fight2win

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

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AFFIRMATIVE DEFENSES

 

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?)

 

You can assert this claim in your answer, but It's not an affirmative defense.  I would use "fails to state a claim" as the defense and then give all of these other reasons as the basis for your assertion of that defense.

 

I think you're good to go on everything else.

 

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?

 

I think I would also include "accord and satisfaction" and "laches".

 

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?  

 

YES!  You both have to sign anything you file with the court.

 

 

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?

 

It depends on how you claim it.  :-)  For example, "Upon information and belief, Defendants assert that applicable statutes of limitations have expired on any claim that may have ever existed" is substantially different from "Defendants assert that on 05/30/2014 the applicable statutes of limitations expired on the debt they owed to the Plaintiff".

 

You will have to prove the date if you allege that it's different from the date the plaintiff claims.  They will likely claim the charge-off as the accrued cause of action.  If you want to argue that the first missed payment is the actual cause of action, you'll have to come up with some compelling argument for when you would like to allege the last payment would have been.  For example, there is some federal law (Fair Credit Billing Act, I think) that requires a bank to charge off a debt 180 days after the last payment.  You can use that law to calculate back from the date of charge-off.

 

 

 

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

 

It's called Free Enterprise.  There is no law (and neither should there be) that says that what a business can charge for products and services must be based on what it costs them to produce the product or provide the service.  This is something that many people get hung up on and the truth is what a JDB pays is irrelevant to the lawsuit.

 

The other thing is assuming they paid $10 for a $1,000 debt (which is a myth anyway*), what people never take into account is the JDBs costs to collect the debt.  They pay people to make phone calls and prepare & letters.  Then there are the debts that they spend money to litigate and are never able to collect.  I'm not defending them.  Just making the point that there is more to consider than what they paid for the actual debt.

 

*Say a JDB buys a pool of 10,000 debts for $100,000.  Simple math says they paid $10 for each debt.  If each debt is exactly $100, then you can properly say they paid 10 cents on the dollar for the debts.  The problem is the debts aren't all the same amounts.  Some of them might be $5 and some might be $10,000.  Does that mean they paid $10 for the $5 debts?  And if we apply the "what they paid for the debt" argument, should they be allowed to collect $10 on a $5 debt?  And then how do you factor in all of the debts that they are never able to collect?  As you can see, it's impossible to break down exactly what they pay for each debt in a portfolio.  Bottom line is don't get hung up on these details that won't help you win the lawsuit.

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Ok, I made revisions again (in red).   I'm being wishy-washy (mentally) because I keep reading where JDB'ers hate arbitration and often you can make them go away quickly by requesting it.  I never really was able to find a clear answer on who, exactly, has to pay arbitration costs.  If I knew the JDB'er HAD to pay if I request it, and if I knew that it was definitely costly for them, I would do it in a heartbeat. 

 

Anyway, below is what I have, any final feedback? 

 

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 Defendants never entered into a contract directly with the 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.      Defendants are without knowledge or information to form a belief as to the truth of the claims alleged by Paragraph V and therefore deny the same.

 

6.      Defendants deny the allegations contained in paragraph VI of the Complaint as Defendants are without knowledge or information 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 knowledge or information 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.

 

 

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

 

 

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 on any claim that may have ever existed 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. Plaintiff’s Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

 

In and for their THIRD 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 FOURTH 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 FIFTH affirmative defense, Defendants claim Accord and Satisfaction as Defendants allege that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

 

In and for their SIXTH affirmative defense, Defendants invoke the Doctrine of Laches as the Plaintiff waited too long to file this lawsuit, making it difficult or impossible for the Defendant to find witnesses or evidence, or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

 

In and for their SEVENTH affirmative defense, Defendants allege 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.

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To add to what @Harry Seaward said above you really need to concentrate on what it will take to win your case. I have nothing to add to this thread for one reason and that is you live in the JDB/JDB attorney dream world which is Arizona. I don't know exactly why it is so different there, but its not the typical JDB models that most of us are used to dealing with. In some states they tend to use model A, in others they use model B more and in some they use model C. In some states you might see models A,B, & C used depending on the JDB and based on the individual's situation. AZ has its own business model which I'm not sure how to label. 

 

As for the amount paid it really doesn't matter. When my lawsuits started a few years ago the average I came up was around 3%-3.5%, but that was based on transactions after the economy crashed. The amounts may be higher now, but once again it doesn't matter.

 

Another factor in my state involved is that less than half of the judgments are ever collected. I think in your state the attorneys get paid for winning and maybe even just for fighting. In many states like mine most of the attorneys only get paid a percentage of what is collected. So the work they do Today might not see any financial results for several years. The way the attorneys are paid may have a lot to do with how the conduct business.

 

One thing I do know after reading these AZ threads is to make sure and use the correct strategies in order to get ready for an appeal. Just keep working on what you need to do to win. 

