Panove4

Midland Funding in AZ

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Got it! The template that I got from an attorney's website says the format has to have the following sections:

 

  1. An Introduction:
  2. Statement of Facts:
  3. Legal Argument: 
  4. Conclusion:

This is typical for a superior court lawsuit.  The rules there are more structured. Simpler justice court rules were adopted because the SC rules were confusing and to procedural for most pro se defendants, and most cases by far being filled in JC are debt collection cases where a defendant can't afford to hire an attorney to defend against a lawsuit for a debt they couldn't pay to begin with. 

 

The thing I typed up a couple posts back is what I would file as my entire opposition to MSJ. I just don't know of a way to argue Midland doesn't own the debt while at the same time ask the court to order them to participate in contractual arbitration on a contract they aren't a party to.

 

Unless there is something off with your motion to compel, I can't see how it would be proper for the court to deny it, and if it did, it would be an immediately appealable ruling. 

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@Harry Seaward  -  I see where you are coming from, but just suppose for a minute that you really felt the need to defend your stance of "I don't owe it and they don't own it".  Could you not argue along the lines of:

 

1.  I don't recognize the account and don't believe I owe it.

2.  Midland claims to own it which I debate

3.  But since they want to stand on that claim, the agreement that would have been in effect at that time required Arbitration and removed the right to litigation.

 

I agree it could be a sticky situation but it could set up the JDB with no out except to run, right?

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@CommoSGT

 

That's what I'd argue.  Midland is not going to deny ownership of the account.  Therefore, they're bound by the arbitration provision.  If, however, the judge rules that Midland hasn't proven ownership, then while arbitration may be denied, so should an MSJ.

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@Panove4 - How did you find out they purchased it from Asset Acceptance?  When did they supposedly do that?  They are both owned by Encore unless I misread something and the Asset guys were purchased by Midland in March 2013 at like $0.03 on the dollar.

 

Talking about buying cheap paper.....

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@Panove4 - How did you find out they purchased it from Asset Acceptance?  When did they supposedly do that?

Yes, both excellent questions.  I just realized we never saw any bill of sale and this is the first mention that the account changed hands an additional time between GE and Midland. 

 

@Panove4, we really need to see all bills of sale and all affidavits.   I know your said they are too large to post.  Please figure out a way to reduce their size or post them on something like photobucket.com. This new info may open additional argument angles and it's really hard to give accurate advice without all of the relevant info. 

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I was able to save the folder with the docs here: https://nmariecrumbie.sharefile.com/f/foh895e0-0f0c-48d1-8c2c-2bcef09ed336

Login is crumbien@gmail.com and password is Panove04

Click the image for the gallery view mode and select all to view each one without the need to download. 

 

Sorry, I don't know what else to do to get there files on the forum. Photobucket didn't work because the files are in pdf format. 

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Ok I got them.

So the affidavit refers to "bill(s) of sale" and there are in fact 2 bills of sale and two attachments that appear to identify your account.  As I said before, you might be able to oppose summary judgment but they appear to have what they need to win a trial.  The only way they could lose is if they trip up somewhere along the way.  This is possible and I've seen it happen, but far more often it happens that they show up and the judge treats it as an open-and-shut case.  Better to get the judge to order them into arbitration where there is a better chance of them walking away.

 

@CommoSGT and @BV80 had great ideas for being able to argue both angles so that's the direction I would go.

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Please take a look at the statements in blue font and let me know if you think it's ok to file. Needs to get in the mail by mid day. Thank you.

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Ok I got them.

So the affidavit refers to "bill(s) of sale" and there are in fact 2 bills of sale and two attachments that appear to identify your account.  As I said before, you might be able to oppose summary judgment but they appear to have what they need to win a trial.  The only way they could lose is if they trip up somewhere along the way.  This is possible and I've seen it happen, but far more often it happens that they show up and the judge treats it as an open-and-shut case.  Better to get the judge to order them into arbitration where there is a better chance of them walking away.

 

@CommoSGT and @BV80 had great ideas for being able to argue both angles so that's the direction I would go.

Please take a look at the statements in blue font and let me know if you think it's ok to file. Needs to get in the mail by mid day. Thank you.
 
