

And so on...

 

 

 

 

  • Account stated vs. open account:  burden of proof is on the Plaintiff 
    The burden of proof is less significant than you making the "open account" argument al a the case I linked to.
     
  • Statute of Limitations defense needs to be used immediately (in lieu of answer as a Motion to Strike?  Or along with my answer?). But I also read that SOL is not a preferred defense of the courts?  
    You can go two directions with the SOL.  You can file a motion to dismiss for expired SOL instead of an answer or you can just put the SOL in your answer as an affirmative defense.  The important thing is it has to be asserted right out of the gate.

    It's true courts are supposed to prefer to hear cases on their merits but SOL is a legitimate defense.  What the court was saying in the second case was that if there is gray area on the SOL and all else being equal, the court should opt to hear the case on its merits.  Your right on the cusp of SOL.  Your last payment was May making your first missed payment in June and the amended law went into effect in July.  CACH will argue the "cause of action" did not accrue until the account was charged off, and one of those two cases actually discusses this, and IIRC, the court seemed to lean towards charge-off as the date certain for the cause of action.  For these reasons, I personally believe the court should reject your SOL argument, but who cares what I think.  Your judge might see it differently. :-)

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Have you considered taking this to arbitration?  For a thousand bucks, I can't imagine will CACH follow you into arbitration on this.

 

I have a 2006 BofA agreement and the only arbitrator they name is NAF, and NAF no longer takes consumer credit card disputes but the agreement I'm looking at says they can choose another "nationally recognized independent arbitration organization".  There is AAA and JAMS.  I don't know what the fees are for either of these, but as far as payment of the fees go, the agreement says:

"At your written request, we will advance any arbitration filing fee, administrative and hearing fees which you are required to pay to pursue a Claim in arbitration. The arbitrator will decide who will be ultimately responsible for paying those fees. If you file a claim against us, in no event will you be required to reimburse us for any arbitration filing, administrative or hearing fees in an amount greater than what your court costs would have been if the Claim had been resolved in a state court with jurisdiction."

 

So basically you wouldn't have to pay a thing to start the arbitration.

 

I'm starting to think this is the way to go...

 

 

 

P.S. in the 'forward flow' agreement from 2010 I posted earlier, on page 8 there are 3 or 4 paragraphs dedicated to arbitration.  CACH is contractually obligated to allow you to initiate arbitration pursuant to the credit card agreement.

 

"Buyer (CACH) acknowledges and agrees that any claim, dispute or action against an Obligor (you) of a Loan shall be resolved by arbitration or litigation pursuant to the terms and conditions of the underlying loan agreement (credit card agreement) between Seller and such Obligor".

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@Harry Seaward

 

@Harry Seaward

 

My argument against the affidavit would be based on the following statements:

 

4.  That the account records of FIA Card Services, N.A. show that:


a.  Account number ____________________, formerly account number ______________________, was opened on 07/24/200_ by JANE DOE.

b.  Pursuant to the terms of the card member agreement with FIA Card Services, N.A., there was due and payable $1234.56 as of the charge off date of 01/31/2012.

c.  Said agreement and account was, on 04/19/2013, sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise or satisfaction of the said claim, and as of that date, there was due and payable on this Account the sum of $1234.56, with all just and lawful offsets, payments, and credits having been allowed.

d.  There were no uncredited, payments, just counterclaims or offsets against said debt when sold.

 

 

Where's the documentation to support the above?   The bank officer references records of FIA that purport to show a - d, yet there's no documentation to support those claims. 

 

There's no bill of sale to show that an alleged sale took place.  Have they provided any credit card statements?  If not, then so far, there's no documentation to prove that the account in question ever existed, that it was opened and utilized by the defendant, and that the claimed balance is accurate. 

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Harry,

 

((thank you))

 

  • Arbitration:  I read through all of your responses, and logically speaking, it does make sense to request arbitration for this particular lawsuit. The cost to arbitrate would be as much or almost as much as the $ amount they are seeking (although, like you said, you don't know exactly how much those fees are depending on the arbitrator they select). 

But regardless, if I went to arbitration and lost, I would not be held responsible for the cost of arbitration AND the judgement amount?    

 

I know nothing about the process of arbitration.  Would I still file an answer, affirmative defenses, etc. and follow the standard process, or does that pretty much change the game?  Am I more at risk of losing if we go that road?

  • Opting Not to Arbitrate:

 

AFFIDAVIT - I do recall the business records rules of evidence and the whole "as-is"/accuracy defense.  If the OC can't guarantee how accurate the records are, how can CACH?  That seems to be a back-pocket item for court, if it goes that far?  Or is that an affirmative defense to include in my answer?  Do I come out of the gate with each and every defense I plan to use?  

 

OPEN ACCOUNT  - Yes, I did understand that whole ordeal with the open account suit, and that the defendant claimed to have disputed via the phone instead of in writing (as indicated to do on the CCA).  However, the fact that they still made this an argument ended up working favorably in their defense?  If I understood correctly.

 

SOL - if I came out of the gate filing a Motion to Strike based on this defense, does this give me a good idea of the judge's stance on these types of cases?  I feel it would be best to include this defense in my answer (along with the other defenses).  