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@ArtVandelayTo add to what @Harry Seaward said above you really need to concentrate on what it will take to win your case. I have nothing to add to this thread for one reason and that is you live in the JDB/JDB attorney dream world which is Arizona. I don't know exactly why it is so different there, but its not the typical JDB models that most of us are used to dealing with. In some states they tend to use model A, in others they use model B more and in some they use model C. In some states you might see models A,B, & C used depending on the JDB and based on the individual's situation. AZ has its own business model which I'm not sure how to label. 

 

As for the amount paid it really doesn't matter. When my lawsuits started a few years ago the average I came up was around 3%-3.5%, but that was based on transactions after the economy crashed. The amounts may be higher now, but once again it doesn't matter.

 

Another factor in my state involved is that less than half of the judgments are ever collected. I think in your state the attorneys get paid for winning and maybe even just for fighting. In many states like mine most of the attorneys only get paid a percentage of what is collected. So the work they do Today might not see any financial results for several years. The way the attorneys are paid may have a lot to do with how the conduct business.

 

One thing I do know after reading these AZ threads is to make sure and use the correct strategies in order to get ready for an appeal. Just keep working on what you need to do to win. 

That's awesome that I live in JDB heaven!  Luckily, I will not be going through this again.  

 

I have noted before, I *won* against this same JDB last year.  I suppose I should use the word "won" loosely because the JDB dismissed the case, but I don't know exactly why.  I really focused on the affiant in my ROGs and RFAs, and our pre-trial conference was set pretty much right after they would have received those.  With that said, I failed to have my husband come with me to the conference (didn't know he needed to be there).  JDB said he could enter a judgment against me, but instead offered to reschedule the conference for a later date.  Shortly thereafter, I received a notice of dismissal.  

 

So, when I received this summons, for a much lesser amount, I was a bit confused.  With that said, I'm doing my best to understand the ins-and-outs of how this process works, and I really don't want to just include each and every defense I can come up with.  Without valuable input from others, I'm completely lost.

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Your answers and affirmative defenses look really good!

Only one thing jumped out at me just now:

In and for their FOURTH 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.

Your position is that they aren't entitled to anything and the phrase "more money than Plaintiff is entitled to receive" could be interpreted as you believe they are entitled to some money, just not the full amount they are asking for. I would re-word this phrase to eliminate the possibility of having this perception exploited.

Otherwise, I think all of your bases are covered.

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It's called Free Enterprise.  There is no law (and neither should there be) that says that what a business can charge for products and services must be based on what it costs them to produce the product or provide the service.  This is something that many people get hung up on and the truth is what a JDB pays is irrelevant to the lawsuit.

 

The other thing is assuming they paid $10 for a $1,000 debt (which is a myth anyway*), what people never take into account is the JDBs costs to collect the debt.  They pay people to make phone calls and prepare & letters.  Then there are the debts that they spend money to litigate and are never able to collect.  I'm not defending them.  Just making the point that there is more to consider than what they paid for the actual debt.

 

*Say a JDB buys a pool of 10,000 debts for $100,000.  Simple math says they paid $10 for each debt.  If each debt is exactly $100, then you can properly say they paid 10 cents on the dollar for the debts.  The problem is the debts aren't all the same amounts.  Some of them might be $5 and some might be $10,000.  Does that mean they paid $10 for the $5 debts?  And if we apply the "what they paid for the debt" argument, should they be allowed to collect $10 on a $5 debt?  And then how do you factor in all of the debts that they are never able to collect?  As you can see, it's impossible to break down exactly what they pay for each debt in a portfolio.  Bottom line is don't get hung up on these details that won't help you win the lawsuit.

A JDB'er doesn't provide me any service or product.  They do, however, provide me with a great big  :censored: headache!   

 

I understand the explanation; I'm just whining for a quick minute :) I certainly won't get caught up on anything that serves me no *good* purpose.  I know there are other avenues of approach, and at the end of the day, all I can do is try and learn and understand to the best of my ability (and limited time).  The difference I see this time around is that there seems to more of a negative view regarding my particular case due to my location here in AZ.  It's hot, people turn mean.  I have actually not read too much about cases in Arizona (specifically).  But it seems that many of you have, and obviously there have been some pretty poor outcomes.

 

Racecar helped me last time, and I just got my documents filed, and pressed on.... which is what I'll do now.  I appreciate the help though - tremendously.

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Your answers and affirmative defenses look really good!

Only one thing jumped out at me just now:

Your position is that they aren't entitled to anything and the phrase "more money than Plaintiff is entitled to receive" could be interpreted as you believe they are entitled to some money, just not the full amount they are asking for. I would re-word this phrase to eliminate the possibility of having this perception exploited.

Otherwise, I think all of your bases are covered.

Ok, I see what you're saying.  I'll see what I can find/come up with.  Thank you.

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Ok, I have a question.  I often ask stupid questions, so please forgive me.

 

Because this case is based on Breach of Contract, all the JDB'er provided me with is an Affidavit that shows an amount, a few dates, etc., and a credit card agreement with my name printed out (via computer) on it, but no signature.  He has to show that the offer was accepted by USE - correct?  There were no credit card statements.  Additionally, there was no actual Bill of Sale, etc.  Don't they have to provide that evidence WITH their Complaint?    Last time, I believe, I did receive an actual Bill of Sale (with all it's own issues and problems) along with the affidavit from an employee of the OC.  I also received a final billing statement.  But this time, there is nothing.  
 

