fight2win

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

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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.

Ok, I just posted my questions to them and attached a link back to this thread for their review.

 

:)

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@Harry Seaward

 

 

@BV80

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?

 

Probably not.   However, if they file an MSJ, could depend upon their claims in that motion.  An affidavit in support of summary judgment has to be the testimony of someone who could testify at trial.   Would the bank officer be able to testify to all of the issues addressed in the motion?  

 

We know that most JDB MSJs are pretty basic, and the affiant could probably testify if called, but it's something to look out for.

 

In my opinion, while a judge may disagree, the affidavit does not authenticate any records that might be offered into evidence.  For that reason also, I'd argue that CACH needs their own affidavit to attempt to authenticate business records.

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@bassplayr

 

I could be off on this one, but I seem to recall a standard that the business records themselves tell the tale, not someone merely speaking about the business records.  This affiant states that the information is "believed to be correct"....how?  Why?  What about that information makes it believable?  Merely stating that information is believed to be true does not make it so.  I tend to favor the "open door" plan in situations like this......when they mention something, they "open the door" for me to ask more about it, or to ask that they produce the documentation associated with the events they described.

 

 

Exactly.  Where is the documentation that supports the statements in the affidavit?

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@bassplayr

@BV80

I'm with both of you in principal. I just can't remember seeing any cases from Arizona like this one. The ones I have seen are affidavits from the JDB testifying about the OCs records. I'm just not sure how interested the court is going to be in actually having records when the OC has laid out the details of the debt in a sworn affidavit.

After thought... Wells v. Allen covers this topic pretty thoroughly from the perspective of the plaintiff being an OC. Seems like the same logic should flow here too.

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@Harry Seaward

 

I agree with you that an affidavit from an OC is damning, but we need to find out if documents that support the claims in an affidavit are required.   If I sued someone with nothing but an affidavit claiming that they owed me money, would that be enough for me to win?

 

Right now, there's no documentation.

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Harry, whomever can offer input regarding my answer, affirmative defenses .... they are posted below.  The formatting is a little disastrous when I copy and paste.  

 

COMES NOW THE DEFENDANTS, Pro Se, and answer the Plaintiff’s claim as follows:

 

 

1.      Defendants admit the statements contained in paragraph I.

 

2.      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.

 

3.      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.

 

4.      Defendants admit they are residents of Maricopa County, State of Arizona.  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.

 

5.      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.  

How do I word my response for #5?  I don’t know how to admit or deny.

 

6.      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 assignment claims made in this paragraph.

 

7.      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.

 

8.      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.

 

9.      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.

 

10.  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.

 

 

 

AFFIRMATIVE DEFENSES

 

As and for their affirmative defenses, the Defendants assert and state as follows:

 

In and for their FIRST affirmative defense, Defendants assert that upon information and belief, Defendants allege that this action is time-barred under Del Code § 8106 under the laws of Delaware.  From what I read, Statute of Limitations applies to the date of the last payment, or 30 days thereafter.  This being the case, the last payment date noted on my credit report was 5/9/11, and 30 days after would still fall within the 3 year statute, albeit is really close. 

 

In and for their SECOND affirmative defense, Defendants assert that upon information and belief, Plaintiff’s Complaint fails to allege a valid assignment of debt. Would the affidavit of debt be considered a valid assignment of debt considering it’s from an employee of the OC? 

 

In and for their THIRD affirmative defense, Defendants assert that upon information and belief, the Plaintiff has not proven the debt is valid or the amount is accurate.  The Plaintiff must prove that the principal, interest, collection costs, and attorney’s fees are all correct, agreed to in your contract, and lawfully charged.

 

In and for their FOURTH affirmative defense, Defendants assert that upon information and belief, Defendants claim Lack of Privity as Defendants have never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

 

In and for their FIFTH affirmative defense, Defendants assert that upon information and belief, Defendants claim a Failure of Consideration, as there has never been any exchange of any money or item of value between the Plaintiff and the Defendants.

 

In and for their SIXTH affirmative defense, Defendants assert that Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendants, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

 

In and for their SEVENTH affirmative defense, Defendants assert that Plaintiff specifically represented to the Defendants the following:

 

The Defendants specifically relied upon this representation to his or her detriment and now asks the court to decide this case as if this representation were true.  I really don’t understand Estoppel defense? 

