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  1. Hello Everyone, After I submitted my answer and motion to compel arbitration, Calvary and their attorneys are agreeing to dismiss their case against me with prejudice. I didn’t even have to initiate my arbitration case yet or pay any arbitration fees! I greatly appreciate everyone’s help and advice. I am very happy with the outcome.
    4 points
  2. Ok. Today I've got a letter from Plaintiff’s attorneys with motion to Dismiss with prejudice
    3 points
  3. In my opinion, you won. You don't have to arbitrate. PRA dismissed the case. They probably won't sue you again. If they do, it's rinse and repeat. As for stopping collection activity, you could send them a cease and desist letter, if they contact you again. I would not. I would consider this a victory, and if they contacted me again, if this were my situation, I would monitor their communications for violations of consumer laws. As for removal from your credit report, you can dispute it with the credit reporting agencies. Again, I would not. You dodged a major bullet with this lawsuit. I would accept it as the victory it is, and not try to push things.
    2 points
  4. I sent a MTC, a copy of the card agreement and a simple affidavit swearing that the card agreement was the right one to both the attorney & the court. I showed up at the trial date. The judge already had my MTC in hand, but I had extra copies of everything in hand. Midland's attorney opposed the judgement trying to use the small claims exception, even though we weren't in small claims court. The judge didn't buy it, said he thought I had a right to arbitration, and granted the MTC. The attorney wanted to speak to me in the hallway. He was very pleasant and polite, explaining how arbitration was expensive for both me and Midland, and that I could negotiate a settlement with either him or directly with Midland. I nodded and said I understood, then went on my way with his contact info. We both agreed that communication via email was best for us both - which it definitely is for me. I then filed with AAA, paid the $200 fee, and sent the documents to the attorney - via email - along with an offer to settle both the court case and the arbitration for $0 out of pocket. The opposing attorney emailed back within 24 hours with a settlement offer that stated exactly that - I sent a signed copy back along with evidence that I had dismissed the arbitration. The attorney sent a dismissal form to the court, and we were all done. I did not have any violations. The amount owed was less than what they would have spent on filing fees with AAA. Because AAA had not yet reviewed the case, they refunded the $200 I had paid. I don't think the JAMS fees are refundable. However, I do like JAMS better. They were faster the one time I used them to respond with a bill for the other side and they gave me a real person that was very responsive to my questions, even though the JDB drew them out for well over a year without paying the fees or negotiating with me for a settlement. In that case, the judge finally got tired of them constantly saying they'd arbitrate then not doing anything, and finally opposing the MTC, that he told them they better do something before the next court date. That also was settled for $0 for a mutual dismissal. I've won 3 times for cases involving anywhere from $2-6K. My upcoming one is for more than the your current case. I am sure I'll have to come out of pocket to get that one to go away, but I'm hoping for between 30 & 50% of the total. They agreed to arbitration, it's been continued for a few months, and I'm gathering funds. I figure I'm going to rinse & repeat until 7 more small ones are either settled or the statute of limitations expires. Everything you need to know is on this site and people are very helpful explaining the rules, paperwork, etc. Everything I used so far, I learned here. Make sure you read the master arbitration thread several times and read over other people's stories.
    1 point
  5. Update: JDB's lawyer called a couple weeks ago and asked if I'd be willing to settle, that they also had another account they were about to initiate a case on. We agreed after a short back and forth to a 40% settlement over 6 months for both accounts in exchange for a paid in full listing on the accounts (the other account did not have any arbitration agreement I could use). Payments were to start on the 15th, but fast forward to last night, I get another call from lawyer that they mistakenly wrote off the 2nd account as uncollectible and needed an amendment to the settlement drafted to remove that account from the agreement. They agreed to delete both accounts rather than a "paid in full" in exchange for not delaying the process to re-write a new settlement agreement. The written off account also would not be assigned to any other entity so it looks like I'm walking away with paying ~15% total of the value of those 2 accounts. At this point, I guess I just need to keep an eye out for that 2nd account and make sure it doesn't pop up again under another JDB.
    1 point
  6. Business losses and legal expenses are tax deductible. That’s one reason JDBs don’t try any harder than they do. Occasionally, there will be an attorney trying to impress his boss or make a name for himself, but most JDB attorneys are lazy.
