AZnewbie

Sued LVNV/Guglielmo in AZ need help please

17 posts in this topic

I apologize in advance for my lack of knowledge about any of this..... Here is a summary of my situation... I live in Arizona,


At the beginning of October, I was served (it was done correctly) for credit card from Merrick Bank the debt was sold to LVNV Funding LLC who is being represented by Guglielmo & Associates in Tuscon, AZ. It is within the SOL time period. I answered within a week and received notice of pretrial conference for October 26th, I was present at the courthouse on the 26th but because of a courthouse error (they posted the wrong courtroom for my pretrial conference) I was told the judge would void the default judgement that the plaintiff's attorney had requested when I was presumed absent. And a new pretrial conference was scheduled, the new order to set began by referencing what had happened on the 26th and I somehow read it as the new pretrial conference being scheduled for 11/26 and I requested the day off work for this day. I discovered yesterday that I had read it wrong and it was on November 16th meaning I missed it. I called the courthouse and explained my situation and was told I could write a letter to the judge explaining my situation and ask for consideration. I quickly wrote up a letter and filed in with the court yesterday and mailed a copy to plaintiff's attorney. I do not have allot of hope that it will be sufficient. When I arrived home yesterday there was a motion for Judgement Pursuant to JCRP 131(a) Justice court for civil procedure 128(c) notice.


"Plaintiff moves the court for a judgement in its favor because Defendant failed to appear for and participate in the court mandated pretrial conference. Pursuant to JCRP 131(a) a party who has failed to appear at a pretrial conference is subject to penalty under Rule 127(d). JCRP 127 (d) gives the court broad discretion in terms of the appropriate sanction. Given the defendant failed to appear, Plaintiff requests that the court order judgement in its favor.


They included a verified statement of costs : Affidavit as to costs Expended or Incurred and an Affidavit of Attorney Fees. It states they are plaintiffs attorney and practice in area of collections, familiar with proceedings, that he and staff allotted time in an attempt to collect this obligation. 


They than say "Based upon the above and in addition to the current standard int his locality your affiant believes that it is reasonable to charge a contingency fee in the area of collections for AZ. The attorney fees they are asking for are $300 an hour and a contingent fee of 33% of the gross amount collected has been agreed to be paid by plaintiff, and is within the customary and reasonable fee in the area of collections for the state of Arizona. The case law they reference is Schweiger v China Doll Restaurant  138 Ariz. 183(App) 673 p.2d927 (1983). Tey attached an itemization of services totaling 2.1 hours so just over $600. 
I have never received discovery or questions from them I filed discovery on the 26th on the day of the first pretrial conference. The only thing they sent me was a form letter stating they were providing my requested documents which ended up only being account statements for 2 other peoples accounts from the same credit card company living in different states with totally different names. The original summons did not include a copy of th contract or assignment of account/purchase record. It would seem the only thing they might have are copies of monthly statements. 
I am confused because they are requesting judgement under 128 (c) 131(a) and 127(d) which it seems like by the rules of the court should be requested under section 129. And $300 an hour for attorney fees seems very high. 

I would really appreciate any help with how to move forward, thank you in advance.

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The first order of business is replying to their motion for judgment. You need to act fast on that. They cite rule 127, which does indeed grant the court with very broad discretion. You need to point out that judgment as a sanction is reserved for the most egregious offenses and is very rarely applied as a sanction for missing a court appearance. Also, courts should favor hearing cases on their merits whenever possible. (There is AZ caselaw on these very subjects but I'm not able to look for them at the moment. Search caselaw at scholar.google.com and see what you come up with.)

Next, you need to get this case out of court and into arbitration ASAP.

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

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Thank you for your response Harry Seaward 😀

I have to admit that I am completely lost on how exactly to respond to the motion for judgement. I spent hours last night trying to figure it out and I am feeling very "blonde" at the moment. I felt like everytime I thought I found what I needed I ended up going down another rabbit hole... 

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Caselaw is an endless tunnel of rabbit holes. You need to find the ones that are most applicable to your situation and use those. 

I can look around tonite when I get back home.

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Quote

"The sanction of dismissal, however, is harsh and not to be invoked except under extreme circumstances."

Buchanan v. Jimenez, 501 P. 2d 567 - Ariz: Court of Appeals, 2nd Div. 1972
https://scholar.google.com/scholar_case?case=5205010812803166711

(The following case is cited by the above case.)