 

 

 

 

 

 

 

DATED THIS ___th day of _____, 2014.

                                                                        By: _____________________________

                                                                               Jane Doe, Pro Se

 

 

By: _____________________________

                                                                               John Doe, Pro Se

 

 

 

 

 

CERTIFICATE OF DISTRIBUTION

 

 

 

Original and copy mailed via First

Class mail and Certified USPS mail

this ___th day of _____, 2014.

 

JDB

C/O Law Office of Joe Blow

5555 Street Name

City, State 55555

(Plaintiff)

 

 

_____________________________

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@Harry Seaward

 

I agree with you that an affidavit from an OC is damning, but we need to find out if documents that support the claims in an affidavit are required.   If I sued someone with nothing but an affidavit claiming that they owed me money, would that be enough for me to win?

 

Right now, there's no documentation.

This case and affidavit is exactly like the previous affidavit submitted by the JDB on the suit filed last year.  It was an affidavit from an employee of the OC.  It was notarized, yada yada.  However, I addressed the knowledge of the affiant in my ROGs.  This person is located in N.C. - if I were to (during discovery) file a general sworn denial, does that not force the affiant to testify in person?  Doesn't the affiant have to answer whatever questions I have regarding the validity of the debt?  If the debt is even off by a number of cents, doesn't that invalidate the affiant's testimony?  

 

This was my understanding last time.  Regardless, the JDBA is going to have to put a lot of time into answering my ROGs and is the dollar amount they are suing for worth their time and effort?

 

Additionally, can a JDB collect on an amount in excess of what they actually paid for the debt?  Do they not have to provide this information at some point along the way?

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In this OC case involving Citibank, the AZ appeals court distinguishes the result reached in "Allen" from its finding in favor of Citibank because of the documentation Citibank provided and because the custodian of records in "Allen" failed to attach the documents to his affidavit or even to describe them so the court could attest to his accuracy.

 

 

http://scholar.google.com/scholar_case?case=2014426787265687977&q=credit+card&hl=en&as_sdt=4,3&as_ylo=2014

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I could be off on this one, but I seem to recall a standard that the business records themselves tell the tale, not someone merely speaking about the business records.  This affiant states that the information is "believed to be correct"....how?  Why?  What about that information makes it believable?  Merely stating that information is believed to be true does not make it so.  I tend to favor the "open door" plan in situations like this......when they mention something, they "open the door" for me to ask more about it, or to ask that they produce the documentation associated with the events they described.

 

Also, when attacking an affidavit like this, it's always best to examine all angles.  For example, who is the affiant?  You need not worry about giving yourself away by posting the person's name here, as these affiants generally sign tons of these documents.  What if the person who signed this affidavit turns out to be a robosigner?  What if, for example, we can find a dozen different signatures all supposedly from this same person?  Explore ALL avenues, do not leave any stone unturned.  Being an employee of FIA Card Services....how do we even know that he/she is one?  These companies have falsified stuff like this before, where the same affiant turned up as claiming to be an employee of multiple companies.  If you do not check, how would you ever know?

 

FIA Card Services did not even exist as a company prior to JUne 2006.  When was your credit card account supposedly opened?  The affiant even stated that FIA is "successor in interest to MBNA".  If this account was opened prior to that date, then FIA cannot necessarily testify with any reliability as to what happened prior to FIA even existing.

 

Here's some rather interesting information for you....it appears that FIA Card Services is well known for robosigning. 

 

http://www.creditinfocenter.com/community/topic/313589-question-about-robo-signing/

 

This one could really help you:

 

http://www.supreme.courts.state.tx.us/ebriefs/11/11048403.pdf

 

In addition to checking out the affiant, you should always check the notary as well. 

 

Edit, there's more to consider.  The afiant in this case states:

 

Unless this afiiant can show that he/she was directly involved in this specific account, how could that person declare that they can speak as to how and when those specific account entries were made?  Being familiar with established procedures or declared practices does not mean that you know everything that everyone does, all of the time. 

