janedoenotme

Looking for direction, Order of Judgment, AZ Asset

Recommended Posts

Well, after I filled my Answer to their MSJ, in which I also requested a hearing for the ruling. Which, surprise, surprise, it was not given. The Justice of the peace here where it was filed has been Pro Term now for over 8 months. Anyways, I filled the Answer to their MSJ on Oct. 13, 2014. Today I got the Order of Judgment dated on November 30, 2014. What totally amazes me is how the Justice of the Peace, here into referred to as DipS  h i _ of the Peace or DSOTP! He states, ""finds the pleadings on file and Affidavits submitted establish that there is no genuine issue of material fact and Plaintiff is entitled to judgment as a matter of law.

 

Just to update anyone who hasn't read about this previously. Number one, the chain of command is broken because the documents that the submitted show that, well, here I will copy my statement in my answer,

6.  Plaintiff has not proven its standing to sue in this matter. The chain of assignment from Dell/CIT Bank to Asset Acceptance is incomplete. The new Affidavit introduced in the Plaintiffs Motion for Summary Judgment, further here into “PMSJ: (Exhibit D) from Erin Towns says that Dell/CIT Bank purchased the account from WebBank on May 30, 2012. There is no Bill of sale from WebBank to Dell/CIT Bank. Therefore how can the alleged account belong to Asset Acceptance? Defendant has never done business with Asset Acceptance and never received a bill of any sort from them prior to their filing the complaint on September 6, 2013.

 

Additionally I filed with JAMS and they never paid them. I have a new letter from JAMS requesting they pay one final time. So, I stated that they also didn't have standing.

 

And, I don't know if this matters buy Midland, the attorney that filed for MSJ misspelled my name and the judgment was entered in the wrong spelling. Incompetent ass_____!!!!!!!! Okay, so I guess it's apparent that I am mad. I totally can't believe the courts here. They are the dumbest people anywhere!

 

My other question is doesn't the court have to mail you a copy? I only got a copy from Ass___ Midland!.

 

So, what now? And also, I had spoken to Midland and they told me that they were going to cease all collection actively and review the case after I submitted the copies of my emails showing that I returned the computers to Dell. They never responded to phone calls etc after that.

 

One more thing, in terms of appeals or problems with the Justice court. We showed up for our pre-trial hearing and then the court vacated the case saying that we hadn't. They also said that they mailed me the notice to dismiss the case after another 6 months had gone by yet I did not receive any mail. It amazes me that the only mail that I don't receive is from this Justice Court. All my other mail comes to me???

Link to post
Share on other sites

Art - no problem. :yahoo:

If the OP had documentation Midland wouldn't bother - clearly there is an issue with the "transaction."

Sorry Goody, I don't think you know everything about the company. It's too much information to go through again, besides, I am past that and now looking for help or direction from this point on. I provided them with the documentation and they have not responded back. They said that they would cease all collection activity but didn't. Basically they lied.

 

Do I have 14 days from the date of the Order of Judgement to file an appeal? Anyone, please help? It is crazy that they are allowed to put a Judgement against me. First off, they have so many holes and the court has made so many mistakes. How can they file a judgement against me when it's questionable if this is even my account?

 

Do I ask for a trial, appeal? I requested a hearing for this action and he ignored it. I have had nothing but bad luck in AZ. On my legal papers from the court it even says that my motion to continue was denied and it wasn't. This is all such garbage.

Link to post
Share on other sites

No you are not. It was returned within their policy they did not credit it properly. It has been over 5 years. I did not know that they did not credit it properly because I moved and had no idea that they were saying that I owed them money until I checked my credit report in 2012. No statements were forwarded to me and no collection letters were received until as I said, I got this summons. I disputed it. Then I got the summons from Asset Acceptance. My life has not been normal due to a Home Invasion and keeping my head above water from that has taken up a lot of my time, energy and strength. I am so tired of the injustice in AZ.