 
 

XXXXX andXXXXX husband and wife

ADDRESS

PHONE  | EMAIL

Defendant(s)

 

MARICOPA COUNTY JUSTICE COURT, ARIZONA

MCDOWELL MOUNTAIN JUSTICE COURT

18380 North 40th Street, Phoenix AZ 85032

 

 

MIDLAND FUNDING,

a foreign entity,

 

                                 Plaintiff,

 

vs.

 

XXXXX and XXXXX, husband and wife

 

                                Defendants.

 

 

Case No. XXXXX

 

 

 

RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 

 

 

Introduction

 

Comes now the Defendants, XXXXX and XXXXX, husband and wife, Pro Se, and files this REPLY AND OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment filed by Plaintiff, Midland Funding LLC, a foreign entity, (hereinafter "Plaintiff") as follows:

The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law.

The Plaintiff lacks standing to sue the Defendants, since the alleged account which is subject of this Complaint, is subject to binding individual arbitration.

Plaintiff has failed to discharge this responsibility by filing the Motion For Summary Judgment and the Plaintiff’s Separate Statement of Facts in support filed with the Court.

The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “there is no dispute as to any material fact and it is entitled to judgment as a matter of law.”

Motion for Summary Judgment should be denied.

 

Statement of Facts

 

1.    Defendants received the Plaintiff's Summons on 05/21/2015.

2.    Defendants’ answer was filed with the court on 06/18/2015.

Defendant received Motion for Summary Judgment from Plaintiff's attorney on 7/25/2015.

3.    Mediation conference was held on 8/3/2015.

4.    Defendants filed complaint with the Consumer Finance Protection Bureau (hereinafter CFPB) on 8/6/2015 regarding Defendants’ rights pursuant to CFPB Consent Order against the alleged original creditor (Exhibit “A” proof of online filing) as of date of this Reply; the status of the complaint is “in progress”.

5.    Defendants sent a letter of Demand for Contractual Individual Arbitration to Plaintiff on 08/7/2015 (Exhibit "B" proof of mailing) as of the date of this Reply, Plaintiff has failed to respond.

6.    Defendants sent Demand for documentation from the alleged original creditor on 8/17/2015. (Exhibit “C” for proof of mailing).

Documents requested from alleged creditor included copies of account statements, payment history from the inception of the account up-to and including the date of transfer/sale to collection, and any documentation and notification regarding Defendants’ rights to seek reimbursement pursuant to the CFPB Consent Order. As of date of this Reply, the request has gone unanswered.

7.    Defendants filed MOTION TO COMPEL OR STAY ARBITRATION based on the terms and conditions of the Credit Card Agreement and the SEC S-1 form Registration Statement and Prospectus Summary, an official public record that shows GE Capital Money Bank Care Credit, the alleged original creditor, has been renamed Synchrony Bank.

8.    Certain Defined Terms: Except as to the context may otherwise require in this prospectus, references to: “we,” “us,” “our,” and the “Company” are SYNCHRONY FINANCIAL and its subsidiaries, which together represent the businesses that historically have conducted GE’s North American retail finance business (Exhibit “D” as proof).

9.    Defendants received Notice of Court Date on or about 08/19/2015 (Trial scheduled for 10/19/2015).

(should I keep this heading?) Legal Argument (is the statement below the legal argument?)

 

Defendants have demanded arbitration per the agreement governing this alleged debt and made application to this Court to order same. Per said agreement, and controlling statutes, these litigation proceedings have been stayed, and plaintiff’s act of filling a motion for summary judgment is therefore improper. (See Exhibit “A”, paragraph titled “arbitration providing”; (Exhibit A is already stated Harry so which exhibit is this suppose to be? ) also Arizona Revised Statutes 12-1502 (D). (should a copy of this statute be included as an exhibit?)

Plaintiff’s motion for summary judgment should therefore be denied and this Court should grant defendant’s motion to compel arbitration.

 

(should I keep this heading?) Conclusion (is the statement below the proper conclusion?)

 

Plaintiff's failure to elect Contractual Individual Arbitration compels the denial of summary judgment for Defendant.

 

 

DATED this 21st day of August 2015.

 

 

______________________                                                        ______________________

Signature                                                                                    Signature

 

 

 

 

COPY of the foregoing sent this 25th day of August 2015 to:

 

 

Bursey & Associates

6740 Oracle Road, Ste 151

Tucson, AZ 85704

 

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Looks pretty good.  I've made some suggestions.  In the future, use only red or blue so that whoever responds can use the other.  The teal I used seems kind of hard to see on my screen.

