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Arizona Suit by Midland Funding can I do a MTD with alternative Motion to Compel Arbritration

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Well of course I am new and looking for advice to how to proceed 

According to the discovery things I apparently opened a account buying Dell Computer on  August 23rd 2016 and was a resident of Texas with Dell WebBank was established on/or about 11/16/2006 and since the last payment was/on or about 4/8/2011 and charge off was on/or about 11/21/2011.

I moved from Texas around Feb 2013 I relocated to Arizona Pinal County, Arizona.

On the surface it seems I would have great chance of getting this dismissed as a 3 year SOL since I never got a "credit card" and no contract signed in Arizona.

The actual dell generic flyer type copy (not signed or even my name)  terms and conditions was all done in Texas

Language in the they provided T&C says "your use of the open-end credit offered" quoted

It also has clear arbitration in it for AAA or JAMS they filed Complaint on  August 23rd 2016  I answered it with a broad array of defenses on the form the Court provides I answered I did a general denial due to lack of information and generally denies claim I then put (1)  I thought he statutory limit has passed, (2) they fail to state a claim, they admit they are JCB and injures self so not being damaged, stature of frauds, lack of standing, insufficient specificity in pleading, failure of consideration, and proof of ownership of debt,  lack of privily and doctrine of latches.  I think I covered my defense options there and I filed a filed a separate motion for discovery at the same time.

Plaintiffs first MSJ had no supporting documents at all.

Now they produced (1) Affidavit of Indebtedness (2) Bill of Sale (3) Transaction History (4) Terms and Conditions

the generic robo signed type paralegal affidavit they always use and a  use a blank photo copied  dell 1/2011 era terms and conditions , the redacted bill of sale of a list and stuff  and their printed out of dells transaction history.  Objected to my discovery as too broad and lists me as the witness against myself. The lawyer seems to tying to sue on this as a credit card citing transactions activity  as contract since is very old and just under the six year mark if we apply the new Arizona Law, I been like a mad scientist and got ton of stuff but trying to cover all my bases. I have not done anything but study so far they sent me the forms for disclosure statement and I was working on my of motion to dismiss and studying but coming back to this site as it seemed the members here seem to have the more precise answers I need now.

On the surface it seems I have a great chance of dismissal for 3 year SOL unless the judge decides this store account is a credit card and slam me. admit the already flimsy items and get a judgment.

So I hate to waste time on a losing battle even if I can win based on the mood of a judge.

Would it be proper to file at this time a Motion to Dismiss with my arguments and authorities based on SOL or stay and compel arbitration where I am leaning to do. I think I can still address these item in arbitration with better chance if it came to that. the amount suit is $1721.78  example: Motion for Discovery or Alternative stay with Motion to Compel Arbitration

This is my warm up I think I will have another PRA one coming down the road for $6Gs later on.

any advise is welcome.. Thanks.

here is a example what I am doing so far alot of this stuff I sure you seen and maybe even suggested as sources I working on attacking the affidavit at the same time but I want the arbitration 

II. ARGUMENT

 

A. Standard of Review for Motion to Dismiss

 

The Complaint is time barred by Statute of Limitations pursuant to  AZ Rev Stat § 12-543 (1) For debt where the indebtedness is not evidenced by a contract in writing.

Statute of Limitations is Three Years.

 

Since the Plaintiff objects production as too broad and therefore cannot and/or refuses produce a signed contract or prove this or any alleged applicable terms and conditions of that credit agreement with the vital and critical personal details as to interest rates or late fees for any calculation of the "principal" amount claimed owned or so requested in Judgment or that it even has the Defendant's name and/or was signed or even commenced inside the State of Arizona pursuant to Arizona Revised Statutes §12-548 (a) which passed on April 11th 2011 in Arizona, clearly over three years from the last transaction with the credit issuer WebBank on April 8th 2011 and all activities on this account occurred in Texas.

