stefeni074

Arizona Justice Court Midland Citibank elected Arbitration MTD/MTC

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I have received a summons on Dec 9th from Midland stating count 1 Breach of Contract and count 2 Unjust Enrichment. They attached an affidavit from their legal specialist that included a bill of sale, assignment and billing statement from Citibank, (Best Buy)

I did not submit an answer instead a MTD or in alternate Compel Private Arbitration with Jams also included exhibit of contract (Citibank) attachment, on the same day (Dec 24th) I sent a letter to attorneys for litigation waiver and election to arbitrate. I also sent a letter to JAMS electing arbitration with the Return Receipt from my letter to attorney.

I received an answer Jan 6th stating that the attached cardholder agreement is Not relevant to subject debt or applicable to subject debt, that it is a random document.. Also defendant has not attempted to show how alleged agreement is admissable under AZ rules of Evidence. Exhibit cannot be authenticated for admissable, without exhibit defendant has nothing to establish debt was governed by arbitration provisions.

They ask the court to strike my MTD and file an answer by a date certain at the discretion of the court.

My question is if I have 5 days to answer their response.. If so I believe it is by this Wednesday, Jan 13th. What can I do to make my exhibit work to compel an arbitration. Do I need to file an "answer" to this going back to their first complaint filed. I am uploading the case filings.

I have followed this forum for suggestions on court proceedings but at this time I need some help on what to do next? Any suggestions are appreciated.

4- Midland Resp to MTD.pdf

3- letter to execute arbitration.pdf

1-complaint.pdf

2- MTD Midland.pdf

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In reply, I would mention that 12-1502 states that all that is required is a showing by a party of an agreement to arbitrate and your motion falls squarely within this requirement. I would also prepare an affidavit to introduce the agreement under AZ Evid.R 901. Explain how you got the agreement and why it's the correct agreement for the alleged debt (incl. why the agreement says Citibank when Midland is the plaintiff).  Identify the agreement in your affidavit (Exhibit "A" or whatever) and attach it thereto. 

I would also ask for a hearing on the motion. 

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You filed a MTD and MTC at the same time.

Did you attach a card agreement ? Did you attach a notarized /sworn affidavit that the card agreement is a true copy ? If you didn't that's why they asked the court for dismissal.

Although it is not deadly to your case. File an answer (People from A should be able to chime ) I file the same MTC arbitration and also use arbitration as an affirmative defense in my answer.

This time MTC is attached to card agreement and affidavit (notarized),  filed with answer.

Also for the future if Midland did not attach a card agreement then the court must accept the one filed by an affidavit. I always prefer my opponent not filing an agreement.

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I didn't attach a Notarized or Sworn Affidavit stating the agreement was correct for the alleged debt.  

I will form an affidavit for this response, But should the response be A formal "Answer" to the original complaint or a "response" to their striking my exhibit and denying my MTD or Compel Arbitration.  Is there a format to respond to their last filing by updating my MTC to include the sworn affidavit. 

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For now file it as a reply to their response to your motion. If your motion gets denied you can then 1.) appeal the denied MTC or 2.) file an answer, as the court will order, and at the same time you can then file another motion to compel (or renew your previous one) remedying whatever reasons the court cites as its reason for the denial. 

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Ok, File a Response to the Plaintiffs Response, Striking my Motion.

In my Argument I would include my assertion that the card agreement is true and correct as exhibit A.  Then have that exhibit A notarized including the same credit card agreement.  The second as being admissible under Arizona Rules of Evidence 902. Self Authentication?    And ask for a Hearing on the motion.

 

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Harry knows the rules, I'm not in AZ .

But the response is very simple and the defective MTC is very curable by filing an affidavit that the card agreement attached as exhibit (whatever alphabet) is a true copy .

 

 

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You don't notarize the agreement itself.  You file an affidavit swearing under penalty of perjury that 'the following is true and correct to the best of your knowledge'. Then you explain why the agreement, marked as Exhibit A, is the correct agreement, and testify how you know this to be true. Have the affidavit notarized and file it and the agreement (again) with your reply to their objection to your motion to compel. 

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They are also asking to show how the agreement is admissible.. you had mentioned 901 Rules of Evid. but, would my notarized statement be self-authentication.  Does the following fit to cite for the agreement 

 

RULE 902. SELF-AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to admissibility .is not
required with respect to the following:
(1) -(11) [No change in text.]
(12) Certified Foreign Records of Regularly Conducted Activity. In a civil case,
the original or a duplicate of a foreign record of regularly conducted activity that would be
admissible under Rule 803(6) if accompanied by a written declaration by its custodian or
other qualified person certifying that the record:

(A) was made at or near the. time of the occurrence of the matters set forth by, or
from information transmitted by. a person with knowledge of those matters;

(B) was kept in the course of the regularly conducted activity; and


(C) was made by the regularly conducted activity as a regular practice.


The declaration must be signed in a manner that, if falsely made. would subject the maker
to criminal penalty under the laws of the country where the declaration is signed. A party
intending to offer a record into evidence under this paragraph must provide written notice
of that intention to all adverse parties, and must make the record and declaration available
for inspection sufficiently in advance of their offer into evidence to provide an adverse party
with a fair opportunity to challenge them.