While I understand that they can produce that in discovery - shouldn't that be attached now?  And, my most important question is, do any of my affirmative defenses address this specific issue.  I always "think" that I really understand them (defenses), but then I find out that I don't truly understand them (and that makes me nervous).  I want to know that I KNOW what I'm giving to the courts and to the Plaintiff at all times. 

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@Harry Seaward

 

Is this defense better than the Unjust Enrichment defense?

 

In and for their FOURTH affirmative defense, Defendants assert that upon information and belief, Plaintiff's Complaint alleges damages are limited to real or actual damages only.

 

And....

 

Should I also use Lack of Standing?  They didn't offer anything - the affidavit is not considered a chain on custody, correct?

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They don't have to attach anything to a complaint. What they did attach was specifically aimed at you just to freak you out to make you think they have a case hoping you call to settle or, better yet for them, not bother to file an answer and let them get a default. If they have any other paper on this debt you will find out about it when they send you their initial disclosure in a few weeks.

I'm not sure where you were going with your revised FOURTH affirmative defense. The unjust enrichment was good. It just needed a little tweaking on the language is all.

Lack of standing is not an affirmative defense but does support your "failure to state a claim" defense.

As far as their breach of contract is concerned, you really don't need any affirmative defenses if they cannot prove their case to the satisfaction of the court. The entire function of affirmative defenses is in the event the plaintiff can prove all of their claims, you have legitimate reasons why they still should not be entitled to recover. It's the reason "lack of standing" is not an affirmative defense. If they can't show there was a contract or that they are a real party in interest, they have no case against you and the case is (should be) dismissed.

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They don't have to attach anything to a complaint. What they did attach was specifically aimed at you just to freak you out to make you think they have a case hoping you call to settle or, better yet for them, not bother to file an answer and let them get a default. If they have any other paper on this debt you will find out about it when they send you their initial disclosure in a few weeks.

I'm not sure where you were going with your revised FOURTH affirmative defense. The unjust enrichment was good. It just needed a little tweaking on the language is all.

Lack of standing is not an affirmative defense but does support your "failure to state a claim" defense.

As far as their breach of contract is concerned, you really don't need any affirmative defenses if they cannot prove their case to the satisfaction of the court. The entire function of affirmative defenses is in the event the plaintiff can prove all of their claims, you have legitimate reasons why they still should not be entitled to recover. It's the reason "lack of standing" is not an affirmative defense. If they can't show there was a contract or that they are a real party in interest, they have no case against you and the case is (should be) dismissed.

Ok, I see what you're saying about the revised 4th defense (after reading for more clarification).  I thought it just meant that the Plaintiff is entitled to nothing, as no damages were done to them....  I'll remove that and go back to the Unjust Enrichment defense by simply stating:   

 

In and for their FOURTH affirmative defense, Defendants assert that upon information and belief, that the court would unjustly enrich the Plaintiff by granting the relief sought herein.  (Is this ok?)

 

 

 

I spend all day reading, and then more I read, the more I realize I don't understand. I keep seeing Lack of Standing used as a real defense (even on this forum), yet I don't fully trust my own understanding without having it explained.  I highlighted in red what I thought applied to me.  But you are saying that I can include this as my factual basis for "failure to state a claim".  Should I attach this verbiage to that defense?  Or is that unnecessary?  I'm sorry, I hope I'm not driving you nuts.

  • Lack of Standing: Lack of standing is a powerful defense to use. It basically means that a debt collector has no legal basis for filing a suit. No legal basis means that there is no clear ownership of the debt or legal assignment of a debt to a debt collector. This can occur when there is no clear paper trail (a.k.a. chain of custody) in the sale or assignment of a debt from the original creditor to the debt collector.

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What I'm saying is that you don't need to say as an affirmative defense that the plaintiff lacks standing. If they do in fact lack standing they don't have a case against you. It would be like if you were charged with a crime and the prosecution had no evidence but you were still found guilty because you didn't tell the court that the prosecution had no evidence. It's a fundamental component of the proceedings. If you deny the claims in their complaint, they have to prove their case against you which includes proving they are a real party in interest.

Nothing bad is going to happen to you if you list it as an affirmative defense and before I knew better, I used it in my own affirmative defenses. I'm just trying to help you streamline your answer. If it puts you mind at ease, by all means, use it! :-)

Here's how I would assert unjust enrichment in this case:

In and for their FOURTH affirmative defense, Defendants assert unjust enrichment in that, upon information and belief, Plaintiff seeks monetary relief to which it is not entitled.

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What I'm saying is that you don't need to say as an affirmative defense that the plaintiff lacks standing. If they do in fact lack standing they don't have a case against you. It would be like if you were charged with a crime and the prosecution had no evidence but you were still found guilty because you didn't tell the court that the prosecution had no evidence. It's a fundamental component of the proceedings. If you deny the claims in their complaint, they have to prove their case against you which includes proving they are a real party in interest.