    1 point
  7. Where exactly did you read this? Is your case in Justice Court or State Court? It makes a huge difference on the rules they must follow. They are not required to attach proof to the summons. You must get permission to do discovery if the case is in Justice Court and you must file for discovery in State Court if you want the evidence ahead of trial. No. Unfortunately neither of those are affirmative defenses to a defaulted account. There is no contractual requirement that a creditor mitigate the damages when a consumer defaults on the agreement. Likewise, there is no unjust enrichment if the account was purchased by a junk debt buyer. Under contract law they are legally entitled to collect on the entire balance due when the account was bought. They get all the rights and responsibilities of the original creditor. As has been said it is too bad you were injured in a car accident but that is not relevant to the legal situation at hand. The creditor is not required to made any deals and settlement discussions or offers are not admissible in the lawsuit. WHO is suing you? WHO is the original creditor if not the same as the entity suing? How much approximately? Which court?
    1 point
  8. I hope @texasrocker can get in on this thread. That being said, I think you are coming from this with a lot of misinformation. 1. I am not aware of any jurisdiction where a case can be thrown out for not having evidence in the summons and complaint. You need to ask for these in discovery. 2. The fact that you were in a severe car accident is sad, and I wish you a full recovery. However, it has no legal bearing on this case. 3. Failure to “work out a deal” is not admissible in court. It has no legal bearing on this case You need to tell us: Who is suing - the OC or a JDB? What law firm? who was the OC? how much ? what court ? so we can help with your strategy. I don’t know if you are judgement proof or not.
    1 point
  9. Raise arbitration as genuine issue of fact in opposition to MSJ. This worked in Ohio, the plaintiff dismissed their own case.
    1 point
  10. I don't know how arbitration works in AZ. Check AZ statutes and court cases. In Florida you have to list it as a defense in your answer. In my state VA you have to motion for Arbitration before two much litigation has occurred that's a judgement call by the Judge. Some states once you done discovery your MTC will be denied. Some CC contract will state you can motion/elect arbitration up to trial date that may help if yours state that. Since Plaintiff has filed a MSJ they are stating that all the facts have been presented and they clearly show they are entitled to a judgement without a trial. The Judge may this point rule the MTC untimely as it is unfair and a burden to the Plaintiff having expended cost and effort to get to MSJ and deny a MTC.
    1 point
  11. rule to respond: Rules for Justice Court (30 days) from service. https://govt.westlaw.com/azrules/Document/N6F4945F00DDE11E2B1BB87D5DA3B811F?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default) Other than spending hours reviewing court procedures, case law, rules of evidence etc.. or paying $5000 to an ATTY to take the case to trial what are the alternatives. 1) pay full amount 2) settle for less than full amount Arbitration helps with no. 2 case can always be settled either in courts or arbitration.
    1 point
  12. Yes it means they can ask the court or arbitrator to award attorney fees in addition to the $1000. It is not accurate. Most states have laws in place that state attorney fees must be "reasonable" for the case as tried. If you do arbitration reasonable attorney fees could be a lot more than $5k if it goes all the way through the process. If it is a case in small claims court the fees would likely be around $750. No. It creates two claims not two contracts. One account in default = One contract. The 6 year SOL on credit card debt in AZ applies. You need to file an answer and an opposition to their MSJ. You can try a MTC arbitration but CreditOne has a carve out clause in their card agreements prohibiting arbitration for debt cases filed in small claims court. You would need to be prepared that the motion would be denied and that you would then have to defend the suit.
    1 point
  13. Does the sentence include this? ”including our in- house attorneys’ costs, that we incur as a result of your default, as set forth in the Card Agreement”
    1 point
  14. @texasrocker https://www.startribune.com/in-jail-for-being-in-debt/95692619/ Although this was 10 years ago, quite a bit of the conditions which cause this issue still exist in Minnesota so yes, you can end up in jail if you don't answer a asset deposition. Other states may vary.
    1 point
  15. LVNV sent me a letter dated on the day Credit One cleared my record with Experian that they were reviewing some new information. I haven't received anything else from them ever since, so I think they found out they couldn't charge me for the debt. question: A collecting agency offered me a one time $900 payment to clear the 5k debt I had with a Chase credit card. I paid and received payment confirmation from CA. But it still shows up in my credit report that the account was unpaid. Do I dispute on Experian or do I contact the collecting agency?