 

If you look, I'd bet you would find that FIA has been slapped down a bit for robosigning.  Do not ignore this--FIA is part of BofA, which is a VERY well known robosigner. 

Ok, this is all familiar as these points were raised before (just last July/August).  The affiant may have knowlege of how FIA maintains their books and records, but they need "personal knowledge" regarding my account, that goes beyond spending 13 seconds signing an affidavit.  And of course in my ROGs last time - many questions were brought up asking how long the affiant spent signing each affidavit, how many per day, just all the standard questions.  

 

What I am curious about is - what is the overall status of these types of cases?  Certainly, there has to be some info floating around as to what happens when an affiant is called to trial.  How much knowledge do most courts expect these affiants to have?  

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@Harry Seaward

 

I agree with you that an affidavit from an OC is damning, but we need to find out if documents that support the claims in an affidavit are required.   If I sued someone with nothing but an affidavit claiming that they owed me money, would that be enough for me to win?

 

Right now, there's no documentation.

Last time I was provided with a Bill of Sale (and on that Bill of Sale it was noted that the accounts were sold "As Is" with all faults, etc. - another point to argue).  In addition, I was sent final billing statements - just with overall dollar amts. listed, but they were from the OC (logo, etc.).  However, does the Plaintiff and affiant have to prove how those amounts were calculated?  I thought that they did.  So whatever documents that "could be" sent during discovery that supposedly support the claims of the affidavit, there are still more points to address from what I understand.... Of course unless I don't know what I don't know (which is always my top concern).

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I could be off on this one, but I seem to recall a standard that the business records themselves tell the tale, not someone merely speaking about the business records.  This affiant states that the information is "believed to be correct"....how?  Why?  What about that information makes it believable?  Merely stating that information is believed to be true does not make it so.  I tend to favor the "open door" plan in situations like this......when they mention something, they "open the door" for me to ask more about it, or to ask that they produce the documentation associated with the events they described.

 

Also, when attacking an affidavit like this, it's always best to examine all angles.  For example, who is the affiant?  You need not worry about giving yourself away by posting the person's name here, as these affiants generally sign tons of these documents.  What if the person who signed this affidavit turns out to be a robosigner?  What if, for example, we can find a dozen different signatures all supposedly from this same person?  Explore ALL avenues, do not leave any stone unturned.  Being an employee of FIA Card Services....how do we even know that he/she is one?  These companies have falsified stuff like this before, where the same affiant turned up as claiming to be an employee of multiple companies.  If you do not check, how would you ever know?

 

FIA Card Services did not even exist as a company prior to JUne 2006.  When was your credit card account supposedly opened?  The affiant even stated that FIA is "successor in interest to MBNA".  If this account was opened prior to that date, then FIA cannot necessarily testify with any reliability as to what happened prior to FIA even existing.

 

Here's some rather interesting information for you....it appears that FIA Card Services is well known for robosigning. 

 

http://www.creditinfocenter.com/community/topic/313589-question-about-robo-signing/

 

This one could really help you:

 

http://www.supreme.courts.state.tx.us/ebriefs/11/11048403.pdf

 

In addition to checking out the affiant, you should always check the notary as well. 

 

Edit, there's more to consider.  The afiant in this case states:

 

Unless this afiiant can show that he/she was directly involved in this specific account, how could that person declare that they can speak as to how and when those specific account entries were made?  Being familiar with established procedures or declared practices does not mean that you know everything that everyone does, all of the time. 

 

If you look, I'd bet you would find that FIA has been slapped down a bit for robosigning.  Do not ignore this--FIA is part of BofA, which is a VERY well known robosigner. 

 

I found another thread on this forum with Melinda K. Stephenson listed as the affiant.  From what I read, the defendant was located in Florida.

 

http://www.creditinfocenter.com/community/topic/317665-pretrial-for-cach-llc-please-help/page-4

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@BV80

 

I found another thread regarding CACH and, specifically, the same affiant who signed my affidavit.  It appears to be the same case scenario (overall).  There were 79 pages of discussion on this case AND attacking an affidavit vs. subpoenaing and affiant to court, etc. (and whose responsibility that is), etc.  I got lost reading and could not find the bottom line.   