Nothing bad is going to happen to you if you list it as an affirmative defense and before I knew better, I used it in my own affirmative defenses. I'm just trying to help you streamline your answer. If it puts you mind at ease, by all means, use it! :-)

Here's how I would assert unjust enrichment in this case:

That makes sense.  I don't feel I need to use it, I just get lost in a sea of misunderstanding of all the legal jargon.  And the wording of the AD #4 is much better.  I think I'm ready to go file this tomorrow.  Thanks again.  

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It just occurred to me that CACH never claimed in their complaint that the debt was assigned to them. They can usually go back and amend their complaint but if this thing goes long enough and they never do claim this, beating them might be easier than we have been thinking.

It doesn't change anything with your answer or anything else at this stage but keep this in mind as things move along and be sure to take advantage of it when the time comes (MSJ and trial).

Edit: Disregard. I just saw where they did claim this. Sorry.

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Brief update and would love some help:

 

1. Filed answer with the court on Friday, October 10, 2014.

2. Sent copy to JDBA - certified mail/return receipt.

3. Received receipt October 15, 2014

4. Received Plaintiff Disclosure

 

My disclosure statement is due mid-November.  I want to wait until the last possible minute, but (making sure they receive it ON time). I had my baby on Monday, and want to delay as much of this as possible. 

 

What I received in Plaintiff Disclosure:

 

1.  Billing statements from OC - 12 billing statements from 12/2011 through 12/2012

       * there is one statement missing - 

2. Standard Bill of Sale/Assignment of Loans ("as-is", etc. included)

3. Attached "Schedule" - account number and includes:  1) First Pay Date, 2) First Delq Date, and 3) Charge Off Date

4. Copy of Card Agreement (printout)

5. Copy of Affidavit from OC

 

 

I have received input from another forum regarding arbitration.  The comments seem to point towards that direction.   I don't want to make a move in that direction unless I can find out more absolute specifics as far as who pays the fees, how much they are, etc.  I am told that the JDB would have to pay far more than they would get back, but I don't want to do anything based on what someone tells me.  I need something concrete.  However, I still need to look further into that. 

 

However, if I pursue this on the normal course - my defenses are still the same

 

1.  JDB is using business records from someone other than the Plaintiff.  From what I understand, that still falls under the hearsay business doc rule.  I still have a right to subpoena the affiant, but would that be at my own expense?  Typically, if I indicate on my Disclosure that I plan to call her as a witness, how exactly does that work?  I need my memory refreshed, or possibly updated on things I may not know or understand.

 

2.  JDB purchased the accounts without recourse and without representation or warranty of any kind, etc.

 

3.  The Bill of Sale is not in full, it is part of a document.  Although, indicated on the Bill of Sale is this:

 

     "This Bill of Sale and Assignment of Loans may be executed by facsimile or electronic transmission in multiple counterparts, each of which shall be an original, but together shall constitute one and the same instrument.
 

4.  The account statements are for one year.  I understand that there have been cases where a few billing statements have been enough, however there is no accounting for the charges whatsoever, or how they came up with the amount due and owing.  There was one statement that showed two charges, that was it.  

 

5.  Also, there is the "open account" defense.  There were disputes made regarding the account.  But I need some further clarification.

 

So, that's what I have received thus far.  It is exactly like the previous suit from last year with the exception that the JDB has a year of billing statements.  Other than that, the affidavit is the same (the other one was also from the OC) and there was one copy of a final billing statement.

 

How are things looking?  I know I'm AZ and JDB heaven (apparently), but the JDB dismissed the suit last year after they received my Rogs and other discovery.  I don't know if that is why, but it's possible.  Again, that suit was for a lot more.  

 

Any feedback is much appreciated, as always.  Thanks :-)

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CONGRATS ON THE BABY!!!  ::balloons:: 

 

Brief update and would love some help:

 

1. Filed answer with the court on Friday, October 10, 2014.

2. Sent copy to JDBA - certified mail/return receipt.

3. Received receipt October 15, 2014

4. Received Plaintiff Disclosure

 

My disclosure statement is due mid-November.  I want to wait until the last possible minute, but (making sure they receive it ON time). I had my baby on Monday, and want to delay as much of this as possible. 

 

Be sure you ask for the agreement between the buyer and seller of the debt that governs the transaction that included your debt (usually called a "forward flow" agreement).

 

What I received in Plaintiff Disclosure:

 

1.  Billing statements from OC - 12 billing statements from 12/2011 through 12/2012

       * there is one statement missing - 

2. Standard Bill of Sale/Assignment of Loans ("as-is", etc. included)

3. Attached "Schedule" - account number and includes:  1) First Pay Date, 2) First Delq Date, and 3) Charge Off Date

4. Copy of Card Agreement (printout)

5. Copy of Affidavit from OC

 

 

I have received input from another forum regarding arbitration.  The comments seem to point towards that direction.   I don't want to make a move in that direction unless I can find out more absolute specifics as far as who pays the fees, how much they are, etc.  I am told that the JDB would have to pay far more than they would get back, but I don't want to do anything based on what someone tells me.  I need something concrete.  However, I still need to look further into that.

