Motions must be filed and served 16 COURT DAYS before the hearing. Add 5 calendar days if served by personal mail. Proof of service must be filed 5 court days before the hearing.
So I would look to set the hearing out far enough that it is before your court date but with enough time to file and serve a motion.
@elansus You were given leave by the magistrate at a hearing to file your DEFENDANT'S REPLY TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND STAY THE CASE PENDING ARBITRATION. If you read MikeB35's threads, the rules that govern a reply to a response are discussed. Normally, you'd have to file a motion for leave (aka permission) to file a reply brief. (IANAL) A reply is limited to addressing only those new issues raised by Plaintiff's Memorandum in Opposition that you did not argue or raise already in your Motion to Compel. You aren't re-arguing what you've already argued and supported in your MTC. Read their Oppo response to see what their main arguments are. You make your arguments to refute theirs and cite the case record, court rules and/or laws that support your arguments. I already pointed out some of these I've noticed in my posts above, with citations from the record. If you can pull a rough draft together, we can refine it here. IMO Here are the main opposition arguments they've raised:
I.) "As the Defendant has failed to assert a basis for use of the Arbitration provision in the Card Member agreement, as set forth more fully herein, this case is not subject to arbitration."
II.) "The Defendant alleges that the terms and conditions governing the account contain an arbitration provision to which the parties are bound. The Defendant is mistaken."
III.) "Importantly, the Defendant denies (1) entering into a credit agreement with Plaintiff, (2) breaching the terms of the credit card agreement, and (3) the balance sought. See Plaintiff's Complaint filed September 16,2019, at Para. No.: 3."
IV.) "The Defendant cannot assert a right under a contract in which he claims not to be a party. Likewise, any reliance by the Defendant on the terms and conditions governing the account is misplaced and does not apply to the Defendant as he alleges he did not enter into a credit agreement with Plaintiff."
V.) "His denials in his answer are then a purposeful attempt to mislead the Court."
Dgree - Thanks for your input. I'll make a separate doc for the points & authorities.
Do you know where I can find information on the "timing" of the hearing on the motion ? The Court Reservation System will let me pick any date, but I am thinking this motion should be in the hands of all parties at least 30 days before the hearing date. Or is it 45 days ? and do I need to allow an extra five days due to it being mailed ?
As it stands now, my hearing date is during the week between Christmas and New Years.
A few days ago I was notified by one of the CRAs that one of my creditors is reporting me as deceased. I know this is an illegal collection tactic, since the SOL is nearly out, they expect me to show up, provide a bunch of documentation to show I am alive while I complain about it so they can use it to sue me.
So I pulled my credit report and for starters, I cannot get my FICO score because of my "deceased" status.
The DF is not even consistent, since it reports I am deceased on some accounts and not others.
What is the process here? Do I dispute the information with the credit bureaus to trigger some sort of bogus verification from the DF? Or do I go for a removal, since the information is clearly inaccurate, cannot be trusted.
A consumer statement might be necessary to clarify things. I know a statement is useless in calculating scores, but it would be hard for the bureau to allege they did not know I was alive and failed to investigate.
Do the credit bureaus have any liability? Can they change someone's life/death status on the say so of a DF without an official death certificate?
or can they hide under the claim they are just parroting what someone else reported to them (even if they have reason to question its accuracy)?