Hello everyone, I need someone help, more than anything I’m scared for what could come from this. I received a letter from Winn Law Group where I’m assuming they’re representing Cavalry SPV. The letter says “Notice of Intention to File Litigation and Incur Court Costs and Legal Fees” doesn’t have a date for me to respond back by or anything. That use to be a Citibank account and has been passed around for close to 4 years now but since Cavalry bought it I can’t see when was the last time I actually made a payment when it was still Citibank.
any help would help and I would really appreciate it
@WonderingInWI I don't know if this would work or not. You might research judicial notice rules and how to formally request it.
You may be able to request the magistrate take judicial notice of the fact that arbitration has been granted in your court, without him using the ruling as the fact. See if you can request a certified copy of the judge's decision in your appealed case from your court. While the court may not technically be able to take notice of the ruling itself under these rules, once the magistrate reads it, it's hard to unring the bell. He'll see that he was overruled without you having to say so in open court. Just my thoughts to explore the possibility. (IANAL)
My best guess is: this one.
And, either way, I fully expect the commissioner will rule against me. I'll appeal and request a trial de novo.
However, because you are familiar with the venue, I am wondering what your take is on "small claims" vs. "circuit court."
Because the arb clause I am working with is one with Citi's cut out for small claims court, I am preparing for the plaintiff to argue that against my MTC. My plan is to argue that the case is no longer in small claims and is now in circuit court. I am at a loss to find anything that specifically bolsters this line of reasoning.
When there is a predetermined remedy or sanction for the failure to comply with a court order to arbitrate, it is usually limited to dismissal of the action or the dissolution of any stay.
Which one of these is prescribed is often dependent on which party moved to compel and on which party the court placed the burden to initiate. This is far more common in federal court. It is much less common in state courts, although it did happen in Bentrud.
A predetermined remedy is what helped sink Bentrud's ship;
Bentrud filed with AAA, AAA initially declined to take the arbitration. The thirty days elapsed and the stay dissolved and then Capital One filed another summary judgment motion. Eventually the court extended the time for Bentrud to initiate.
Bentrud probably would have been much better off without any predetermined remedy. Even though it was hardly his fault that Capital One was not in compliance with the AAA.
Starting next year, courts in California will have more power to enforce remedies and sanctions.