Expert: Creditwrench - 10/2/2008

Question
QUESTION: Hi There:

I live in Florida. The alleged credit card debt was initiated in Massachusetts. My question is; under my credit card agreement under "Applicable Law" This Agreement and your Account will be governed by federal law, and the laws of Arizona, whether or not you live in Arizona and whether or not your Account is used outside of Arizona. You agree that:(1) this Agreement is entered into in Arizona; (2) all credit under this Agreement will be extended from Arizona; and (3) all credit extended under this Agreement is  subject to, and governed by, Section 44-1205(C) of Arizona Revised Statutes. All terms and conditions of this Agreement (including Returned Check Charge and Over Limit Change provisions) are deemed to be material to a determination of the finance charge.

My argument would be to dismiss this law suit due to this debt is pass the SOL period. Since Arizona Open accounts is 3 yrs. Do you think this argument will work?

My second argument would be that the debt amount is incorrect and I would then request a original application with my signed signature. I know the amount is incorrect and read some where that it's illegal for them to state an amount this is false; is that true?

My last question is I received another letter from the same Attorney, same Case No. but for a larger amount. Do you think their falsifying their documents?

Thank you so much for your time and any response that you can give me is so much appreciated.

Sincerely,
Guest101

ANSWER: Will your SOL argument work? Probably not unless you really know how to make it stick. Most judges simply won't want to hear it first of all because if that argument were to be accepted they would just about have to go to school all over again. It isn't just the SOL argument that can be used against plaintiffs. There are other ramifications and arguments that can be used as well if judges accept that argument. So you are likely to get denied even though there is a fair amount of case law to support your argument. As a result I would guess that you will not only need to know how to argue that point but how to force the judge to accept it whether he wants to or not. Be aware that in order to prevail you may have to take it to the appellate level or even higher. If you are willing to do that then I'd say you have a pretty fair chance. I am aware of an ongoing Florida case that is currently being decided by the judge who took it under advisement and is studying the matter. That person, a student of mine based his argument on another Florida case against Capital One wherein Cap One lost the case argued on the same grounds. The problem is that the first case was also decided in another district court in Florida so it is not a compulsary case.

There is another case that I am aware of that was ruled on in the 10th Circuit court of appeals. That case is not exactly the same but definitely similar and could be cited as well. Once again, however, rulings of the 10th circuit would not be compulsary in your state so all of the cases could only be advisory cases. They might help and they might not. You might very well have to take it all the way to your circuit court of appeals too. I would very deeply appreciate your keeping me abreast of what happens if you do argue it.

Then you ask about getting the original agreement to see if all the charges are allowable under the terms and conditions of the agreement. Another excellent argument that should be vital to the outcome of the case but again you may have to put up a hard fight to get that accomplished.

Are they falsifying their documents to get more money? Most likely they are.

Again, I think your arguments have much merit but trying to get a judge to agree with you isn't likely to be easy unless you know how to argue the case well and be prepared to back it up with further action if things don't go well.

Please keep me posted as your situation progresses.





---------- FOLLOW-UP ----------

QUESTION: Thank you so much for the quick response, I greatly appreciate it! I will be going to court tomorrow, but it not going to be in front of a judge it will be in front of a mediator and other side will be phoning in. How do you think I should proceed; should I just blankly tell them that I wish for them to dismiss their case because the SOL has passed and they falsified their documents (btw what are the legal terms I should use?). I know it's my debt but the amount is incorrect. I don't want to say too much but I want them to know that they are documenting false numbers. I will keep you up to date on my progresses. You've been so helpful with your response; I greatly appreciate it.

Guest101

ANSWER: Mediation is nothing more or less than arbitration and I don't like either one because both of them deny important due process of law rights that can be had in a regular court setting. Most mediation forums that are court ordered can be declined

I would tell the mediator that you want a full court hearing on the merits of the case. In most court systems they have to grant you a hearing in front of a judge if you refuse to mediate. Once in front of a judge you can use your discovery tools and much more in your defense.

I would also object to the other side phoning in because you can't put them on the witness chair and examine them personally. You have no actual idea who might really be on the other end of that phone. Might be the plaintiff, might be the lawyer or whoever. Not a good idea.

The fact of documenting false numbers is not a winning argument in either setting. Might get you out a little cheaper but that should not be your goal. Your goal should be to not only beat the case entirely but then go on to make them get rid of the debt entirely, take it off your credit reports and pay you instead of you paying them.

Yes, that can be done and while it isn't necessarily a lark in the park it is being done all the time by my students and you can tool.

All you have to do is prove that they are providing false and misleading information or have violated the law in some other way and you have yourself a win in federal court.



---------- FOLLOW-UP ----------

QUESTION: Thank you for your prompt answers!

My mediation hearing is scheduled tomorrow. Is it to late to request the full hearing and object to the other side phoning in? I know I'm a little late in this process. Can I just go to court tomorrow and request those two options to the mediator? Your responses made me more confident in myself; Thank you! I figure whether I win or lose at least I tried! Can you suggest any links for me to read up on to win my case. I know nothing about laws but I'm willing to fight my case as long I have all my ducks in a row.

Thank you so much!
Guest101

Answer
Yes, all you have to do is show up in court and demand that your case be heard in a trial before a judge. That should get the job done for you.

a link? yes, read the images in my answers to you and you will have so many links you won't know what to do with all of them. Information overload for sure!!!

In order to get all your ducks in a row and have a fighting chance you will need to become a student. That's what I do is teach people how to first of all get all the ducks then get them all lined up in a row.