 

 

Please take a look at the statements in blue font and let me know if you think it's ok to file. Needs to get in the mail by mid day. Thank you.
 
 
 

XXXXX andXXXXX husband and wife

ADDRESS

PHONE  | EMAIL

Defendant(s)

 

MARICOPA COUNTY JUSTICE COURT, ARIZONA
MCDOWELL MOUNTAIN JUSTICE COURT
18380 North 40th Street, Phoenix AZ 85032

 

 

MIDLAND FUNDING,
a foreign entity,

 

                                 Plaintiff,

 

vs.

 

XXXXX and XXXXX, husband and wife

 

                                Defendants.

 

 

Case No. XXXXX

 

 

 

RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 

 

 

Introduction
 

Comes now the Defendants, XXXXX and XXXXX, husband and wife, Pro Se, and files this REPLY AND OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment filed by Plaintiff, Midland Funding LLC, a foreign entity, (hereinafter "Plaintiff") as follows:

The Motion For Summary Judgment filed by the Plaintiff is insufficient may not be granted as a matter of law.
The Plaintiff lacks standing to sue the right to litigate its claims against the Defendants, since the alleged account which is subject of this Complaint, is subject to binding individual private contractual arbitration.

Plaintiff has failed to participate in arbitration and has instead discharge this responsibility by filing the filed this lawsuit against Defendants and subsequently filed with this Court a Motion For Summary Judgment and the Plaintiff’s Separate Statement of Facts in support filed with the Court.

The Motion does not set forth the True facts upon which Plaintiff seeks a may be granted summary judgment. Rather the Motion states only “there is no dispute as to any material fact and it is entitled to judgment as a matter of law.”

Motion for Summary Judgment should be denied.

 

Statement of Facts
 

1.    Defendants received the Plaintiff's Summons on 05/21/2015.

2.    Defendants’ answer was filed with the court on 06/18/2015 and therein Defendants denied all of Plaintiff's material allegations.

3.    Defendant received Motion for Summary Judgment from Plaintiff's attorney on 7/25/2015.

4. 3.    Mediation conference was held on 8/3/2015.

5. 4.    (Give some details here about what exactly your complaint was regarding.)  Defendants filed complaint with the Consumer Finance Protection Bureau (hereinafter CFPB) on 8/6/2015 regarding Defendants’ rights pursuant to CFPB Consent Order against the alleged original creditor (Exhibit “A” proof of online filing) as of date of this Reply; the status of the complaint is “in progress”.

6. 5.    Defendants sent a letter of Demand for Contractual Individual Arbitration to Plaintiff on 08/7/2015 (Exhibit "B" proof of mailing) as of the date of this Reply, Plaintiff has failed to respond. (Make sure to also attach a copy of the letter you sent.)

7. 6.    Defendants sent Demand for documentation from the alleged original creditor on 8/17/2015. (Exhibit “C” for proof of mailing).  Documents requested from alleged creditor included copies of account statements, payment history from the inception of the account up-to and including the date of transfer/sale to collection, and any documentation and notification regarding Defendants’ rights to seek reimbursement pursuant to the CFPB Consent Order. As of date of this Reply, the request has gone unanswered. (Include a copy of the letter you sent.)

8. 7.    Defendants filed MOTION TO COMPEL OR STAY ARBITRATION based on the terms and conditions of the Credit Card Agreement and the SEC S-1 form Registration Statement and Prospectus Summary, an official public record that shows GE Capital Money Bank Care Credit, the alleged original creditor, has been renamed Synchrony Bank.  (State the date of filing and I would include a copy of the motion you filed.  The court should have it but this will ensure it's viewed by the judge at the time he's reviewing your opposition.)

9. 8.    Certain Defined Terms: Except as to the context may otherwise require in this prospectus, references to: “we,” “us,” “our,” and the “Company” are SYNCHRONY FINANCIAL and its subsidiaries, which together represent the businesses that historically have conducted GE’s North American retail finance business GE Consumer Finance whatever they were called is now known as Synchrony Bank pursuant to the attached United States Securities and Exchange Commission Form S-1 (Exhibit “D” as proof).

10. 9.    Defendants received Notice of Court Date on or about 08/19/2015 (Trial scheduled for 10/19/2015).