 

 http://www.creditinfocenter.com/community/topic/317665-pretrial-for-cach-llc-please-help/

 

I'm just wondering if you recall the outcome of this particular case.  I've been reading and reading and, my head is spinning.  I think I'm becoming more confused.

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Melinda K. Stephenson?  Is this her signature, as you have it on your document?  Scroll down a bit and you will see the affidavit:

 

http://imgweb.charlestoncounty.org/CMSOBView/Service1.asmx/StreamDocAsPDF?viewertype=cms&ctagency=10002&casenumber=2011CP1008666&docseq=P1A4

 

How does that compare with the signature on your affidavit?

Yes, the two signatures are the same.  I am reading through your previous post now.

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OK, let's start at the beginning.  First question, when was this account supposedly opened?  As in, what month and what year?  This is very important, because your afiant just told the court that he/she knows how all these records were kept.  If the account was opened before the merger, then this afiant might have a very hard time indeed trying to claim they know this information.

 

July 2007

 

Second question, who is the afiant?  If you post the names of the afiant and the notary, we can help you uncover potential game-winning information.  Let's say that this afiant came to work for the original creditor a year ago?  What if the person did not even work for the plaintiff until after the account was sold off?  I would think that this is info you want and need to know.  Believe me, you are not giving any private info out or giving yourself away if you post those names here, because those two people have likely done hundreds if not thousands of identical documents.  You should really post those names up and let us help you, it has worked in the past. 

 

Melinda K. Stephenson

 

Regarding your questions of what can suffice or what is allowed about this affidavit and other records, the simplest answer I can give you at this time is this:  If you do nothing, then everything they have done will be allowed, and it will carry the weight that they want it to carry in the case.  If you contest what they provided with reasonable legal logic, you then have a better chance of the court siding with you that they have not proven anything.  We could speculate for hours about whether or not this affidavit is enough in the court's eyes, but the best thing you can do generally speaking is fight everything that does not make sense. 

 

This is what I did last time, and the outcome was favorable to me.  I guess I can't say that I "won", but the JDBA (same guy again on this one) dismissed the case.  That case was for triple the amount of this one.  I'm *hoping* that the shear fact that I'm willing to fight will deter him from wasting his time trying to collect on such a measly amount.

 

Harry hit this one correctly when he mentioned Wells Fargo v. Allen.  One of the lessons illustrated in that case:

 

http://azappblog.com/2012/12/04/wells-fargo-bank-v-allen-ca1-12412/

 

The affidavit in this case is definitely conclusory in that it offers not one single document of evidence.  The affidavit is not supposed to be evidence by itself, but is supposed to authenticate actual evidence.  And that is a good way to fight this affidavit.  What evidence does the affidavit authenticate when there is none produced? But can they produce it during discovery?  Or, would they provide what they had from the start IF they had it?  Or, are the hoping to just get a default judgement/easy win.  Whatever the case, I did post my rough draft Answer along with Affirmative Defenses (hoping to get feedback soon so I can get it filed/sent out).

 

AZ's Rule 803(6) details what is relevant about what you are facing.  This statute deals with the hearsay rule and what is or is not admissible.

 

Notice that the description states "records" of activity, not an affidavit made well after the fact. And from my understanding, an Affidavit of Sale and Certification of Debt is NOT a "record". It also says that in order to be admissible, the record must be made at or near the time of the actual events.  This affidavit was made specifically for your court case, and not "at or near the time of the event".  Ok, understood.  Note that there is a requirement that the record be made by a person with first hand knowledge, or by a person relying upon the recordings of a person with first hand knowledge.  The affidavit does nothing to address this requirement.  You can have "first hand knowledge" all day long about how ABC Agency keeps its records, but if you do not have first hand knowledge of how ABC kept MY SPECIFIC records, then what can you honestly tell me about what did or did not take place? Ok, understood as well.