 

What does the credit card agreement say about who pays what fees?  IIRC, it said the arbitrator would decide this, which means no one but that arbitrator can say for sure what amount each party will ultimately be responsible for.  It's a catch-22.  The only way to find out how much you will have to pay is by electing arbitration.  I happen to think the risk is outweighed by my belief that that the other side won't follow you into arbitration.  The problem now is that you have seen what evidence they have and the court may find that you waived your right to arbitration when you did not assert it with your answer.  My advice is to prioritize this as the very next decision you make and to get it going ASAP if you want to go arbitration.

 

However, if I pursue this on the normal course - my defenses are still the same

 

1.  JDB is using business records from someone other than the Plaintiff.  From what I understand, that still falls under the hearsay business doc rule.  I still have a right to subpoena the affiant, but would that be at my own expense?  Typically, if I indicate on my Disclosure that I plan to call her as a witness, how exactly does that work?  I need my memory refreshed, or possibly updated on things I may not know or understand.

 

In Arizona, a witness from company A can testify about business records that Company B incorporated from Company C.  It's a bad deal for us.  The witness still must qualify the records under Rule 803(6) but this is easy to do and most JDB witnesses are well prepped these days on the bullet points.

 

2.  JDB purchased the accounts without recourse and without representation or warranty of any kind, etc.

 

I personally think this is going to be your best shot at getting this thing tossed.  If you can get the court to order them to produce the forward flow agreement, and you combine that with the language from the bill of sale, they are going to then have to argue that the 'as-is' language of the contract does not indicate a lack of trustworthiness.

 

3.  The Bill of Sale is not in full, it is part of a document.  Although, indicated on the Bill of Sale is this:

 

     "This Bill of Sale and Assignment of Loans may be executed by facsimile or electronic transmission in multiple counterparts, each of which shall be an original, but together shall constitute one and the same instrument.
 

4.  The account statements are for one year.  I understand that there have been cases where a few billing statements have been enough, however there is no accounting for the charges whatsoever, or how they came up with the amount due and owing.  There was one statement that showed two charges, that was it.

 

The best you can hope for with this is to argue that they have not substantiated their claim with a full accounting of the debt.  I don't know how successful this will be.  I don't remember seeing this argument having been made in any of the JDB appeals cases I read through.  You get to the be the first!  ;-)

 

5.  Also, there is the "open account" defense.  There were disputes made regarding the account.  But I need some further clarification.

 

I think everything you should need to know will be in the cases I posted here a while back.  It might take some reading between the lines, but I think all of the highlights are there.

 

So, that's what I have received thus far.  It is exactly like the previous suit from last year with the exception that the JDB has a year of billing statements.  Other than that, the affidavit is the same (the other one was also from the OC) and there was one copy of a final billing statement.

 

How are things looking?  I know I'm AZ and JDB heaven (apparently), but the JDB dismissed the suit last year after they received my Rogs and other discovery.  I don't know if that is why, but it's possible.  Again, that suit was for a lot more.  

 

JDBs are crazy aggressive in AZ lately.  They don't back down, even when the defendant is represented by well known consumer rights attorneys.  IMO, this is nearly entirely attributable to the capped legal fee agreements between the JDBs and their lawyers.  When the JDB will never spend more than $1,500 to litigate a debt collection case, they have absolutely ZERO incentive to walk away (unless you can sue them in Federal Court for FDCPA violations).  If I were you, I would anticipate this case going all the way to trial.  It might not, but I would say it's as likely either way, so make be sure to get your arguments on the record at every opportunity.

 

Any feedback is much appreciated, as always.  Thanks :-)

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@Harry Seaward - thank you :)

 

Ok, I guess I better figure out which way to take this.  Your input is very helpful.  

 

I don't like the idea of going to trial - I think I'd be a deer in headlights and my brain would shut down.  I suppose it would be worth my time to sit in on some cases - if I'm allowed to do that at my court.  I'd like to see how the judge handles the JDB cases.

 

I have better things to do than deal with the hassle of these weasels!  

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Ok, I am working on my disclosure.  I had one prepared from the last case, but I believe it needs some tweaking.  I will post it up later and would love some help. There's not much to do to get it ready.

 

I have a question though - I noticed that on the Bill of Sale and Assignment of Loans Exhibit, that the date of sale is different from the date of sale listed by the Affiant on the Affidavit of Debt (affiant notes a date 5 days later).  So which is it?  Is that a good thing for me? I would *think* so, since she's attesting to the accuracy of her records - yada-yada.  Any minor discrepancies matter, don't they?

 

My disclosure is not due until mid-November, but I'd like to get the ball rolling on all of it.  I'd love to send them my ROGS and RFA's and Request for Production of Documents all at once.  