 

Defendant observes that this meets two required conditions to eliminate consideration of this cause under Arizona Revised Statutes §12-548 is (a) the lack of a written contract executed in the State of Arizona and (b) lack of a physical card therefore AZ Rev Stat § 12-543 should govern this action. Furthermore the actual "terms and conditions" provided during discovery by the plaintiff even though does not bear Defendants name or signature does in clear language name this a open account as defined by AZ Rev Stat § 12-543

 

 DELL PREFERRED ACCOUNT CREDIT AGREEMENT

Offered by WebBank, a Utah Industrial Bank, and serviced by Dell Financial Services.

 

 Definitions.

The word “Agreement” refers to your Dell Preferred Account Credit Agreement. In this Agreement, the words “you” and “your” mean the person who applied for this Dell Preferred Account. With the exception of the arbitration

 

DELL PREFERRED ACCOUNT CREDIT AGREEMENT

 provision, the words “we”, “us”, and “our” mean WebBank, who is the lender. “Account” means your Dell Preferred Account, which will be governed by this Agreement. Dell Financial Services (“DFS”) will service your Account for WebBank.

 

Use of Your Account. Your use of the open-end credit offered pursuant to this Agreement, or its use by anyone you authorize, shall constitute acceptance of the terms of this Agreement and the arbitration provision contained in this Agreement. Your use of the Account also acknowledges that you are of legal age to enter into a binding agreement with us.

 

 

 In support we have observed that Federal law also tends to define credit "Open Accounts”. These are revolving lines of credit with varying balances.

 This is established under the Truth-in-Lending Act:
 see 15 U.S. Code § 1602 - Definitions and rules of construction (j) The terms “open end credit plan” and “open end consumer credit plan” mean a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan or open end consumer credit plan which is an open end credit plan or open end consumer credit plan within the meaning of the preceding sentence is an open end credit plan or open end consumer credit plan even if credit information is verified from time to time.

Article 2 section 25 of the Arizona Constitution states,” No bill of attainder, ex-post-facto law, or law impairing the obligation of a contract, shall ever be enacted.”

This is because all parties to a contract are presumed to be aware of the law when they enter a contract, thereby making the law part of the contract.- in SAMARITAN v. Superior Court of Arizona, 981 P. 2d 584 – Ariz: Court of Appeals, 1st Div., Dept.D 1998

 Defendant also points out this by WebBank's own definition it "is a leading provider of closed-end and revolving private-label and bank card financing programs" branded store credit account by Dell products and not a physical credit card and no credit card was ever physically issued and/or activated.

 

Therefore this account is a "Open Charge Account" per ARS definition, not a "Credit Card" account as outlined by Arizona Revised Statutes §12-548 (b). also see AZ Rev Stat § 13-2101 defined in section 13-2101, paragraph 3, subdivision (a). which states:

 "Any instrument or device, whether known as a credit card, charge card, credit plate, courtesy card or identification card or by any other name, that is issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services or anything else of value, either on credit or in possession or in consideration of an undertaking or guaranty by the issuer of the payment of a check drawn by the cardholder, on a promise to pay in part or in full therefor at a future time, whether or not all or any part of the indebtedness that is represented by the promise to make deferred payment is secured or unsecured."

 

Therefore AZ Rev Stat § 12-543 (1) Governs this Cause and it is a time-barred Complaint.

 

Plaintiff is attempting to proceed with a Plaintiff's Complaint or suing on a time-barred account, or even the threat to do so, is likely a Fair Debt Collection Practices Act violation.

 

 A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt” (15 U.S.C. § 1692(e)); see, e.g., Kimber v. Federal Financial Corporation, 668 F. Supp. 1480, 1487 (M.D. Ala. 1987) (“a debt collector’s filing of a lawsuit on a debt that appears to be time-barred, without the debt collector having first determined after a reasonable inquiry that that limitations period has been or should be tolled, is an unfair and unconscionable means of collecting the debt”).

 

Defendant's status as a person moving to this state from another state should present any burden to his defense under Statue of Limitations of either Arizona or Texas.  see  AZ Rev Stat § 12-506 (A) No action shall be maintained against a person removing to this state from another state or foreign country to recover upon an action which was barred by the law of limitations of the state or country from which he migrated.