 

These are things you can use to attack the affidavit.  You can object to it and motion to strike, if your state's CCP allows.  I know I would.  You also have the right to have the afiant subpoenaed to testify.  I'd love to see them produce the afiant, but the majority of them never will.  So, when I/if I were to subpoena the affiant, the JDB would NOT want her there anyway, and although the burden of cost to get her here is on me, it likely would not in any way happen? The three reasons I just listed are all good cause for you to argue that the business records themselves, and not someone's say-so about the business records alone, need to be produced.  I would argue these points by listing out the specific statute itself and then picking apart piece by piece the flaws in their affidavit.  I would also use Wells Fargo v. Allen, if you are not familiar with it, it's worth a read:  I will read this in the morning, but tonight my brain said, "Stop!" 

 

http://caselaw.findlaw.com/az-court-of-appeals/1617328.html

 

They mention some other case law examples in that link, taken directly from the appeals court's word for word decision to reverse and remand the case.

 

Please consider posting those names, you never know when someone else can find something that you have not seen yet.

 

Alright, so what I want to do is get my Answer and Affirmative Defense completed and filed.  I dedicated hours and hours to this nightmare last year, and we have a baby due yesterday, and I need to get that part done and on it's way (at least) before I simply can't be on this computer.  I am very familiar with this process.  I did not have to subpoena an affiant last time and I attacked the validity of the Affidavit of Debt, etc. in my ROGs and RFAs.  I think it was too much noise for the JDBA to even want to bother with.  But again, I need feedback on what I posted earlier regarding my Answer/Affirmative Defenses. 

 

And thank you.  I appreciate your careful and clear explanations (greatly).

 

 

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@fight2win

All of the info being talked about here is great and spot on for what you will possibly be dealing with down the road. Given your pregnancy status, my advice is to get your answer (with affirmative defenses) filled and either serve you initial disclosure statement at the same time or have it ready to go so that all you have to do is drop it in the mail before the 40-day deadline.

We can come back to the rest of this if/when the case moves on to the next phase, which will be 2-3 months from now.

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@fight2win

All of the info being talked about here is great and spot on for what you will possibly be dealing with down the road. Given your pregnancy status, my advice is to get your answer (with affirmative defenses) filled and either serve you initial disclosure statement at the same time or have it ready to go so that all you have to do is drop it in the mail before the 40-day deadline.

We can come back to the rest of this if/when the case moves on to the next phase, which will be 2-3 months from now.

Oh, thank you for this advice!  Yes, I appreciate so much all of the input and help, and the "normal" me actually partly enjoys reading and learning about this, but right now, I just need to deal with my immediate concern:  my answer/affirmative defenses, and yes, I can use my previous disclosure with probably some minor tweaking, and have it ready to go.  

 

I did post up my answer with affirmative defenses (you already helped me with my answer, and there were a few minor questions that I had for you). My affirmative defenses were included after under a separate heading - if you have time (whenever), could you look through and see if the ones I listed were appropriate?  

 

Thank you!

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Oh, thank you for this advice!  Yes, I appreciate so much all of the input and help, and the "normal" me actually partly enjoys reading and learning about this, but right now, I just need to deal with my immediate concern:  my answer/affirmative defenses, and yes, I can use my previous disclosure with probably some minor tweaking, and have it ready to go.  

 

I did post up my answer with affirmative defenses (you already helped me with my answer, and there were a few minor questions that I had for you). My affirmative defenses were included after under a separate heading - if you have time (whenever), could you look through and see if the ones I listed were appropriate?  

 

Thank you!

 

Yes, somehow I completely missed your posting of your answer and defenses.  Here we go...

 

Harry, whomever can offer input regarding my answer, affirmative defenses .... they are posted below.  The formatting is a little disastrous when I copy and paste.  

 

COMES NOW THE DEFENDANTS, Pro Se, and answer the Plaintiff’s claim as follows:

 

 

1.      Defendants admit the statements contained in paragraph I.

 

2.      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.

 

3.      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.

 

The reason CACH can legally sue you is because they are standing in for BofA as provided by the credit card agreement so technically there is a contract between the two of you.  (The agreement says the account may be sold at any time and the new owner inherits all rights of the OC).  I think I would reword your response to say that "Defendants never entered into a contract directly with Plaintiff".

 

4.      Defendants admit they are residents of Maricopa County, State of Arizona.  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.

 

5.      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. 

How do I word my response for #5?  I don’t know how to admit or deny.