 

Our pre-trial conference date is set for early December (BAH-HUMBUG!), and I thought for a moment about asking for a continuance, but I decided to just stick with it.  I don't want to appear weak in any way - so we'll just press on!  

 

Thanks! 

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Rules of evidence say business records can be admitted only if "neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness." I would argue that discrepant dates or dollar amounts (or anything else, for that matter) indicate a lack of trustworthiness either on the part of the "source" of the information (can the person entering the data be trusted in light of their shown errors?) or something in the "method or circumstances of preparation" (corrupted computer data, etc) caused the information to become inaccurate.

Edit: I would not make this argument until you are hit with an MSJ or you go to trial.

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Here is my defendants' disclosure.  I'm sure it needs several revisions.

 

________________________________________________________________________________________________________

Defendants, Jane Doe and John Doe, husband and wife, acting Pro Se, pursuant to Justice Court Rules of Civil Procedure (“JCRCP”), Rule 121, hereby disclose the following information:

 

I.     FACTUAL BASIS OF DEFENSE:

 

1.  The Plaintiff cannot prove a claim on an account, account stated or otherwise under Arizona Rules of Civil Procedure because the Defendant never received, personally or for the benefit of any other person, any goods, wares or merchandise, personal services, labor, or labor and materials from the Plaintiff or its assignor(s). The account stated doctrine does not suspend the rules of evidence to convert a bare assertion of indebtedness into liability.

 

2.  The Plaintiff cannot prove a claim for breach of contract because it does not have evidence of offer, acceptance and consideration given for the original contract between the Defendant and the card issuer and any amendments to that contract.  No, on this one? I used this before, but sounds like it should be tossed.

 

3. Defendants dispute that they entered into a contract with Plaintiff as Plaintiff has failed to produce any contract signed or otherwise.

 

4. The Plaintiff lacks standing to sue the Defendants, since at no time did the Defendants cause any harm to the Plaintiff. Furthermore, persons seeking redress in Arizona courts must first establish standing to sue. Bennett v. Napolitano, 81 P. 3d 311 - Arizona Supreme Court 2003.

 

 

II.     LEGAL THEORIES UPON WHICH DEFENSE IS BASED

 

The defenses of Jane Doe and John Doe asserted in this action are grounded on the following legal theories and Arizona statutory requirements:

 

I need help with this section.  I actually never had anything listed here before – oops. I think the above covers this section, so I’ve got something backwards here.

 

 

III.     NAMES, ADDRESSES AND TELEPHONE NUMBERS OF ANY WITNESSES EXPECTED TO BE CALLED BY DEFENDANTS AT TRIAL

 

1)      Mike Wazowski, Bank Officer of FIA Card Services, N. A.

2)      Magic West

3)      Victoria Mason

4)      Christie Coston

5)      Angelica Martinez

6)      Jay Mills

7)      Other authorized representatives of CACH, LLC

 

I just listed who they listed, except my listing of  #1 being the affiant.  Not sure if this is correct as there is another section below where I would list that person.
 

IV.     NAMES AND ADDRESSES OF ALL PERSONS BELIEVED TO HAVE KNOWLEDGE OR RELEVANT INFORMATION

 

See III above. Defendants will supplement prior to trial if necessary.
 

 

V.     NAMES AND ADDRESSES OF ALL PERSONS WHO HAVE GIVEN STATEMENTS EITHER WRITTEN OR RECORDED, SIGNED OR UNSIGNED AND THE CUSTODIAN OF THE COPIES OF THOSE STATEMENTS

           

            Mike Wazowski, Bank Officer of FIA Card Services, N.C.

VI.     NAMES AND ADDRESSES OF EACH PERSON EXPECTED TO BE CALLED AS AN EXPERT WITNESS AT TRIAL

 

Who would I list here? The affiant?  And, I could not really call this person as witness, correct?  That would require a subpoena from me, and at my expense? I’m unclear on this. 

VII.     COMPUTATION OR MEASURE OF DAMAGES

 

Defendants will compute damages according to work missed at hourly wages, travel costs to and from court, time spent responding to Complaint and Discovery requests, office supplies and postage, filing fees for motions, if applicable.  FDCPA and FCRA statutory and/or actual damages will be sought later in Federal court, if applicable.

 

Do I need this?  This verbiage was recommended to be used, but not sure if this is necessary.

VIII.    DESCRIPTION OF EVIDENCE OR RELEVANT DOCUMENTS PLANNED TO BE USED AT TRIAL
 

The Defendants anticipate utilizing the following Exhibits at trial, assuming they are available through Discovery. Defendants will supplement as other Exhibits become available. Defendants’ Exhibits include, but are not limited to the following:

            A.        Affidavit of Sale and Certification of Debt

B.        All documents constituting the Loan Sale Agreement referred to in the alleged "Bill of Sale and Assignment of     Loans" dated April 15, 2013 between FIA Card Services, NA and CACH,LLC, a copy of which is attached hereto as Exhibit E.  do I reference the attorney’s Exhibit title, or do I reference the Exhibit on the actual Bill of Sale. I think I know, just want to be certain.