(should I keep this heading?) Legal Argument (is the statement below the legal argument?)
 

Defendants have demanded arbitration per the agreement governing this alleged debt and made application to this Court to order same. Per said agreement, and controlling statutes, these litigation proceedings have been mandatorially stayed, and plaintiff’s act of filling a granting Plaintiff's motion for summary judgment is therefore improper. (See Exhibit “A”, paragraph titled “arbitration providing”; (This is going to be the section of the agreement about arbitration.  I called it Exhibit "A" but it should be whatever exhibit letter you assign to this agreement when you attach it) also Arizona Revised Statutes 12-1502 (D). (No need to include a copy of the statute.  Citing it is sufficient)
Plaintiff’s motion for summary judgment should therefore be denied and this Court should grant defendant’s motion to compel arbitration.
 

(should I keep this heading?) Conclusion (is the statement below the proper conclusion?)

 

Plaintiff's failure to elect Defendants' election of Private Contractual Individual Arbitration, and subsequent application to this court for same compels the denial of Plaintiff's Motion for summary judgment for Defendant.

 

 

DATED this 21st day of August 2015.
 

 

______________________                                                        ______________________
Signature                                                                                    Signature

 

 

 

 

COPY of the foregoing sent this 25th day of August 2015 to:

 

 

Bursey & Associates

6740 Oracle Road, Ste 151

Tucson, AZ 85704

 

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One more thing.

I had forgotten they filed for SJ before you made you demand for arbitration so I changed some of the language around in the legal argument section to coincide.

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I'm so grateful for all your help, especially Harry, thank you! Now I'll just play wait and see. The worst that can happen is that they get a judgement and collect over time. Btw, Plaintiff filed a Motion for Telephonic Appearance of Plaintiff's Witness at the trial set for October 19, 2015. I'm thinking of filing a response to it within the 10 days timeframe. What do you guys think?

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@Panove4 - I would oppose the telephonic appearance because you can't observe the witnesses demeanor nor can you tell if they are referring to notes or being coached.

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Any suggestion as to how to word the response for objection to the Motion for Telephonic Appearance of the Plaintiff's Witness at the Trial Set for October 19, 2015?

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Any suggestion as to how to word the response for objection to the Motion for Telephonic Appearance of the Plaintiff's Witness at the Trial Set for October 19, 2015?

@Panove4 - I would oppose the telephonic appearance because you can't observe the witnesses demeanor nor can you tell if they are referring to notes or being coached.

"I object to Plaintiff's motion for telephonic witness because I will be prejudiced at trial/hearing by not being able to observe the witness's demeanor nor can I tell whether or not they are referring to notes or being coached."

 

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I thought so...thanks! Do I need citation of any sort for this? Btw, saw the below in another post here and would like to know your thoughts on it. Also, how does my Motion for Arbitration plays into all this? 

 

COMES the Defendant, appearing PRO SE to OBJECT the MOTION FOR WITNESS TELEPHONIC

 

APPEARANCE by the Plaintiff or Plaintiff’s attorney. The XXXXXX Justice Court of XXXXX County

 

specifically states on the ORDER SETTING FOR TRIAL that the court will NOT ALLOW telephonic

 

appearances for trial. Furthermore, the Defendant objects to the testimony of any witnesses by telephone.

 

The Defendant must be provided sufficient opportunity to test the credibility of the witness(s)

 

and/or the substance of their testimony. Face-to-face testimony is necessary to undo the false accuser,

 

reveal coaching, and confirm the identity of actual witness(s). The Defendant is clearly prejudiced by

 

violation of Defendants right to confrontation.  It's unfair and an extraordinary abuse of the process.

 

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I believe there is US Supreme Court case law (possibly state as well?) that mentions the demeanor, body language, and eye contact as important in determining truth in cross examination. If it were mine I would research that.

 

I wouldn't want to file an opposition to anything with no statutes, local rule or case law supporting it, unless I knew for sure it didn't exist, and had made a diligent check myself 

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@Panove4

 

Unfortunately, the AZ Crt of App held that even in a case involving involuntary treatment for mental illness, telephonic testimony did not violate the AZ Rules of Civ. Procedure.

 

https://scholar.google.com/scholar_case?case=12558387824924312375&q=telephonic+testimony&hl=en&as_sdt=4,3

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