Link to post
Share on other sites

States like AZ and GA where kangaroo courts are rubber stamps for JDBs is where you need to use arbitration.  No arguing chain of custody or standing will work in these courts, since the judges will simply accept flimsy, robo-signed affidavits as proof and rule against you - many times without even reading the affidavit.  Then they meet the JDB attorney for drinks later that evening.  Getting your case out of their court by using arbitration is always the best scenario in these places.

Link to post
Share on other sites

@fisthardcheese

 

No arguing chain of custody or standing will work in these courts, since the judges will simply accept flimsy, robo-signed affidavits as proof and rule against you - many times without even reading the affidavit.

 

 

Arizona employs the "adoptive business records doctrine".   If Business #2 relies on the records of Business #1, then #2 can authenticate the records. 

 

It's not the only state that agrees with that doctrine.  As a result, the defendant has to discredit the sufficiency of the affidavit or the statements of the affiant.

Link to post
Share on other sites

The clock on filling your appeal notice starts when you are served the final order of judgment from the court. It sounds like all you have right now is the court's order granting the MSJ. If that's the case, the plaintiff has to file with the court a final statement of costs and a proposed form of judgment. Then the judge signs that and files it with the clerk. The clerk should then mail you a copy. The date of mailing is what starts the clock and you have 14 (I would argue 19 because of mailing) to notice the court of your intent to appeal.

Forget about them lying to you on the phone. You have no proof so it never happened. Period. Same goes for the returns to Dell. If you didn't present the trial court with any evidence of this, the appellate court will tell you that you're out of luck.

Also, you can only appeal issues that you raised with the trial court. If the procedural issues with hearings being vacated, etc, we're not raised with the trial court, you can't raise them on appeal.

So knowing all of that, what issues do you think you can appeal?

Link to post
Share on other sites

States like AZ and GA where kangaroo courts are rubber stamps for JDBs is where you need to use arbitration.  No arguing chain of custody or standing will work in these courts, since the judges will simply accept flimsy, robo-signed affidavits as proof and rule against you - many times without even reading the affidavit.  Then they meet the JDB attorney for drinks later that evening.  Getting your case out of their court by using arbitration is always the best scenario in these places.

This is kind of what I was believing at this point. Here are my questions. First, I did file my answer and I argued about the broken chain of command, I also argued about the MTC Arbitration, I of course brought up the fact that the affidavits were not trustworthy because one is a New York document but it was notarized by someone in another state. Since the court vacated the case I did not file any interrogatories and or my Reclaim for the MTC Arbitration. I did mention that in my argument or my answer to their MSJ. I also included copies of my email snipes showing the returned documents. I also mentioned that they never produced an agreement nor did they produce any statements. They also have my address as one in TX, where I have never lived. I also brought up the inconsistency's in the items that were on the account. There are three Xbox purchases.  They also show 4 items returned with the amounts being like $25 a piece instead of the full amounts of $250 ish. I also brought up that I disputed the charges and never received any statements from Dell showing that I was past due. The home that I moved from is now a rental but my father owns it so if there was any mail it would have been forwarded or at least brought to his attention and it wasn't. I think that arguing all of those things again and also that how can they sue me for a contract that they are not following since the option that I elected was arbitration with JAMS. I just got a letter from JAMS saying that if they didn't pay within 30 days it would be closed. Oh, one more question, I have a fee waiver, is it good with the appeals court as well? I also have a list of times and dates that I have tried to call Karen at Midland and she has not returned my calls. I also filled a complaint with the Consumer Financial Protection Bureau hoping to start some kind of regulatory agency looking into Asset due to all the problems they have had with other lawsuits for collecting on things that were not verified.

 

I also feel that my arguments regarding the Affidavits are strong. The dates are not correct as well as other things. I will post the specifics if anyone has questions. I am fighting a bug today and going back to bed.