 

AZ Rev Stat § 12-507 No demand against a person who removes to this state, incurred prior to his removal, shall be barred by the statute of limitation until he has resided in this state one year, unless barred at the time of his removal to this state by the laws of the state or country from which he migrated.

 

Defendant cites where the Court has ruled that a foreign entity like Plaintiff sues on a claim that accrued outside the state and must be commenced its within it's Statue of Limitations.

 see WINDSEARCH, INC. v. DELAFRANGE | 90 A.D.3d 1223 (2011) (where a nonresident sues on a claim that accrued outside of New York, the cause of action must be commenced within the time period provided by State's statute of limitations, as well as the statute of limitations in effect in the jurisdiction where the cause of action in fact accrued.

 see CPLR 202; Global Fin. Corp. v Triarc Corp., 93 N.Y.2d 525, 528 [1999]. Here, [90 A.D.3d 1224]  (Plaintiff's claim actually accrued in Delaware, because that is where the creditor on the account resided when it sustained any economic impact of the loss represented by what was owed on the account.) see, Portfolio Recovery Assoc., LLC v King, 14 N.Y.3d 410, 416 [2010] [internal quotation marks and citation omitted]). ( While plaintiff's Midland Funding LLC provides debt collection services. The company was incorporated in 2005 and is based in San Diego, California.  It claims to be an assignee of that legal obligation, the account was owned by a Delaware corporation when it was closed in November 2002— and the debt owed on it legally accrued. Since the assignee of such a debt "is not entitled to stand in a better position than that of its assignor" ) see, Portfolio Recovery Assoc., LLC v King, 14 NY3d at 416,  Delaware's three-year statute of limitations governs this action (see Del Code Ann, tit 10, § 8106). This action was commenced in 2017, or approximately six years after the claim accrued, and, therefore, it is barred by the Delaware statute of limitations and should be dismissed.

 

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You're under a 6 year SOL and you're going to lose if you don't get the case out of court via arbitration. 

http://www.azleg.gov/viewdocument/?docName=http://www.azleg.gov/ars/12/00548.htm

See the definition of "credit card". A Dell charge account meets the description.

http://www.azleg.gov/viewdocument/?docName=http://www.azleg.gov/ars/13/02101.htm

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Thats what I was thinking so how would I proceed with arbitration at this point?

 

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File a motion to compel "private contractual arbitration in accordance with the governing agreement". Cite a.r.s. 12-1502 as the authority for the motion. Attach the agreement and an affidavit swearing the agreement is the correct one for the underling account.  Just be sure it's the right agreement so you don't perjure yourself.

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I lived in Texas until just 3 years ago since 1980 I moved from Missouri to Houston and there to El Paso so over 20 years I suppose in Texas

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I answered it and a motion for discovery her answered it and the court sent forms for Disclosure Statement no  word of any court date I can see yet.. 

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You said the lawsuit was filed August 2016. What was going on between then and January when you filed your answer? 

You referenced an MSJ in your original post. When was that filed? Did the judge rule on it? 

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their answer to me of the notice of plaintiffs service of responses to defendants request for production is stamped Feb 22 2017 I thought i got some room to figure out my next move.

 

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Ok then. You're probably ok but it could be argued that engaging in discovery is a waiver of your right to arbitration.  I think I would withdraw your discovery requests and file the MTC arbitration.