    1 point
  16. I followed all the steps here to fight Midland and I won. 5/21 Case filed in Court 8/5 Personally served at my home 8/18 Filed an answer 8/19 Trial scheduled for 10/15 8/23 I filed motion to compel arbitration 9/29 Lawyer filed for summary judgement 9/30 Date scheduled for 10/8 to hear summary judgement motion 10/8 I appeared in court to respond to the summary judgement. I asked the judge to rule on my motion to compel arbitration which was filed 8/23. The judge ordered a stay on the motion and advised me to send a letter within 30 days showing I initiated arbitration. Lawyer was pissed by the way 11/3 I sent a letter to the court showing I paid $250 to JAMS to initiate arbitration 11/11 Lawyer called to ask advise they were dropping the case with prejudice and sent me a stipulation of dismissal to sign 12/8 Stipulation of dismissal with prejudice filed by the court Original debt was to PayPal for $3500
    1 point
  17. Defendant responds in opposition to Plaintiff’s Motion for Summary Judgment. For reasons stated herein, the Court should strike Plaintiff’s Motion for Summary Judgment rendering it null and void and have no effect on Defendant’s pending application to confirm private contractual arbitration per incorporated agreement attached to Defendant’s Motion to Compel Private Arbitration, (I thought you said there was an order and you already filed) and deny Plaintiff’s Motion for Summary Judgment as moot. A genuine dispute as to material facts exists regarding a number of unresolved issues. Arizona Civil Procedure § 12-1502 (D) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay. On XXXXX (date) Judge XXXX ordered matter be moved to arbitration. Order exhibit A. Per Arizona Civil Procedure § 12-1502 (D) this civil case is stayed by above order and MSJ should not be addressed until matters of arbitration are completed. Defendant has filed with AAA/JAMS case number XXXX see exhibit B Therefore, The MSJ should be stricken rendered null and void. that's about all you need IMO
    1 point
  18. @Mistymouse4590 Indeed this was settled on the 10/19. We came to a mutual settlement after a bit of back and forth countering. Looking back im not sure if this case could have went anymore perfect. Ideally we want an outcome of $0 and a mutual walk away with prejudice but every situation is gonna be a bit different. I do honestly believe had I held on just a bit longer that would have been something i could have achieved. It was long and drawn out but at the end of the day its over and I am ready to move on with my life. I followed all the advice from the members on the site and stuck with @fisthardcheese arbitration instructions exactly and it could not have went any smoother. The process should not be scary. Although it was a huge weight and worry on my shoulders everyday. If you follow the procedures and do just a little research you can beat these clowns. So long story short the JDB followed me into arb. It cost me $250 with JAMS to file and then Velocity paid $1500 to follow. After that it was up to us to mutually decide on an arbiter. There was a list of 5 arbiters sent. I sent my top 2 to the attorney and they choose the arbiter that had a 7k per day fee. There are also many other fees that can be added along the way. It was this attorneys first time in arbitration so I honestly don't think she had much knowledge of how the fees worked. After the arbiter was decided they sent Velocity a 5k retainer to get started. The other fees would have been added at the end I would assume. The lawyer took her time as she did with every thing else. They finally contacted me about a settlement. I politely declined and countered. Now, Looking back I have to say that it was likely very possible to walk away unscathed from this however I wanted it finished. They re-countered my offer and again i declined sticking with my original offer. 24 hours later confirmation email stating they had accepted my offer. The original debt would have been null to them and they would have likely payed more at the end of this than the actual starting debt had it went that far. So i doubt they made much if anything after the initial court filing and then following into arbitration. I can easily say this is a win for me. Some might feel otherwise but its what i felt best about. I could list many names here at the end but i'm sure i would forget someone. With that being said I want to thank each and every great soul that helped me along this journey. We had two cases and the first was dismissed without prejudice before entering arbitration and then this one. Absolutely could not have done this with out you great guys and gals. Lets go Brandon!
    1 point
  19. I suspect Courts in Utah are busy and waiting is hard to do in these cases. Additionally it's best you don't file a Request for Decision yourself as it may accelerate the process. Meanwhile I would go to the Courts website and find your casefile on the docket and see if a MSJ is confirmed as filed. You can also call and talk to the Court Clerk and ask. If a MSJ is filed you have a limited amount of days to respond and file your reply and supporting memorandum of points and authorities. If not, you can use the time to research and compile your Reply with Memorandum of Support. I believe their is a template above on this post. If you post a redacted copy of the MSJ we can help you reply if you need help. Also check the courts rules of procedure. Just make sure you get your opposing memorandum filed timely. See below. ~~~ "Do not file the Request to Submit for Decision until the Reply Memorandum Supporting Motion has been filed or until after the time for filing a Reply has expired. If there is no Memorandum Opposing the Motion, then file the Request to Submit for Decision after the time for filing the opposing memorandum has expired. You may request a hearing as part of the Request to Submit for Decision. A Request to Submit for Decision must be filed even if the parties stipulate to the motion".
