BV80 Posted January 3, 2015 Report Share Posted January 3, 2015 @GDayMateAZ Unavoidably, AZ Courts would apply only AZ SOL 6 years ARS 12-548. I have to respectfully disagree. The case law you cited says that the SOL would depend upon the law of AZ. The law of AZ (statute 12-506) says that if an action was already time-barred in the state where you lived before you moved to AZ, then the action would also be time-barred in AZ. 2 Quote Link to comment Share on other sites More sharing options...
GDayMateAZ Posted January 3, 2015 Report Share Posted January 3, 2015 @GDayMateAZ I have to respectfully disagree. The case law you cited says that the SOL would depend upon the law of AZ. The law of AZ (statute 12-506) says that if an action was already time-barred in the state where you lived before you moved to AZ, then the action would also be time-barred in AZ. It depends of a month of 2012 when Mommyof3D's husband moved to AZ from KS. Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 3, 2015 Report Share Posted January 3, 2015 @GDayMateAZ\ It depends of a month of 2012 when Mommyof3D's husband moved to AZ from KS. That's true. Quote Link to comment Share on other sites More sharing options...
Mommyof3D's Posted January 3, 2015 Author Report Share Posted January 3, 2015 @BV80, Unavoidably, AZ Courts would apply only AZ SOL 6 years ARS 12-548. Ross v. Ross, 393 P.2d 933, 96 Ariz. 249 (1964) http://scholar.google.com/scholar_case?case=13651400935731213264&q=info:0LOxpNKEc70J:scholar.google.com&hl=en&as_sdt=0&oi=scholarr "We approve the general rule as stated in Scudder v. Union National Bank, 91 U.S. 406, 412, 413, 23 L.Ed. 245: Matters bearing upon the execution, the interpretation and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought." "Scudder" quoted above can be found here: Scudder v. Union Nat. Bank, 91 U.S. 406, 23 L. Ed. 245 (1875) http://scholar.google.com/scholar_case?case=17442174324001449657&q=info:uaaLlCIND_IJ:scholar.google.com&hl=en&as_sdt=0&oi=scholarr On no...so that would mean that we are stuck with the 6 year SOL. Quote Link to comment Share on other sites More sharing options...
Mommyof3D's Posted January 3, 2015 Author Report Share Posted January 3, 2015 @GDayMateAZ\ That's true. He moved here in July of 2010. Quote Link to comment Share on other sites More sharing options...
Mommyof3D's Posted January 3, 2015 Author Report Share Posted January 3, 2015 @GDayMateAZ I have to respectfully disagree. The case law you cited says that the SOL would depend upon the law of AZ. The law of AZ (statute 12-506) says that if an action was already time-barred in the state where you lived before you moved to AZ, then the action would also be time-barred in AZ. So I am confused. Can I use the SOL laws from KS since that was where the account was opened and where the last payment was made? Or am I stuck with the 6 year statute ? Quote Link to comment Share on other sites More sharing options...
GDayMateAZ Posted January 3, 2015 Report Share Posted January 3, 2015 He moved here in July of 2010. Not 2012 ? So, KS SOL did not expire by that time ... Quote Link to comment Share on other sites More sharing options...
GDayMateAZ Posted January 3, 2015 Report Share Posted January 3, 2015 So I am confused. Can I use the SOL laws from KS since that was where the account was opened and where the last payment was made? Or am I stuck with the 6 year statute ? @Mommyof3D's, For reasons presented in my earlier posts, it looks that your husband and his ex (but not you) indeed stuck with AZ SOL 6 years. Unfortunately, his (and his ex') debt is still within AZ SOL 6 years ARS 12-548(A)(2). http://www.azleg.state.az.us/ars/12/00548.htm Quote Link to comment Share on other sites More sharing options...
Seadragon Posted January 3, 2015 Report Share Posted January 3, 2015 Could this account have been addressed in the divorce settlement? Usually they separate the debts or say they go to one party or another. ie husband takes this debt and wife takes that one, or wife gets house and all debts, etc. This is a trickier case, was he in KS past the Feb 2012 date? if he was the SOL would have run already. Then going to federal would make sense. Since you have potential claims against them you need a NACA attorney. Realistically, this will not go so well in JC, but if you can increase the pressure you could maybe come out better with them wanting mutual walkaway and tradeline deletion or correction. Sorry missed the post where you said 2010. I would look at the divorce settlement and decree. The key is to answer on time, and I think a sworn affidavit followed by targeted discovery and Interrogatories. I would definetly assert time barred based on SOL as an affirmative defense then maybe assert that you are not a party to disrupt proceedings. Please PM the thread responders the name of the court so we can check the justice o' the peace out. Quote Link to comment Share on other sites More sharing options...