This is such a strange allegation.  If they were smart they would have at some point alleged you were married and that the debt was a community debt, blah blah blah and then added the DOES I-V as an additional allegation.  If this were me, I would treat this lawsuit as if they were only suing you and not your husband, but I'm a jerk like that.  In your case, to keep things simple I would just move ahead as if they are naming both spouses and use the standard "Defendants are without knowledge or information to form a belief..." line for this allegation.

 

6.      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 assignment claims made in this paragraph.

 

7.      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.

 

8.      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.

 

9.      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.

 

10.  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.

At this point I would include a statement "any of Plaintiff's allegations not expressly admitted to is hereby denied."

 

AFFIRMATIVE DEFENSES

As and for their affirmative defenses, the Defendants assert and state as follows:

In and for their FIRST affirmative defense, Defendants assert that upon information and belief, Defendants allege that this action is time-barred under Del Code § 8106 under the laws of Delaware.  From what I read, Statute of Limitations applies to the date of the last payment, or 30 days thereafter.  This being the case, the last payment date noted on my credit report was 5/9/11, and 30 days after would still fall within the 3 year statute, albeit is really close.

It's all about what Arizona caselaw says about when the cause of action accrues.  Right now, don't worry about what it will be.  Just assert the defense and when the time comes, you can make your arguments.

You only have the DE SOL statute stated.  I would also include the 3-year AZ SOL from A.R.S. §12-543 "in the alternate" and make your "open account" claim at this juncture.

In and for their SECOND affirmative defense, Defendants assert that upon information and belief, Plaintiff’s Complaint fails to allege a valid assignment of debt. Would the affidavit of debt be considered a valid assignment of debt considering it’s from an employee of the OC? 

"valid assignment of debt" is not an affirmative defense. This would belong in the Factual Basis for Defense. "Fails to state a claim" is an affirmative defense so you could say "Plaintiff's complaint fails to state a claim" and then cite "no valid assignment of debt" as your factual basis for your "fails to state a claim" defense.

 

In and for their THIRD affirmative defense, Defendants assert that upon information and belief, the Plaintiff has not proven the debt is valid or the amount is accurate.  The Plaintiff must prove that the principal, interest, collection costs, and attorney’s fees are all correct, agreed to in your contract, and lawfully charged.

Same thing applies here. None of these things are valid affirmative defenses.  Use these things as factual basis for "fails to state a claim" or some other affirmative defense.

In and for their FOURTH affirmative defense, Defendants assert that upon information and belief, Defendants claim Lack of Privity as Defendants have never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

Lack of privity is not an affirmative defense.  It's a doctrine of contract law.  Either way, it won't fly because the agreement itself (that you submitted to by using the account) provides that the debt may be sold to a 3rd party.

 

In and for their FIFTH affirmative defense, Defendants assert that upon information and belief, Defendants claim a Failure of Consideration, as there has never been any exchange of any money or item of value between the Plaintiff and the Defendants.

 

In and for their SIXTH affirmative defense, Defendants assert that Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendants, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

You're talking about "assumption of risk" which is an affirmative defense, but does not apply to contract lawsuits.

 

In and for their SEVENTH affirmative defense, Defendants assert that Plaintiff specifically represented to the Defendants the following:

 

The Defendants specifically relied upon this representation to his or her detriment and now asks the court to decide this case as if this representation were true.  I really don’t understand Estoppel defense? 

"Estoppel" is when a party does or says something that causes them to lose their right to sue. An example would be if one person borrows $100 from another person under a written contract, and during a verbal conversation, the borrowee says "hey, don't worry about paying me that $100", estoppel would prevent the borrowee from suing the borrower even though there is a written contract in place. Because actions (as opposed to verbal statements) can also trigger estoppel, it's always a good defense to raise because you never know what the other side will admit to during discovery that the court could decide triggered estoppel.

I gave you a handful of legitimate affirmative defenses. You don't have to make legal arguments for each one with your answer. You can simply say "In and for Defendants' SECOND affirmative defense, Defendants assert upon information and belief that Plaintiff's claims are barred by _____ (SOL, accord and satisfaction, etc, etc)."

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Yes, somehow I completely missed your posting of your answer and defenses.  Here we go...