            C.        Full chain of assignments of account from original creditor to current owner of account

D.        Any and all responses to Uniform and/or Non Uniform Interrogatories of any party and  attachments thereto.

E.         Should I also list RFA’s, or should I take both of D and E out?

F.         Should I ask for a complete accounting for the charges?

G.        Any and all Exhibits revealed to Defendants through further Discovery

H.        Any and all Exhibits listed or utilized by the Plaintiff

 

As to other documents or categories of documents not being produced herewith, they shall be requested through Discovery.  Defendants have no account records in possession.


IX.       EXISTING DOCUMENTS RELEVANT TO THIS ACTION

1. None known at this time. Defendants will supplement prior to trial if necessary.

 

Dated this ____ day of _____________, 2014

 

_______________________________________________________________________________________________________________________

 

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Rules of evidence say business records can be admitted only if "neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness." I would argue that discrepant dates or dollar amounts (or anything else, for that matter) indicate a lack of trustworthiness either on the part of the "source" of the information (can the person entering the data be trusted in light of their shown errors?) or something in the "method or circumstances of preparation" (corrupted computer data, etc) caused the information to become inaccurate.

Edit: I would not make this argument until you are hit with an MSJ or you go to trial.

Ok.  Thank you.

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You have too much going on in your disclosure. Here's all that is required:

(1) A list of trial witnesses.
(2) A list of other people with knowledge.
(3) Copies of exhibits and information.
(4) Statements (made by people).
(5) A list of other documents.

Rule 121, Justice Court Rules of Civil Procedure

You don't need the Factual Basis or Legal Theories. Those are only required for Superior Court cases.

 

Under the "statements" section, or possibly "other documents" I would state that you intend to use any, and possibly all, of Plaintiff's responses to your Discovery Requests.

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You have too much going on in your disclosure. Here's all that is required:

(1) A list of trial witnesses.

(2) A list of other people with knowledge.

(3) Copies of exhibits and information.

(4) Statements (made by people).

(5) A list of other documents.

Rule 121, Justice Court Rules of Civil Procedure

You don't need the Factual Basis or Legal Theories. Those are only required for Superior Court cases.

 

Under the "statements" section, or possibly "other documents" I would state that you intend to use any, and possibly all, of Plaintiff's responses to your Discovery Requests.

@Harry Seaward

 

I finally have time to work on this - I'd like to get my Disclosure out this week.  Could you review what I have below and let me know if you have any suggestions?  I took out the other stuff you said I did not need.... I was looking for a standard template, but could not find one.  I only had what I used before, so I still may have too much listed on here (or some stuff may be repetitive - not sure about that).

 

Thanks!

 

Defendants, Jane Doe and John Doe, husband and wife, acting Pro Se, pursuant to Justice Court Rules of Civil Procedure (“JCRCP”), Rule 121, hereby disclose the following information:

 

I.    NAMES, ADDRESSES AND TELEPHONE NUMBERS OF ANY WITNESSES EXPECTED TO BE CALLED BY DEFENDANTS AT  TRIAL

 

Defendants have no witnesses to call other than for impeachment purposes.

 

II.     NAMES AND ADDRESSES OF ALL PERSONS BELIEVED TO HAVE KNOWLEDGE OR RELEVANT INFORMATION

 

None at this time. Defendants will supplement prior to trial if necessary.

 

III.     NAMES AND ADDRESSES OF ALL PERSONS WHO HAVE GIVEN STATEMENTS EITHER WRITTEN OR RECORDED, SIGNED OR UNSIGNED AND THE CUSTODIAN OF THE COPIES OF THOSE STATEMENTS

           

Any and all of Plaintiff’s responses to Defendant’s Discovery Requests.

 

IV.     DESCRIPTION OF EVIDENCE OR RELEVANT DOCUMENTS PLANNED TO BE USED AT TRIAL

 

The Defendants anticipate utilizing the following Exhibits at trial, assuming they are available through Discovery.

Defendants will supplement as other Exhibits become available. Defendants’ Exhibits include, but are not limited to the following:

 

A.        Affidavit of Sale and Certification of Debt

B.        All documents constituting the Loan Sale Agreement referred to in the alleged "Bill of Sale and Assignment of Loans"

a copy of which is attached hereto as Exhibit E. 

C.        Full chain of assignments of account from original creditor to current owner of account

D.        Any and all Exhibits revealed to Defendants through further Discovery

 

X.        EXISTING DOCUMENTS RELEVANT TO THIS ACTION

 None known at this time. Defendants will supplement prior to trial if necessary.

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You have too much going on in your disclosure. Here's all that is required:

(1) A list of trial witnesses.

(2) A list of other people with knowledge.

(3) Copies of exhibits and information.

(4) Statements (made by people).

(5) A list of other documents.

Rule 121, Justice Court Rules of Civil Procedure

You don't need the Factual Basis or Legal Theories. Those are only required for Superior Court cases.

 

Under the "statements" section, or possibly "other documents" I would state that you intend to use any, and possibly all, of Plaintiff's responses to your Discovery Requests.