    1 point
  20. Received a call the day before a hearing for Status conference that the Plaintiff filed a notice for dismissal. Got the letter today and it says it was dismissed without prejudice. Is that good or bad?
    1 point
  21. File everything together. Your answer The MTC A copy of the card agreement that has the arbitration provision
    1 point
  22. Update! I sent in my Answer and answered Not Enough Information to all Complaints. The Answer form that MN supplies is incredibly easy to use! I added "Lack of subject matter jurisdiction" to affirmative defenses and used @fisthardcheeses language, something like "The underlying contract stipulates an arbitration agreement...". I did not prepare or send an MTC for arb. They sent me an offer letter for $950. I called them and talked to a very nice representative: "Hey I cant verify that this debt is mine but I'm willing to settle for $300 so that neither of us has to deal with arbitration." He talked to a lawyer and they counter offered $500. I counter offered $400 and they accepted. They will send the stipulated agreement, which I will review and redline as necessary, and then send a money order. I'm damned happy to pay less than 30% to get this off my credit report. Thank you all for the great advice!
    1 point
  23. YESSSSSSS!!! CONGRATULATIONS @Girl0101!!! 🥳 (and ... you're welcome! Glad I could help! Paying it forward a bit!) THIS!! This right here!! If you read, study, follow the law, and do things right (DO NOT MISS DEADLINES!!) you have a huge, HUGE chance!! Well deserved, @Girl0101!! You beat professionals who do this for a living at their own game!! I hope you celebrate!! You deserve it! 🥳
    1 point
  24. Hi everyone, I just got my win from California today. Plaintiff filed a request for Dismissal the day after they got my mail. I sent them a Meet& Confer letter and objection attached to their Violation of CCP96 letting them know that I will object if they plan to call any witness. Without a competent witness who has personal knowledge, they cannot authenticate any documents. Im very grateful for this forum and to @calawyer@LoveIsPower@ATSmedic @HomelessInCalifornia @RyanEX@sadinca and many others as well. I just want to say that you can win too!! Just dont give up without a fight and try your best! As long as you can show them that you understand the law, you can also have your win. I have been on this forum for the past year reading and studying. It was all worth it.
    1 point
  25. One of the tactics I once used: There was a time when the arbitration agreement changed for the better after I defaulted on a card. I sent a letter to the OC, who still owned the account, CMRRR, stating that I accepted all changes to the credit card agreement. That way I was able to use the current agreement rather than the agreement in effect at the time of default. Let’s just say that bank never collected a penny from me afterwards.
    1 point
  26. CV: I don't know your family. But I would bet, given your concern for them, that theirs for you is equal to that. Based on that bet, DO NOT spend your hard earned retirement money offering payoffs to old debt. BK is an honorable solution, and once BK'ed, they cannot come after your family. If they do, your family can sue and collect, should they want to make that effort. I could, but won't, go into a rant about the number of bankruptcies in this country due to our byzantine medical industry, where healthcare is considered a profit center, rather than a right as in every civilized country in the world. Think harder about this, please. Think, and avoid your pride butting in with its opinion. If you are retired, and all your income is from retirement accounts, pensions and Social Security, you are judgment proof, anyway: even with a default judgment, creditors cannot take your income. Why would you hand it to them? I am not that much younger than you are. I started down this particular road when I realized that, of the credit cards I had, in the previous 5 years I'd paid over 2 and a half times the balance, while charging perhaps 1/10th the balance. All my payments had gone to interest, and the creative late fees that lenders were allowed to charge until two years ago. (Oh, sorry, that's late. We changed the due date this month. Oh, sorry, that's late. It came in, online, on a Sat, so even though your due date was Sun, we didn't credit it till Mon.) That'll be an extra $39, both times. Take a close look at those accounts. Think about what you paid them, month after month after month, before you had the foolishness to get gravely ill in the United States. Then, think of all of this as a business decision, not one of personal pride. If your business had incurred expenses before an economic crash, that it became unable to honor, would you have filed business bankruptcy? So would the banks, etc, holding your debt. There is no shame in making the business decision to hang on to your own assets, if the law allows you to do so.