 

I gave you a handful of legitimate affirmative defenses. You don't have to make legal arguments for each one with your answer. You can simply say "In and for Defendants' SECOND affirmative defense, Defendants assert upon information and belief that Plaintiff's claims are barred by _____ (SOL, accord and satisfaction, etc, etc)."

 

 

 

 

AFFIRMATIVE DEFENSES

 

As and for their affirmative defenses, the Defendants assert and state as follows:

 

In and for their FIRST affirmative defense, Defendants assert upon information and belief, Plaintiff’s claim is time-barred under Del Code § 8106 under the laws of Delaware, and alternately under A.R.S. §12-543 under the laws of Arizona.

 

In and for their SECOND affirmative defense, Defendants assert that upon information and belief, Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

 

In and for their THIRD affirmative defense, Defendants assert that upon information and belief, Plaintiff’s Complaint fails to allege a valid assignment of debt. ((I can't use this?  Is this covered under "fails to state a claim?"  I have seen it used as a defense, so I'm confused.  I just want to make sure I cover all of my bases, so if there is an alternate defense to use, could you let me know?)

 

In and for their FOURTH affirmative defense, Defendants assert that upon information and belief, Defendants claim a Failure of Consideration, as there has never been any exchange of any money or item of value between the Plaintiff and the Defendants.

 

In and for their FIFTH affirmative defense, Defendants assert that upon information and belief, Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than Plaintiff is entitled to receive.

 

In and for their SIXTH affirmative defense, Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais.

 

Defendants reserve the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

 

Defendants deny each and every allegation of the Complaint not specifically and expressly admitted herein.

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@Harry Seaward

 

I posted some of those changes above.  I highlighted in red the revisions I made, and then also a few questions that I have for you.

 

I did not do this step (a formal answer) last time around.  My husband filed a very quick one with the court because it was all new to us.  

 

Does it look like I covered the most important defenses at this point?  If there are any that I left out that could be included, would you let me know?

 

Thanks!!!!

 

One more question:  I went ahead and just included my husband on my answer (contact info. on top of document, and signature space, acting Pro Se, etc.).  Do I need to do this?  

 

Also, is claiming a Statue of Limitations admitting to having a contract in the first place?  At some point down the road, would I have to prove the date?  

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@BV80

 

I found another thread regarding CACH and, specifically, the same affiant who signed my affidavit.  It appears to be the same case scenario (overall).  There were 79 pages of discussion on this case AND attacking an affidavit vs. subpoenaing and affiant to court, etc. (and whose responsibility that is), etc.  I got lost reading and could not find the bottom line.   

 

 http://www.creditinfocenter.com/community/topic/317665-pretrial-for-cach-llc-please-help/

 

I'm just wondering if you recall the outcome of this particular case.  I've been reading and reading and, my head is spinning.  I think I'm becoming more confused.

 

Yes, I recall the outcome of this case.  Unfortunately, the OP lost, but the attorney for CACH was a very aggressive FL attorney who motioned to compel the OP's bank records to show that she had made payments to the OC.   Since the judge seemed to believe that CACH owned the account, the OP's bank records pretty much sealed the deal.

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Yes, I recall the outcome of this case.  Unfortunately, the OP lost, but the attorney for CACH was a very aggressive FL attorney who motioned to compel the OP's bank records to show that she had made payments to the OC.   Since the judge seemed to believe that CACH owned the account, the OP's bank records pretty much sealed the deal.

 

@BV80

Didn't/doesn't the JDB have to prove the correctness of the amount owed rather than just an affidavit from some bank rep that claims an amount due and owing?  And "most" Bill's of Sale state that those accounts are sold on an "as-is" basis - all faults, etc.  Well, I'll cross that bridge when and if I come to it.  As for now, I'll focus on my answer/defenses.  

 

Thanks for clarifying that - I'm still stumped on how a JDB can collect on more than they paid for an account.  

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@fight2win

 

I'm still stumped on how a JDB can collect on more than they paid for an account. 

 

 

It's because the law allows it.  That applies to more than just credit card debts purchased by JDBs.  For instance, when another bank takes over your mortgage, you still owe the balance on that mortgage no matter what the new bank might have paid to take it over. 

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