Seadragon Posted January 3, 2015 Report Share Posted January 3, 2015 Just a thought, but if Jane Doe is in Kansas, and she was the named cardholder, then wouldn't KS be the proper jurisdiction. If the OP's Husband was only an authorized user then KS would be the proper court. Maybe a Plea to Jurisdiction? I think it is all gonna turn on who applied and who was on the account. When two parties are located in different states, the one state with the lowest SOL would be the proper jurisdiction to prevent disparate treatment of defendants. IMHO Just trying to get the issues framed before they proceed. A case could be made that plaintiffs did not proceed promptly and SOL ran so the caused their own injury. Quote Link to comment Share on other sites More sharing options...
Seadragon Posted January 3, 2015 Report Share Posted January 3, 2015 Maybe Arb Strategy, That takes AZ SOL out of the picture. Quote Link to comment Share on other sites More sharing options...
Seadragon Posted January 3, 2015 Report Share Posted January 3, 2015 Do you know anyone in Tucson that would loan you the use of their address? I think the JC in Pima county is better. Moving Jurisdiction there would possibly be a good move. Or moving to another JC court with the best of the worst judges. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 4, 2015 Report Share Posted January 4, 2015 @BV80@GDayMateAZ I have to respectfully disagree. The case law you cited says that the SOL would depend upon the law of AZ. The law of AZ (statute 12-506) says that if an action was already time-barred in the state where you lived before you moved to AZ, then the action would also be time-barred in AZ. Good golly, Miss Molly, you never cease to amaze me. This statute was sitting under my nose the whole time I was digging around looking at the others. Nice find! Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 4, 2015 Report Share Posted January 4, 2015 Just a thought, but if Jane Doe is in Kansas, and she was the named cardholder, then wouldn't KS be the proper jurisdiction. If the OP's Husband was only an authorized user then KS would be the proper court. Maybe a Plea to Jurisdiction? I think it is all gonna turn on who applied and who was on the account.AZ is a community property and debt state. Anything obtained and used during a marriage is assumed to benefit the community. If a party claims otherwise, they then have to prove their claim. Your earlier idea about the divorce decree would be one way to establish that. @Mommyof3D's should definitely have her husband look into this. (Of course it could be that the debt was assigned solely to him in the divorce, which would then eliminate the possibility of having the ex-wife appear as a co-defendant.) Do you know anyone in Tucson that would loan you the use of their address? I think the JC in Pima county is better. Moving Jurisdiction there would possibly be a good move. Or moving to another JC court with the best of the worst judges.What you are suggesting here is fraud upon the court. I'm not passing judgment on what one feels is the best course of action for their own situation - I just want the OP to be aware the court would not find this at all acceptable. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 4, 2015 Report Share Posted January 4, 2015 @Mommyof3D'sHere is what I found about adding the ex-wife: Justice Court Rules of Civil Procedure, Rule 104:d. “Necessary” and “indispensable” parties. A person who is not a party to the lawsuit may be “necessary” for a fair hearing of the lawsuit if the court cannot enter complete relief without the person, or if the person has an interest in the lawsuit that the court must resolve. Upon motion of any party, the necessary person will be made a party, served with the lawsuit, and required to participate in the lawsuit. If a necessary person cannot be made a party for any reason, then the court will determine if the absent party is “indispensable” and if so, whether the lawsuit should be dismissed. [ARCP 19(a), (] Basically what this is saying is that if you believe the ex-wife is a "necessary" person to the lawsuit (IMO, she absolutely is assuming the divorce decree does not absolve her of the debt) you can file a motion with the court to have her added as a co-defendant. If the court grants your motion, Midland will then be required to serve her with a summons and complaint. As far as the current wording of the complaint ("Jane Doe"), and in light of the above Rule, I'm pretty sure (and would proceed as if) this is intended to name you as opposed to the ex-wife. This means you have to answer or risk default judgment against you. You can answer separately from your husband or just sign the answer your husband files. @Goody_Ouchless raised an interesting point, which is if the ex is a 'cut off her nose to spite her face' kind of gal, she may show up and really complicate things for you and your husband. @hot in az had a good point. This whole situation might be tricky enough to be worth your while to have a lawyer answer your preliminary questions. I recommend Floyd Bybee (http://http://www.debtcreditlaw.com/) or Richard Groves (http://www.azconsumerlaw.com/). They seem to be the straight shooters here in AZ and both do free initial consults. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 4, 2015 Report Share Posted January 4, 2015 Maybe Arb Strategy, That takes AZ SOL out of the picture.This is a viable option as long as the OP's husband isn't intending to deny having an account with HSBC. Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 4, 2015 Report Share Posted January 4, 2015 @BV80Good golly, Miss Molly, you never cease to amaze me. This statute was sitting under my nose the whole time I was digging around looking at the others. Nice find! Thank you, Sir! I found it quite by accident when I was checking to see if AZ has a borrowing statute (which I forgot that it doesn't). Quote Link to comment Share on other sites More sharing options...