    1 point
  27. First let me state that I have no experience with a judgment and have never dealt with an OC. Luckily so far I have only been involved with JDBs. That being said the facts still apply that they think you will never pay. Even though they win cases in court the percentage they actually collect on is probably a low number. They probably have already poured through your credit reports and employment history to figure out the odds. So I would approach them like they may never get a dime out of you. A percentage of something is better than 100% of nothing. JDBs are known for doubling and tripling the amount owed and then offer 25%, 50% or larger discounts, which might get the dollar figure back to its original amount. More than likely this extra amount was added by the law firm, which is nothing more than a CA with a diploma. If they thought the judgment was easily collectible they would offer you nothing. I would offer 10%-20% of whatever amount and see what they say. This is assuming you have the money to pay. Once again I have no experience with a situation like yours, but in the end it comes down to how much they can get out of you. The "law firm" is probably getting 30%+ of whatever they collect so all they care is that they get something. Just do whatever you feel comfortable doing and what you can afford. If they get nothing out of you even 50% of nothing is nothing. Just think like you were in their shoes. They have nothing to lose and everything to gain. More than likely they are scared you might file BK on them. Just make sure and get advice from others with experience before you proceed. Good Luck!
    1 point
  28. Its not unusual for them to keep lowering the amount. Depending on the JDB they may try and cut it in half again. They do this because any settlement is guaranteed profit. Take a 500. charge off that they paid 20.00 for. They sue this person three years later for 1,000 which includes "interest" and "fees". They offer the person a 50% discount which brings it back to the original 500. At this point they make a profit of 480.00 minus minimal cost. Even if they cut it another 50% they still pocket over 200.00 for very little work. Multiply this by thousands of accounts and it doesn't take long to make millions with this business model. In my situations I always ask myself why they would offer to settle if they had such strong cases. I have always called their bluff and let them proceed. That being said they always have a chance of winning if you do not defend yourself properly. Even when they don't have a legal case or any evidence they may win because of the way they handle legal procedure. The odds are with you if you know what you are doing. Just make sure you understand what you are supposed to do. Understanding the legal procedure of your court system is often more important than who is wrong or right. If all that mattered was the law all of these JDBs would not be in business.
    1 point
  29. While negotiating I would want to make it clear to the adverse party that I admit to owing them nothing and am merely considering making the issue go away (assuming reasonable terms) without the expense of litigating the matter and having to front the cost of an attorney to prove to the court that I owe them nothing. Negotiation is about leverage. I am not a proponent of bluffing. I'd be looking at what I can bring to the table to increase my adversary's pain and/or risk. Lacking leverage I believe the size of the check I must write will likely increase to move toward a settlement. If it is "me" there is likely a "probability of victory". No guarantees mind you. Not because it is easy or I am brilliant but because: I have nothing to lose; I won't stop until I win; I will make an appealable trial court record; I will hammer all of opposing's weaknesses such as missing elements in their causes of action; and etc. My biggest advantage is nothing to lose. It doesn't mean I am fearless or invincible but it removes the nagging questions that can distract and weaken one's self-confidence. Questions like whether the risks are too high and what will happen if I lose. With those off the table I can focus clearly on grinding opposing counsel down until they surrender or the court agrees with my view. JDBs pay 5% for alleged debt. At 10% they almost double their money assuming early acceptance of that amount. I have some idea of how I would negotiate with them if I determined it wasn't worth my trouble to litigate. If the collection of a judgment was scary to my income and asset exposure I would obviously be increasing that percentage to protect my flank. Individual situations all vary. I'd estimate the worst case scenario of losing and if that doesn't keep me awake nights I would proceed with caution and develop a game plan that takes time, resources, educational value, and risk tolerance into account. If litigation is to be my chosen path I think it would be wise to sit in on some court proceedings that are similar to the suit I am likely to face. Reading about a lawsuit and being in one are night and day experiences IMO. I would also want to know the cases opposing counsel has lost and why they lost them. I would want to know whether the court where the suit is likely to be filed has a habit of mowing down self-represented consumers in favor of JDBs or OCs. Perhaps my odds of success go up significantly in my court if I have legal representation. From my experience litigation is a lot of hard work for a self-represented. I litigate because I am sued or abused. If persons cease those actions against me then my interest in participating in ligation would decrease significantly. I understand the Credit CARD Act of 2009 placed limits on increasing interest rates retroactively on existing balances. If that happened to me I would want to review whether there was a violation of the Act and what, if any, implications that might have.