Quote

"Litigation ought not be treated as a game but should be disposed of, where possible, upon its merits."

Treadaway v. Meador, 436 P. 2d 902 - Ariz: Supreme Court 1968
https://scholar.google.com/scholar_case?case=10551246047052043440

And as for attorneys' fees:
(There's too much to cite, but this case establishes a list of 7 items to consider in awarding attorneys' fees.  And Arizona Revised Statutes 12-341.01 expressly states that the award of attorneys' fees "need not equal or relate to the attorney's fees actually paid or contracted".)
Associated Indem. Corp. v. Warner, 694 P. 2d 1181 - Ariz: Supreme Court 1985
https://scholar.google.com/scholar_case?case=16674774595516168966

In your objection to plaintiff's motion for judgment/motion for continuance, explain your circumstances the same as you did here, and cite the first two cases (don't include the website address - that is only for your own reference).  Then argue that plaintiff's request of fees is excessive when compared to the standard set forth in Warner.  That's all you can do on those matters for now. If the court doesn't see it your way, then you have to consider an appeal or deal with the judgment.

As for arbitration, read the link I posted earlier.  You need to have that weapon cocked and loaded if the court does continue the case for you.  LVNV is clearly playing hardball and you can expect a Motion for Summary Judgment to be the very next thing they file.

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34 minutes ago, Harry Seaward said:

explain your circumstances the same as you did here

It's important to emphasize that in the first instance, it was mistake on the part of the court that led to missing the hearing - you don't want it to appear that you make a habit of this.

 

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First, let me say THANK YOU! I really appreciate your help. I am embarrassed to admit that I am still confused about what the difference is between the motion for judgement I received from them yesterday and the motion for summary judgement you mentioned at the end of your response. I live in a small city in Arizona not close to any law firms and the debt is about $1100 so if I am able to get a continuance and proceed to trial it would be more of an expense to travel hear and appear at trial than it was worth I think.

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3 minutes ago, Goody_Ouchless said:

It's important to emphasize that in the first instance, it was mistake on the part of the court that led to missing the hearing - you don't want it to appear that you make a habit of this.

 

Should I attach the letter from the court stating the conference had to be rescheduled because the wrong court room was posted?

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3 minutes ago, AZnewbie said:

if I am able to get a continuance and proceed to trial it would be more of an expense to travel hear and appear at trial than it was worth I think.

Sadly it doesn't work this way. The lawyer gets paid the same as if you lived on the moon.

I cannot stress enough how important it is to get your case into arbitration. If you're not going to do that, you needn't bother with responding to the current motion for judgment since you'd only be delaying the inevitable. 

A motion for summary judgment is where they present all of their evidence and ask the court to find that no reasonable jury could find in your favor. Without seeing what they filed in your case, it sounds like they are just asking the court to give them judgment based solely on your failure to show up to what is essentially a meaningless hearing. 

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1 hour ago, AZnewbie said:

Should I attach the letter from the court stating the conference had to be rescheduled because the wrong court room was posted?

Absolutely. The plaintiff will surely try to make the case that you have a history of not showing and that letter will counter his argument.

 

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I am sorry for asking so many basic questions.... but when I answer to the motion for judgement they already sent me, what form do I use to answer/respond/object?  

Again, I cannot thank you enough for your patience and help with this.

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Use MS Word or whatever to type up a response that is formatted to look like the motion you got from them.

Take 3 copies of that with you to the courthouse and get all of them time stamped by the clerk. The clerk keeps one, you keep the other and the third one goes to the lawyer for LVNV. The one you give to the clerk must be an original wet ink signature - i.e. not a copy.

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Hello, 

I have another question, I was digging through paperwork and old mail and found a letter from Guglielmo & Associates dated August 13, 2018 stating that they had been retained for the credit card account and if they did not receive a response within 30 days they would pursue legal action. Well they filed the lawsuit on August 27th which is well before the 30 day timeline they state in the letter. Is this something I can use to help me in my objection to the  motion for judgement?

Thank You in advance  for your input on this.

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That letter says nothing about waiting 30 days to sue you. It only says if you don't respond in 30 days they will assume the debt is valid. This is federally mandated language, but there is nothing stopping them from filing a lawsuit the day after they send that letter out.

While I believe it would be reversible error for the court to grant judgment solely on the grounds that you missed one court appearance, I would still respond with an objection so it's part of the record if you need to appeal. 

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