BV80 Posted January 4, 2015 Report Share Posted January 4, 2015 So I am confused. Can I use the SOL laws from KS since that was where the account was opened and where the last payment was made? Or am I stuck with the 6 year statute ? @Mommyof3D's Since the default occurred in AZ, it appears the AZ SOL will apply. But it doesn't hurt to speak to an attorney. Maybe an attorney would know of a loophole or statute that would help you. If he does, we'd sure like to know about it. Quote Link to comment Share on other sites More sharing options...
shellieh98 Posted January 4, 2015 Report Share Posted January 4, 2015 Well she said hubby moved to az in 2010. but the question that needs to be asked is did he move there and establish residency? Meaning is there proof he lived there in 2010? 2nd. When did ex move to az? Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted January 4, 2015 Report Share Posted January 4, 2015 Well she said hubby moved to az in 2010. but the question that needs to be asked is did he move there and establish residency? Meaning is there proof he lived there in 2010? 2nd. When did ex move to az?Since statute of limitations is an affirmative defense, the burden of proof is on the one asserting it. The question therefore is not "is there proof he lived here?" but is instead "can he prove he didn't?"I believe the question about when the ex moved here is relevant. I think I just saw some case law about when the SOL runs for one party, it has the effect of running on all parties. I'll see if I can find it again. Quote Link to comment Share on other sites More sharing options...
Mommyof3D's Posted January 4, 2015 Author Report Share Posted January 4, 2015 Since statute of limitations is an affirmative defense, the burden of proof is on the one asserting it. The question therefore is not "is there proof he lived here?" but is instead "can he prove he didn't?"I believe the question about when the ex moved here is relevant. I think I just saw some case law about when the SOL runs for one party, it has the effect of running on all parties. I'll see if I can find it again. Hi there The ex wife moved here in 2012. I am not sure what month that she moved her though I know it was some time between May - July of 2012. I asked my husband about what they did about debts in their divorce and if they itemized them. He told me that there was no itemization of who got what debts just that any debts that were incurred after the divorce was finalized belonged to the respected parties who incurred them. I remember seeing his divorce decree and finding it very odd because it was only a few pages long and did not really go into detail about much. I am going to try to find a copy of it to double check that he is correct about the debts. I do not see how they can put a judgment against me since I was not with him at the time that this debt was made or even charged off. That was before community property anything should have kicked in. They are going to have a hard time getting anything out of me because you cant get blood from a turnip. I do not work and instead go to school and am a stay at home mom to my kids. Quote Link to comment Share on other sites More sharing options...
Mommyof3D's Posted January 4, 2015 Author Report Share Posted January 4, 2015 Well she said hubby moved to az in 2010. but the question that needs to be asked is did he move there and establish residency? Meaning is there proof he lived there in 2010? 2nd. When did ex move to az? He did not have a place of his own here but I do believe that he got a ID card from the DMV. Since he got an ID from the DMV wouldn't that establish residency and make it where we are stuck with the 6 year sol? Quote Link to comment Share on other sites More sharing options...
Mommyof3D's Posted January 4, 2015 Author Report Share Posted January 4, 2015 @Mommyof3D's Since the default occurred in AZ, it appears the AZ SOL will apply. But it doesn't hurt to speak to an attorney. Maybe an attorney would know of a loophole or statute that would help you. If he does, we'd sure like to know about it. Hi I have been recommended a few names of attorneys on this forum to talk to we will be contacting them to see what they have to say, and I will post their responses after we speak to them. It would be awesome if we were able to find a loop hole. Thank you for your help Quote Link to comment Share on other sites More sharing options...
Mommyof3D's Posted January 4, 2015 Author Report Share Posted January 4, 2015 Maybe Arb Strategy, That takes AZ SOL out of the picture. How would you use a Arb Strategy? I will have to do some research on that one because I have never heard of that before. thanks for your help! Quote Link to comment Share on other sites More sharing options...
Mommyof3D's Posted January 4, 2015 Author Report Share Posted January 4, 2015 Not 2012 ? So, KS SOL did not expire by that time ... I am not sure if it matters or not but my husbands ex did not move here until July of 2013. I thought that it was 2012 but my husband says that she moved here in July of 2013. Quote Link to comment Share on other sites More sharing options...
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