 

I am really confused as to whether I should request arbitration, or go the other road.  Do you know if others have had favorable outcomes who have requested arbitration when the $ amount of the suit filed is almost equal to the cost to arbitrate?  

 

I'm open to advice - weighing the pros and cons.  However, I would like to get the ball rolling while my brain might still function at a decent capacity in being able to prepare these documents.  I fear what sleep deprivation might produce!

 

Lastly, can I file my answer with my defenses, see how it goes, and then request arbitration?  Or, do I waive my right to arbitrate if I don't do it immediately.  (I will look for this answer on my own, but thought I'd ask in case any knows off-hand).  

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@BV80

@Harry Seaward

 

@Harry Seaward

 

My argument against the affidavit would be based on the following statements:

 

4.  That the account records of FIA Card Services, N.A. show that:


a.  Account number ____________________, formerly account number ______________________, was opened on 07/24/200_ by JANE DOE.

b.  Pursuant to the terms of the card member agreement with FIA Card Services, N.A., there was due and payable $1234.56 as of the charge off date of 01/31/2012.

c.  Said agreement and account was, on 04/19/2013, sold, transferred and set over unto CACH, LLC, with full authority to do and perform all acts necessary for collection, settlement, adjustment, compromise or satisfaction of the said claim, and as of that date, there was due and payable on this Account the sum of $1234.56, with all just and lawful offsets, payments, and credits having been allowed.

d.  There were no uncredited, payments, just counterclaims or offsets against said debt when sold.

 

 

Where's the documentation to support the above?   The bank officer references records of FIA that purport to show a - d, yet there's no documentation to support those claims. 

 

There's no bill of sale to show that an alleged sale took place.  Have they provided any credit card statements?  If not, then so far, there's no documentation to prove that the account in question ever existed, that it was opened and utilized by the defendant, and that the claimed balance is accurate. 

My question is, since an affidavit is its own form of evidence, does CACH they even need documentation with an affidavit like this from the OC that seems to cover all of the bullet points?

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  • Arbitration:  I read through all of your responses, and logically speaking, it does make sense to request arbitration for this particular lawsuit. The cost to arbitrate would be as much or almost as much as the $ amount they are seeking (although, like you said, you don't know exactly how much those fees are depending on the arbitrator they select). 

But regardless, if I went to arbitration and lost, I would not be held responsible for the cost of arbitration AND the judgement amount?

 

From what I understand, the rules of the arbitration organization says what the costs are and who pays what percentage.  This would be the same whether you win or lose.  The only additional fee you would be responsible for if you lost would be the attorney's fees, and you would also have to pay that if you lost in court.

 

I know nothing about the process of arbitration.  Would I still file an answer, affirmative defenses, etc. and follow the standard process, or does that pretty much change the game?  Am I more at risk of losing if we go that road?

 

Again, my knowledge is limited, but from what I have read, you would file an answer and in the section that says the court has jurisdiction, you would DENY this because a claim that has been set for arbitration cannot also be litigated.  I think I have also seen people file a motion to dismiss on these grounds as well.

 

There is an arbitration sub-fourm.  I'd suggest you read in there for the technical ins-and-outs.

  • Opting Not to Arbitrate:

 

AFFIDAVIT - I do recall the business records rules of evidence and the whole "as-is"/accuracy defense.  If the OC can't guarantee how accurate the records are, how can CACH?  That seems to be a back-pocket item for court, if it goes that far?  Or is that an affirmative defense to include in my answer?  Do I come out of the gate with each and every defense I plan to use?

 

Any defense you think you might want to use, you have to assert it in your answer.  You can always abandon the defense if it doesn't make sense, but if you don't assert it in your answer you waive the right to use it and then you will have to go back and amend your answer if you later find that it is applicable.

 

OPEN ACCOUNT  - Yes, I did understand that whole ordeal with the open account suit, and that the defendant claimed to have disputed via the phone instead of in writing (as indicated to do on the CCA).  However, the fact that they still made this an argument ended up working favorably in their defense?  If I understood correctly.

 

That was the impression I had as well.  That it had something to do with maintaining the "open" status of the account instead of it converting to an "account stated".  Although, CACH is not claiming an account stated.  They are claiming breach of contract, so you may get even more mileage out of the open account argument.

 

SOL - if I came out of the gate filing a Motion to Strike based on this defense, does this give me a good idea of the judge's stance on these types of cases?  I feel it would be best to include this defense in my answer (along with the other defenses).  

 

I tend to agree that it's better to apply the affirmative defense to your answer as opposed to filing a motion to dismiss.  I think a MtD would simply be denied, especially given the very hazy details of your specific SOL defense.

 

I am really confused as to whether I should request arbitration, or go the other road.  Do you know if others have had favorable outcomes who have requested arbitration when the $ amount of the suit filed is almost equal to the cost to arbitrate?  

 

Lots of people have had very favorable outcomes using arbitration.  What I would expect in your case would be for CACH to just dismiss the case and walk away.

 

I'm open to advice - weighing the pros and cons.  However, I would like to get the ball rolling while my brain might still function at a decent capacity in being able to prepare these documents.  I fear what sleep deprivation might produce!