@Harry Seaward

 

I finally have time to work on this - I'd like to get my Disclosure out this week.  Could you review what I have below and let me know if you have any suggestions?  I took out the other stuff you said I did not need.... I was looking for a standard template, but could not find one.  I only had what I used before, so I still may have too much listed on here (or some stuff may be repetitive - not sure about that).

 

Thanks!

 

Defendants, Jane Doe and John Doe, husband and wife, acting Pro Se, pursuant to Justice Court Rules of Civil Procedure (“JCRCP”), Rule 121, hereby disclose the following information:

 

I.    NAMES, ADDRESSES AND TELEPHONE NUMBERS OF ANY WITNESSES EXPECTED TO BE CALLED BY DEFENDANTS AT  TRIAL

 

Defendants have no witnesses to call other than for impeachment purposes.

 

II.     NAMES AND ADDRESSES OF ALL PERSONS BELIEVED TO HAVE KNOWLEDGE OR RELEVANT INFORMATION

 

None at this time. Defendants will supplement prior to trial if necessary.

 

III.     NAMES AND ADDRESSES OF ALL PERSONS WHO HAVE GIVEN STATEMENTS EITHER WRITTEN OR RECORDED, SIGNED OR UNSIGNED AND THE CUSTODIAN OF THE COPIES OF THOSE STATEMENTS

           

Any and all of Plaintiff’s responses to Defendant’s Discovery Requests.

 

IV.     DESCRIPTION OF EVIDENCE OR RELEVANT DOCUMENTS PLANNED TO BE USED AT TRIAL

 

The Defendants anticipate utilizing the following Exhibits at trial, assuming they are available through Discovery.

Defendants will supplement as other Exhibits become available. Defendants’ Exhibits include, but are not limited to the following:

 

A.        Affidavit of Sale and Certification of Debt

B.        All documents constituting the Loan Sale Agreement referred to in the alleged "Bill of Sale and Assignment of Loans"

a copy of which is attached hereto as Exhibit E. 

C.        Full chain of assignments of account from original creditor to current owner of account

D.        Any and all Exhibits revealed to Defendants through further Discovery

 

X.        EXISTING DOCUMENTS RELEVANT TO THIS ACTION

 None known at this time. Defendants will supplement prior to trial if necessary.

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You have too much going on in your disclosure. Here's all that is required:

(1) A list of trial witnesses.

(2) A list of other people with knowledge.

(3) Copies of exhibits and information.

(4) Statements (made by people).

(5) A list of other documents.

Rule 121, Justice Court Rules of Civil Procedure

You don't need the Factual Basis or Legal Theories. Those are only required for Superior Court cases.

 

Under the "statements" section, or possibly "other documents" I would state that you intend to use any, and possibly all, of Plaintiff's responses to your Discovery Requests.

@Harry Seaward

 

I finally have time to work on this - I'd like to get my Disclosure out this week.  Could you review what I have below and let me know if you have any suggestions?  I took out the other stuff you said I did not need.... I was looking for a standard template, but could not find one.  I only had what I used before, so I still may have too much listed on here (or some stuff may be repetitive - not sure about that).

 

Thanks!

 

Defendants, Jane Doe and John Doe, husband and wife, acting Pro Se, pursuant to Justice Court Rules of Civil Procedure (“JCRCP”), Rule 121, hereby disclose the following information:

 

I.    NAMES, ADDRESSES AND TELEPHONE NUMBERS OF ANY WITNESSES EXPECTED TO BE CALLED BY DEFENDANTS AT  TRIAL

 

Defendants have no witnesses to call other than for impeachment purposes.

 

II.     NAMES AND ADDRESSES OF ALL PERSONS BELIEVED TO HAVE KNOWLEDGE OR RELEVANT INFORMATION

 

None at this time. Defendants will supplement prior to trial if necessary.

 

III.     NAMES AND ADDRESSES OF ALL PERSONS WHO HAVE GIVEN STATEMENTS EITHER WRITTEN OR RECORDED, SIGNED OR UNSIGNED AND THE CUSTODIAN OF THE COPIES OF THOSE STATEMENTS

           

Any and all of Plaintiff’s responses to Defendant’s Discovery Requests.

 

IV.     DESCRIPTION OF EVIDENCE OR RELEVANT DOCUMENTS PLANNED TO BE USED AT TRIAL

 

The Defendants anticipate utilizing the following Exhibits at trial, assuming they are available through Discovery.

Defendants will supplement as other Exhibits become available. Defendants’ Exhibits include, but are not limited to the following:

 

A.        Affidavit of Sale and Certification of Debt

B.        All documents constituting the Loan Sale Agreement referred to in the alleged "Bill of Sale and Assignment of Loans"

a copy of which is attached hereto as Exhibit E. 

C.        Full chain of assignments of account from original creditor to current owner of account

D.        Any and all Exhibits revealed to Defendants through further Discovery

 

X.        EXISTING DOCUMENTS RELEVANT TO THIS ACTION

 None known at this time. Defendants will supplement prior to trial if necessary.

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