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TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4164
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Good evening, Zachary, Is this a good time to present my issues? I

Resolved Question:

Good evening, Zachary,
Is this a good time to present my issues?
I have a feeling that as of now I am "surgically attached" to Just Answer... so feel free to reprimand me if I seem to cross the line... I'm by no means "fragil" and take criticism well
Submitted: 2 years ago.
Category: Legal
Expert:  TexLaw replied 2 years ago.

Hi there,

Fire away. I'm here to help.

-ZDN

Customer: replied 2 years ago.

By the way, you're a good influence on me -(and one of the benefits of being unemployed) I went to the law library of AZ. State University to read up on those rullings... California is the most liberal state (no surprise there...)


 


OK.


1) So, since I'm in "vendetta mode" - how can I get a sample form


of a malicious prosecution complaint?


 


2) In your opinion, (you mentioned that Wal-Mar always fights back)


what kind of defense would they use?


 


3) Do I mail the complaint to their Corporate office, or do I send a


Process Server to the store in question?


 


4) How much of the criminal trial (witnesses, documents) can I


present here... Or is it an entire new ball game?


 

Expert:  TexLaw replied 2 years ago.

1. Sample form of a malicious prosecution claim. The law library might have a document like this. You would want to look in a "Practice Guide". I don't have access to a form for Arizona pleading forms. However, here is what I have found:

https://www.azcourts.gov/selfservicecenter/SelfServiceForms.aspx#Appeals

The above link leads to a page that has self-help forms on it. You will need fill out a civil cover sheet (state wide forms) and use the following complaint form:

https://www.azcourts.gov/Portals/34/Forms/Civil/Civil_Complaint.pdf. You are suing for the tort of malicious prosecution.

Another way to do this is to follow this form (I'm adding in claims against the Bank too for good measure...you might as well sue them too for their part in this, the below claims are what I could think of that might potentially lead to something):

Use the heading from the Civil complaint form above with the name of the parties on the left and then you have the following sections:

1. Parties

Plaintif is ______ and resides at _______.

Defendant is WalMart __________(corporate title) and may be served with process by serving their registered agent for service of process at _________________(contact the secretary of state's office to find this information).

Defendant is Bank ________ (same info type needed as with Walmart

2. Venue and Jurisdiction is proper under the laws of the State of Arizona as all the witnesses regarding this action reside or otherwise do business in ______________(city and county).

3. Facts

Give a description of the facts (short and sweet)

4. Malicious Prosecution

The facts as stated above support Plaintiff's claim for Malicious Prosecution against Defendant Walmart. Defendant Walmart(1) instituted a criminal prosecution by filing false charges which was (2) motivated by malice, (3) begun without probable cause, (4) terminated in plaintiff's favor and (5) damaged plaintiff.

5. Negligence

The facts stated above support Plaintiff's claim for Negligence against Defendant Bank. Defendant Bank owed a duty to Plaintiff and breached that duty by providing false information regarding Plaintiff's checking account. This breach of duty proximately caused Plaintiff damages.

6. Violation of the Consumer Fraud Act

Defendant Bank's false testimony regaridng Plaintiff's account violates the Arizona Consumer Fraud Act §§ 44-1521 through 44-1534 (2003 & Supp. 2010), as the testimony was a misrepresentation made in connection with the offer of services and was the proximate cause of injury to the Plaintiff.

7. Damages

This is where you will have problems, but a general statement that it has caused you an actual monetary loss in addition to mental anguish.

8 Conclusion

Wherefore, premises considered Plaintiff requests that these Defendants be served with process, required to answer herein, and after a trial of this matter be found liable on all causes of action and that Plaintiff receive all relief to which Plaintiff is justly entitled.

2 Walmart's Defense.

I think they will try to state that they had reasonable probable cause to press the hot check claim, and then will blame it on a computer glich or innocent record keeping error. You will have to counter that they have a hire standard of care and that this is exactly what does NOT constitute probable cause.

3. You have to serve their "registered agent for service of process". You have to contact the AZ secretary of state corporations section to get this information.

4. Evidence to present. This is a really really complicated question. Just get through the filing of the lawsuit and then we move to "discovery" where you gather the evidence, then we discuss what evidence you need to present. But in its essence, you ahve to present evidence to support each and every element of your claims. The elements are stated in the above form under the section for each claim.

-ZDN

Customer: replied 2 years ago.

You're a veteran attorney (I read your bio...) so it's all routine to you; for me, however, fighting back is intoxicating. I think self-defense is a natural reaction for all people.


Neither Wal-Mart or the bank have a collective "leg" to stand on. I have evidence to support every charge (or element as you call it.) Nor can they pass around the "blame card". (Well, they can could but I can't see how they can get away with it. Since they sent people to the criminal trial who swore that I did it.) I am getting ahead of myself.......


these people are so underhanded nothing will surprise me.


 


So much venting... I'm begining to sympathize (a little) with some of the lawyers I met in Phoenix...


 


In actuality, the 2 complaints are similar with the exception of some minor variations, correct?


 


If so, I'll be heading to the law library in the morning (with my camping gear...)


 

Expert:  TexLaw replied 2 years ago.

Hi,

The claims are all very similar because they come from the "same transaction and occurrence". However, since WalMart pressed the charges, that subjects them to the malicious prosecution claim. Because your bank provided false information which potentially can be linked to causing you damages and they owe you a duty as your bank, they are exposed to negligence claims and potentially a fraud claim under the Consumer Fraud Act.

Good Luck at the Law Library.

Please rate my answer positively.

Thanks,

ZDN

TexLaw, Attorney
Category: Legal
Satisfied Customers: 4164
Experience: Lead trial/International commercial attorney licensed 11 yrs
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