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  1. #1
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    Default How to Change an Inconvenient Court Date

    My question involves collection proceedings in the State of: Arizona

    I was served with a lawsuit from a junk debt buyer(Midland Funding). Case was filed in November of last year, but they could not serve me as I am never home. Served by posting on door on January 4th. In December we bought a manufactured home in Pennsylvania and signed a lease for the lot it is on in it's community. That took effect on Dec 28th of last year. I am having repairs and upgrades done and finishing business here and planned on moving in early April, so now we are paying for 2 homes. I filed answer to suit and they set the court date all the way out to mid June.

    I filed a motion today to move up date or have the venue changed as well as a change of address form for our new address in Pennsylvania, but mentioned in motion we were not moving until April 8th. Once again Junk Debt Buyer filed on old debt (it is within statute of limitations). I am confident we will win the case if I can get to trial (It is not my account, so they will have no contract I signed and no one from the original creditor will show up to present any paperwork), but do not want to have to travel back to Arizona for a suit. We can not afford to keep paying on both homes through June. What are my options / rights. Amount is too small to hire an attorney. ($3000)

  2. #2
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    Default Re: How to Change an Inconvenient Court Date

    Quote Quoting lsame
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    I filed a motion today to move up date or have the venue changed...
    A court of one state can't "change venue" to a different state. It sounds like the creditor sued in the proper state and court, and you have admitted to the court that Arizona is your state of domicile through April 8, so I'm not seeing a reason why the court would find that it lacks jurisdiction or is the wrong venue. Depending upon the court's schedule and policies, the availability of opposing counsel, and what type of hearing we're talking about, perhaps you'll be lucky and have things wrapped up before you move.
    Quote Quoting lsame
    What are my options / rights.
    Start researching the summary disposition process for the court, and consider bringing a motion for summary disposition that would resolve the case in advance of trial. For example, if discovery is permitted by your court, seek the documents that would substantiate the collector's right to enforce the debt and, should they be unable to produce it, use that failure as a basis for arguing that they lack standing. (In some courts, such as small claims court or municipal courts, some states don't allow discovery, limit discovery, or permit discovery only by leave of the court.)

  3. #3
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    Default Re: How to Change an Inconvenient Court Date

    Quote Quoting Mr. Knowitall
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    A court of one state can't "change venue" to a different state. It sounds like the creditor sued in the proper state and court, and you have admitted to the court that Arizona is your state of domicile through April 8, so I'm not seeing a reason why the court would find that it lacks jurisdiction or is the wrong venue. Depending upon the court's schedule and policies, the availability of opposing counsel, and what type of hearing we're talking about, perhaps you'll be lucky and have things wrapped up before you move.

    Start researching the summary disposition process for the court, and consider bringing a motion for summary disposition that would resolve the case in advance of trial. For example, if discovery is permitted by your court, seek the documents that would substantiate the collector's right to enforce the debt and, should they be unable to produce it, use that failure as a basis for arguing that they lack standing. (In some courts, such as small claims court or municipal courts, some states don't allow discovery, limit discovery, or permit discovery only by leave of the court.)
    After a lot of reading I have found that Midland can not introduce any evidence from the company they bought debt from unless someone from that company is there to "validate" the document either by first hand knowledge or over-seeing of the process. This protects consumers from having evidence "generated" against them (Rules of Evidence regarding hearsay). Midland pay 3 cents on the dollar to buy debts and the original creditor NEVER shows at these proceedings. If they provide no witnesses and have no documents that can be submitted to a case they brought before the court, would I have a chance to get a judgement for double legal costs in accordance with Arizona Law (http://www.azleg.state.az.us/legtext...ls/hb2053p.htm). If I can recover damages, I would fly back to defend myself.

  4. #4
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    Default Re: How to Change an Inconvenient Court Date

    I expect that they would attempt to introduce a contract assigning the debt to them under Arizona Rule of Evidence, Sec. 803(6), which provides that the admission of business records or reports is not barred by the hearsay rule if (a) the records are made by a person with first hand knowledge acquired in the course of a regularly conducted business activity, (b) are kept entirely in the course of that business activity, pursuant to a regular practice of that business activity, and (c) are introduced through a custodian. If you have found authority that requires more, please share it. Given the abuses of recent years, I would not be particularly surprised if courts or legislators are taking a harder look at this type of issue. But in general, having the custodian verify the business record is not particularly difficult for the creditor - if it chooses to incur that expense (if they have to fly the custodian in from another state, put the person up in a hotel, provide meals... not likely for $3k). But it really only becomes an issue if the case goes to trial.

    Frivolous actions? In my experience courts are loathe to declare actions "frivolous" even when they should, but assuming that you convince the court that the action is frivolous, you would be looking to double what taxable cost? If you represent yourself, there's no attorney fee. If you are the defendant, there's no filing fee or fee for service of process. Taxable copying costs and motion fees tend to be modest....

  5. #5
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    Default Re: How to Change an Inconvenient Court Date

    Quote Quoting Mr. Knowitall
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    I expect that they would attempt to introduce a contract assigning the debt to them under Arizona Rule of Evidence, Sec. 803(6), which provides that the admission of business records or reports is not barred by the hearsay rule if (a) the records are made by a person with first hand knowledge acquired in the course of a regularly conducted business activity, (b) are kept entirely in the course of that business activity, pursuant to a regular practice of that business activity, and (c) are introduced through a custodian. ....
    It also says "or by certification that complies with Rule 902(11).". That gets confusing because it basically repeats all of the same criteria. What constitutes "Certified domestic records". Does it still have to be presented by a "custodian" and does that person have to be a custodian from the original creditor? I have denied that this debt is mine and I have asked them to provide documentation 3 times and they still have not done so. They sent copies of bills from an address I never lived at. This was never on my credit and now Midland and original company are on there and it is causing problems with us getting moved into our retirement home.

  6. #6
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    Default Re: How to Change an Inconvenient Court Date

    Rule 902(11) provides a mechanism for authenticating records without producing the custodian, but requires notice and an opportunity for the other party to object.

    - - - Updated - - -

    Rule 902(11) provides a mechanism for authenticating records without producing the custodian, but requires notice and an opportunity for the other party to object.

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