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You can't certify under 902/803 because you don't know when the record was created, how it was kept or that it was made in accordance with any regular activity.  The most you can say is that it's the agreement you were provided when you opened the account and give an explanation for why it says Citibank where Midland is the plaintiff. As far as these things go, you are a "witness with knowledge" per 901(b )(1).  In order to challenge your sworn testimony, Midland will have to produce their own sworn testimony from from someone that knows what was provided to you when you opened the account.  Good luck to them with that. 

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The agreement that I have is not the same agreement when I opened the account but it was the last agreement while my account was still open.  I opened in 2011 and this agreement is for 2014. My last payment was March 2014.  Citibank sold my account to Midland Dec 31, 2014, as shown by their submissions in their complaint.  Will the 2014 agreement still have authority, or do I need to find a 2011 agreement.

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@howucan2

Quote

File an answer (People from A should be able to chime ) I file the same MTC arbitration and also use arbitration as an affirmative defense in my answer.

Good advice.

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No, it wasn't sent by Citibank.  I found it searching for the BestBuy, agreement, Which Citibank took over that account I think in 2013. So, it is not an original sent to me.

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Oew.... Then you can swear that the arbitration clause in that agreement is materially identical to the one you were provided when you opened the account, or to one that you received during the life of your account. Only do that if you're certain of this because if they provide an agreement that isn't the same you're going to have some 'splainin to do. 

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 "witness with knowledge" per 901(b )(1).  Does this same Rule of Evid still apply if I swear to being materially identical to one received during the lifetime of the account. 

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37 minutes ago, stefeni074 said:

The agreement that I have is not the same agreement when I opened the account but it was the last agreement while my account was still open.  I opened in 2011 and this agreement is for 2014. My last payment was March 2014.  Citibank sold my account to Midland Dec 31, 2014, as shown by their submissions in their complaint.  Will the 2014 agreement still have authority, or do I need to find a 2011 agreement.

The agreement was while the account was active and open. What else do they want for authentication ? Blood sample of Citibank's employee who mailed it? The aagreements are all on CFPB. If they want one they can find it . 

The burden  that the agreement doesn't pertain to your account is on the PLAINTIFF . They can call Citibank as witness.

Just to be on the safe side as Harry suggested Response to their Motion too. It's a two liner (See the attached Exhibit (Whatever)  authenticated credit card agreement) Make it  hard  for ML to wiggle.

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4 minutes ago, howucan2 said:

The burden  that the agreement doesn't pertain to your account is on the PLAINTIFF.

A motion to compel is supposed to be treated the same as an MSJ.  Claims and inferences are to be viewed in the light most favorable to the non-moving party.   Because OP filed the motion to compel, he/she bears the burden of proof, and equally bare assertions from both sides should be ruled in favor of Midland.  An affidavit by OP converts the agreement into admissible evidence and raises the bar that Midland must to counter with. 

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If I prove you called me ten times and I show you the evidence via my phone bill. The BURDEN is on you to prove you didn't call. It's called rebuttal.

If he attaches a card agreement with a notarized affidavit and Midland says; Oh no it's not the one. Who do you think the burden of proof falls  on Harry?  Legally not theatrically.

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Can I get some suggestions is this ok?

 

I, _________ resident of Pinal County, Arizona, certifies and says:

1.         I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of the accounts held by Defendant.  The account specifically opened with Best Buy RewardZone with the number ending in XXXX. Originally owned by HSBC, subsequently Capital One and Citibank, N.A. in September 2013, respectively. Furthermore, Citibank, N.A. being the last known owner of said account. A copy of the credit card agreement was obtained in 2013 of the referenced Best Buy account, owned at this time by Citibank, N.A., in the regular course of business, the agreement was obtained at or near the time of the act or event of Citibank, N.A. obtaining ownership of the Best Buy account ending XXXX.

2.         Attached hereto as Exhibit A, the credit card agreement between Citibank, N.A. and Defendant, ______, are true and correct copies of the original, except to the extent that confidential and privileged information is omitted or redacted and personal identifying information is omitted or redacted as required by local rules, and applicable state and federal law.

 

            I certify under penalty of perjury that the foregoing statements are true and correct.

Notary info  Etc.

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You don't want to straight up say you owe midland do you ? ;)

I use the words like " the Alleged account" or " the Alleged disputed account ".

I love the word DISPUTE, it is the reason arbitration is there b/c all credit card agreements say ; ALL CLAIMS OR DISPUTES  must be resolved by arbitration.

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Alleged disputed account is better.

Because midland does not know if you had disputed the account or amount with Citibank/Best buy or others. How do they know ? Nothing is EVER provided to JDB in regards to disputes. Not even OCs can verify disputes let a lone a junk debt buyer.

 

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11 minutes ago, howucan2 said:

If he attaches a card agreement with a notarized affidavit and Midland says; Oh no it's not the one. Who do you think the burden of proof falls  on Harry?  Legally not theatrically.

I'm assuming you just didn't read (or understand) the rest of my post...

29 minutes ago, Harry Seaward said:

...equally bare assertions from both sides should be ruled in favor of Midland.  An affidavit by OP converts the agreement into admissible evidence and raises the bar that Midland must to counter with

What I meant here is that if OP says only in the text of a motion "this is the agreement" and in response Midland says "no it isn't", the proper ruling by the court should go in Midland's favor.  If OP files then an affidavit, the "bar" has been raised and Midland must then respond with something of equal or greater significance.  Does that make sense now?

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