 

The document that I received from the court is the one that was included with the MSJ from the Plaintiff, the judge just signed it and mailed it. So, now my time starts from when I get the final order? And can I request more time? I want to move this out as long as possible so that I am not contending with it over the holiday and also so that maybe the Consumer Financial Protection Bureau and the AG will get in touch with them. I am going to fight it all the way.

 

Thanks so much for the responses you have provided to me so far!

Link to post
Share on other sites

At Harry, I don't know why they ruled in their favor so the issues I feel I can appeal are all of the issues I raised that they probably didn't even read. Also, I did bring up the errors. How can I be expected to follow the procedures when the court vacated something that shouldn't have been vacated? It's so confusing. I did reach out to JAMS and told them what was going on and asked if she could extend it longer...

Link to post
Share on other sites

Re-read and answer @Harry Seaward. What, specifically, from the lower court are you appealing? For example, since you appear to have argued flaws in the "Chain of Command," I'm not sure the appeals court can rule that "the defendant may have meant 'Chain of Custody'..."

 

One of the first lessons usually taught to new members is that the court will hold a Pro Se to the same standards and an attorney. I don't believe "I want a 'do over'" is a valid argument for appeal.

 

EDIT: our messages crossed. I see that you just answered Harry.

Link to post
Share on other sites

Per the OP this is one of the .01% of cases involving egregious error. If it were me, I would ignore all of the legal shenanigans and not stop until Dell cleared things up with Midland. 

HOW? I have contacted Dell, I have also filled a complaint with the other agency's against Dell as well. I can't really ignore all of the legal stuff I don't think.... I talked to an attorney who wanted over $1000 to do anything. I don't have the money.

Link to post
Share on other sites

Re-read and answer @Harry Seaward. What, specifically, from the lower court are you appealing? For example, since you appear to have argued flaws in the "Chain of Command," I'm not sure the appeals court can rule that "the defendant may have meant 'Chain of Custody'..."

 

One of the first lessons usually taught to new members is that the court will hold a Pro Se to the same standards and an attorney. I don't believe "I want a 'do over'" is a valid argument for appeal.

 

EDIT: our messages crossed. I see that you just answered Harry.

I called it the correct thing in my argument. I just don't feel good right now and didn't look up the proper terminology.

 

I don't believe that the court even read it because if it was read how could anyone in their right mind Order a Judgement. Their own paperwork clearly is missing vital things. The simple fact that you are not suppose to allow a MSJ if there are any genuine issues of material fact. There are and if anyone took the time to look at the documents it's as clear as day.

Link to post
Share on other sites

Yes I did, I will post the documents from them again. Also, here is something that Harry said and I used it.

 

 

"k, I had a chance to do some research and read their MSJ.

I was correct in that your remedy on a denied motion to compel arbitration is to appeal the decision. See Arizona Revised Statutes 12-2101.01(1). If that decision has been more than 14 days ago you can file a motion to reconsider (which you can then try to appeal within 14 days) or forget about it and move forward with litigation.


Their MSJ has a few flaws. Two are of significant importance. First, this is a 'breach of contract', yet they produced no contract.

Second, the "affidavit of account" signed by Heather Andrus has two major flaws. First it talks about "records" but there are no records attached. Second, she also never claims to have "personal knowledge" as required by Rule 129(e), Justice Court Rules of Civil Procedure (same as Ariz. Civ. P. 56(e) in the citation below).