Since they never made any meaningful response, they can't claim they would be prejudiced in the arbitration proceedings 

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here is the order it happened already

on the first round I got one package stapled together with on I was reading the stamp wrong

1 Amended Order for Alternative Service Nov 29th 2016

2 Summons Civil dated (with 20 days to answer) Aug 23 2016

3 Complaint (Contract) Fast Track 

4 Notice to Defendant (info stuff)

5 Notice to Litigants: requirements to appeal a decision of the justice of the peace 

No other documents in that one

 

I then filed already my answer and motion for discovery on Jan 31st 2017

I got next packet from plaintiff lawyer

1 Notice of Service of Plaintiffs Responses to Defendants Request for Production Feb 22nd 2017

2 Notice of Service Disclosure Statement Feb 22nd 2017

3 Disclosure Statement

4 Exibits: a: Affidavit of Indebtness b:Bill of Sale c: Transaction History d: Terms and Conditions

Then I received the civil case notice letter postdated on feb 17th with the forms for Disclosure Statements blank I have not filled anything else out yet 

I actually did not even think or even remember anything about arbitration in the Terms till the plaintiff sent me a generic copy of them in his disclosure.

 

 

 

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Demand for Arbitration Form  from JAMS should I fill that out as well or wait and simply till after i hear on the motion to compel "private contractual arbitration in accordance with the governing agreement"?  

I am glad I getting here and your assistance  I was feeling like I was spinning my wheels and getting a headache 

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finding a couple examples for the motion MTC they indicate sending a certified letter to the plaintiff in there about electing arbitration so this is the first step then is the certified letter to the plaintiff and then the file the motion with the Court should I wait a day or two or just file it the day I send the certified letter?

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ok the motion I had done at the same time as my Answer was a Request For Production I am doing a Motion to Withdraw Request For Production and simply state "Withdraw Defendant's Request for Production filed on Jan 31st 2017 due to Plaintiff's objection."

Then send the other letters certified to Midland and Plaintiff for election of arbitration by Jams

I tossed my old Terms and Conditions since is so long ago I think the one that the Plaintiff's attorney produced is the one I will use it has arbitration and looks like was printed on 1/2011 same time I had the account unless I can find another one or anyone know where I can find one for 2006 

 

 

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Yes, send a letter to plaintiff's counsel that you intend to seek an order from the court for the parties to participate in private contractual arbitration.

NO!! Don't say you're withdrawing due to plaintiff's objection. You don't need to give any reason. Just file a notice with the court and send a copy to plaintiff's counsel.  If you want to give a reason, say that you wish to pursue arbitration and you believe there may be a conflict between court discovery and the rules of arbitration. But I wouldn't even say that. You open a for for them to start making arguments that you can't make up your mind.

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yes excellent I have most this paperwork done is a small form i just edit it then and remove that part of them objecting and just say I withdraw  I take 3 copys in the morning to the Court to file and send plaintiff one..

I kept the one they produced the terms the arbitration

JAMS cost to me is only $125 on that Terms they produced they assume the rest so is less than the JAMS consumer cap of $250 if we have to go that way. I already have the form filled out for JAMS and ready.. 

then I have the others ready one for lawyer the other for JBC and copys of them for attach to the MTC later 

 

here is the letter wording i have for both I change the address from lawyer to JBC so is two letter i send them certified return mail after I file when i see they get them i go file the MTC arb right away.

 

example so far

defendant name/d address

Lawyer name/l address

 

 

 

 

______________________, 2017

Claim or Case # CVxxxxxxxx

 

 

NOTICE OF ARBITRATION ELECTION

 

 

 

Pursuant to DELL PREFERRED ACCOUNT CREDIT AGREEMENT, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, " IF EITHER PARTY CHOOSES TO ARBITRATE A CLAIM, NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH CLAIM."

The agreement further states, "The party initially requesting arbitration shall select either the American Arbitration Association ("AAA") or JAMS as the Arbitration Administrator."

As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration.

___________________________

 

 My Name

Certified Return Receipt #_________________________

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You only need to send one copy of the letter to the lawyer. Don't send anything directly to the plaintiff. Also, attach a copy of the letter to your MTC. Take 3 copies of the MTC and get all 3 stamped. File one with the court, mail one to plaintiff's attorney and keep one for yourself.

Some JDBs are whining to the court that we aren't initiating arbitration and the MTC should be denied on those grounds. I've seen the courts go along with this, so be prepared to open a case and provide proof with your reply to any such argument they may make. You only have 5 days to reply, so when I say be ready, be ready. 

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