 

Lastly, can I file my answer with my defenses, see how it goes, and then request arbitration?  Or, do I waive my right to arbitrate if I don't do it immediately.  (I will look for this answer on my own, but thought I'd ask in case any knows off-hand).  

 

There's a paradox here.  The agreement says arbitration can be initiated at any time before a judgment has been entered.  I cannot say with certainty but IIRC, there is some caselaw here in AZ that more or less determines that a party's right to initiate arbitration has been waived once the parties start exchanging discovery (and possibly even disclosure).  My suggestion is to decide now whether or not you want to arbitrate.

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  • Arbitration:  I read through all of your responses, and logically speaking, it does make sense to request arbitration for this particular lawsuit. The cost to arbitrate would be as much or almost as much as the $ amount they are seeking (although, like you said, you don't know exactly how much those fees are depending on the arbitrator they select). 

But regardless, if I went to arbitration and lost, I would not be held responsible for the cost of arbitration AND the judgement amount?

 

From what I understand, the rules of the arbitration organization says what the costs are and who pays what percentage.  This would be the same whether you win or lose.  The only additional fee you would be responsible for if you lost would be the attorney's fees, and you would also have to pay that if you lost in court.

 

I know nothing about the process of arbitration.  Would I still file an answer, affirmative defenses, etc. and follow the standard process, or does that pretty much change the game?  Am I more at risk of losing if we go that road?

 

Again, my knowledge is limited, but from what I have read, you would file an answer and in the section that says the court has jurisdiction, you would DENY this because a claim that has been set for arbitration cannot also be litigated.  I think I have also seen people file a motion to dismiss on these grounds as well.

 

There is an arbitration sub-fourm.  I'd suggest you read in there for the technical ins-and-outs.

  • Opting Not to Arbitrate:

 

AFFIDAVIT - I do recall the business records rules of evidence and the whole "as-is"/accuracy defense.  If the OC can't guarantee how accurate the records are, how can CACH?  That seems to be a back-pocket item for court, if it goes that far?  Or is that an affirmative defense to include in my answer?  Do I come out of the gate with each and every defense I plan to use?

 

Any defense you think you might want to use, you have to assert it in your answer.  You can always abandon the defense if it doesn't make sense, but if you don't assert it in your answer you waive the right to use it and then you will have to go back and amend your answer if you later find that it is applicable.

 

OPEN ACCOUNT  - Yes, I did understand that whole ordeal with the open account suit, and that the defendant claimed to have disputed via the phone instead of in writing (as indicated to do on the CCA).  However, the fact that they still made this an argument ended up working favorably in their defense?  If I understood correctly.

 

That was the impression I had as well.  That it had something to do with maintaining the "open" status of the account instead of it converting to an "account stated".  Although, CACH is not claiming an account stated.  They are claiming breach of contract, so you may get even more mileage out of the open account argument.

 

SOL - if I came out of the gate filing a Motion to Strike based on this defense, does this give me a good idea of the judge's stance on these types of cases?  I feel it would be best to include this defense in my answer (along with the other defenses).  

 

I tend to agree that it's better to apply the affirmative defense to your answer as opposed to filing a motion to dismiss.  I think a MtD would simply be denied, especially given the very hazy details of your specific SOL defense.

 

I am really confused as to whether I should request arbitration, or go the other road.  Do you know if others have had favorable outcomes who have requested arbitration when the $ amount of the suit filed is almost equal to the cost to arbitrate?  

 

Lots of people have had very favorable outcomes using arbitration.  What I would expect in your case would be for CACH to just dismiss the case and walk away.

 

I'm open to advice - weighing the pros and cons.  However, I would like to get the ball rolling while my brain might still function at a decent capacity in being able to prepare these documents.  I fear what sleep deprivation might produce!

 

Lastly, can I file my answer with my defenses, see how it goes, and then request arbitration?  Or, do I waive my right to arbitrate if I don't do it immediately.  (I will look for this answer on my own, but thought I'd ask in case any knows off-hand).  

 

There's a paradox here.  The agreement says arbitration can be initiated at any time before a judgment has been entered.  I cannot say with certainty but IIRC, there is some caselaw here in AZ that more or less determines that a party's right to initiate arbitration has been waived once the parties start exchanging discovery (and possibly even disclosure).  My suggestion is to decide now whether or not you want to arbitrate.

 

First and foremost, thank you, as always.

 

I will read up on arbitration - if I know for certain that if I force them to initiate arbitration, and that if the expense is not worth their effort in this matter, I definitely believe that is an excellent way to approach this.  

 

Is there a way I can find out the cost to arbitrate?  Is it appropriate to ask that question on the Arbitration forum?  If I choose to go the arbitration route, should I direct my further questions to that forum?

 

If not, how do I properly prepare that document to the court?  Along with my answer on each point, BUT denying the Justice Court as proper venue and then a separate heading of "Motion to Compel Arbitration".  

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AAA and JAMS post their fees on their respective websites. I've seen both at different times but don't remember what they are now.

I don't want to give you bad info so head over to the arbitration forum and they can tell you what to file and how.

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