¶ 18 To carry its burden of persuasion, a plaintiff who seeks summary judgment must submit "undisputed admissible evidence that would compel any reasonable juror to find in its favor on every element of its claim." Mahmoodi, 224 Ariz. at 293, ¶ 20, 229 P.3d at 1035. Here, the only evidence submitted in support of the motion was a paralegal's affidavit and its two attachments. Ariz. R. Civ. P. 56(e) states that "upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. In his affidavit, the paralegal made a general avowal that he is the custodian of records and that he personally reviewed records that established the amount of the Allens' indebtedness to Wells Fargo. Those records were neither described nor attached, nor was there anything in the affidavit to provide a reviewing court with the means to evaluate the accuracy of the paralegal's calculation of the amount claimed to be due. ... Without ever referring to any of the specific documents submitted to the trial court, the paralegal summarily asserted that he was familiar with the Allen account "records" that Wells Fargo kept in the ordinary course of business.
¶ 19 The purpose of a custodian's affidavit is to authenticate evidence — such an affidavit is of little value when it does not attach the evidence at issue. And to the extent that the paralegal's role was intended to be akin to that of a fact witness or expert witness, the only personal knowledge he could have offered (as required by Ariz. R. Civ. P. 56(e)) would necessarily have been based on his review and analysis of documents. But the paralegal never claimed to have reviewed any specific documents or to know the manner in which they were prepared and kept. His affidavit, therefore, was sufficient neither to invoke the business-records exception nor to support the motion for summary judgment.

 

Here is the link to the other original discussion. I did not post my final Opposition to their MSJ because I was pressed for time. I will post it later today or tomorrow morning.

 

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

cut&pastemsj.docx

Link to post
Share on other sites

Forgive me if I missed a post, but did you share the documents in your case (your motions and the plaintiff's MSJ and exhibits)?

And, forgive you! you are reading and responding and trying to help. You certainly do not need to ask for forgiveness!!! :-)

 

I messed up and didn't file the Motion to Reclaim my MTC Arbitration. I don't have any real excuse other then that I am trying to start my business back up as an Executive Search Recruiter and working over 12 hours a day. I also kept checking the mail to find out when the hearing was going to be so that I could put it all in the mail before hand. Ever since my Home Invasion I have had a really hard time sleeping and that has caused me lots of problems concentrating on things as well. I still have quite a bit of anger over that and what occurred and this on top of that has just left me frazzled, angry and explorable at a hairs trigger. I am going to go and lay down now. I have a temp of 100...

 

One last note, the Asset Acceptance vs Goraj appeal was found in the defendants favor. It is pretty much very similar in terms of the affidavit that I got. Here is that case.

1-ca-cv-12-0272.pdf

Link to post
Share on other sites

 

Their MSJ has a few flaws. Two are of significant importance. First, this is a 'breach of contract', yet they produced no contract.

Second, the "affidavit of account" signed by Heather Andrus has two major flaws. First it talks about "records" but there are no records attached. Second, she also never claims to have "personal knowledge" as required by Rule 129(e), Justice Court Rules of Civil Procedure (same as Ariz. Civ. P. 56(e) in the citation below).

 

 

If the contract is required, they would produce one if the case is kicked back. Also, since OP sought to move to JAMS, a contract must have come into evidence somewhere.

 

On the second point, I think the documents showing charge-off details and account history are the "records." Also, while never using the words "personal knowledge," the affiant does say "I am familiar with the manner and method...and upon review of records in my possession." 

 

I haven't seen the original answer or opposition to MSJ, but the fact that the plaintiff attached the answer to their MSJ tells me it didn't help.

 

I'm confused with the account history, as posted - it appears cut-off - is there more?

 

I go back to the beginning - if the merchandise in question was returned and refunded, then find a lawyer to sue Dell.

Link to post
Share on other sites

HOW? I have contacted Dell, I have also filled a complaint with the other agency's against Dell as well. I can't really ignore all of the legal stuff I don't think.... I talked to an attorney who wanted over $1000 to do anything. I don't have the money.

 

What about taking Dell to arbitration?  Force them to give you all of their documentation on your account during that process.  Ideally, you might also demand to award you damages in the amount of the lawsuit you just lost to make them pay for the mistakes that caused a judgement to be issued against you.

 

That would only unravel the Dell portion of this, though.  You would still have to have some legal basis to either file a motion to vacate the judgement or an appeal. That may be a little tougher, I believe.

Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.