    1 point
  30. 1) NEVER TALK ON THE PHONE It depends on what your goal is. Do you want to try to never pay any money? Then have to deal with collections people and fixing credit reports on and off for years. That's what some people want, good for them. I wanted to get it done quickly, while paying 30 to 50%. Some people think this is stupid. So far I'm very happy with how things have worked out. I did use the money and I know that I owe - It's validated by me. It's been about 8 months since I first missed a payment. I've settled 4 of 5 cards (haven't gotten very far with Crap One) at less than 30% of Orignial Balances (40K) before late fees where added (that be about 25%). I talked to them on the phone at least once every month. Never communicated by mail. In the first 2-3 months, they called a lot! They just wanted a payment, I didn't have it. By the 5th month, most of them were talking settlement. 2 were settled just before Charge Off and 2 right after, with a collection agency. My credit score tanked, but it has started to move back up a little because the huge balances are are gone from my utilization. Thanks to all the people that respond on the Forum. Different people use different methods to try and get out the huge credit debt they're in. Do what works best for you.
    1 point
  31. Re: If Their attempting SJ or fighting MTC Arb Options: Argument and Opinions for consideration: [Part 2] (8) Appeal - Summary Judgment Verdict In an alternative, a party may file an appeal. Look at ‘Conley’ Pro Se filing as an example for effective process and argument(s) for an appeal: On appeal, Conley asserts that the trial court erred in granting summary judgment. See, Retail Recovery Service of NJ, Plaintiff-Appellee, v. Teresa A. Conley, Defendant-Appellant. No. 10-09-15. Court of Appeals of Ohio, Third District, Mercer County. Date of Decision: March 29, 2010. The moving party may add additional assignment of error on appeals: The ‘Conley’ appeal did not deal with Arbitration controversies. ARBITRATION; THE LOWER COURT ERRED IN DISREGARDING THE CARDHOLDER AGREEMENT OR TERMS AND CONDITIONS GOVERNING THE ALLEGED ACCOUNT. *Note: Review case law in your State or Circuit to reverse or remand argument(s) for appeal. Appeals based on filing of motions are important. IF THE MOTION IS UNTIMELY. EVEN IF GRANTED, THE ORDER WILL BE REVERSED. IF DENIED MORE THAN 20 DAYS FROM NOW, THERE WILL BE NO WAY TO APPEAL BECAUSE THAT MOTION DID NOT EXTEND YOUR TIME TO APPEAL! Pay attention to the difference between deadlines for "service" and "filing" of pleadings. Note ‘abuse of discretion’: misunderstanding the deference accorded trial court rulings and the dual standard derived from “gross abuse of descretion’. See: In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). (9) Motion to Disqualify Judge on Bias or Prejudice Motions to Disqualify Judges for Bias or Prejudice. Unless the judge is related to the Plaintiff, or is listed as a witness, the only real grounds for seeking disqualification are bias or prejudice. Before trying to disqualify any judge, read and re-read your Rules of Judicial Administration, entitled DISQUALIFICATION OF TRIAL JUDGES. Keep in mind the ’10 day rule. See, Pinnacle Ins. Co. v. Freeman, 687 So. 2d 989 (Fla. 5th DCA 1997). Note: Some judges sometimes get so annoyed with Pro Se litigants (and lawyers) that they threaten them or demean them to the point of demonstrating prejudice. See, e.g., Olszewska v. Ferro, 590 So. 2d 11 (Fla. 3d DCA 1991). If your MTC was denied, you may feel compelled to delicately conduct a sort of mini voir dire of the judge in such a case to ask if the judge has some axe to grind. First, stay clam and understand that the judge may not assess the truth of the allegations in your motion. See Nathanson v. Nathanson, 693 So. 2d 1061 (Fla. 4th DCA. 1997) A Judge must rule on the legal sufficiency of a motion to disqualify without passing on its truth or falsity, and without permitting a third party to offer testimony or explanations of the judge's conduct. If the judge takes issue with the content of the motion, that alone is grounds for disqualification. Leveritt & Assocs., P.A. v. Williamson, 698 So. 2d 1316 (Fla. 2d DCA 1997) Where the trial court improperly reviewed and attempted to rebut the factual allegations contained in petitioner's motion to disqualify, this established sufficient grounds for the trial's court disqualification. Kielbania v. Jasberg, 744 So. 2d 1027 (Fla. 4th DCA 1997) Judge, who interjected comments that verged on argument with counsel during a hearing. The judge, did not follow the directives of Fla. R. Jud. Admin. 2.160(f), (9) (A) “The Judge has a boss.” Review Canons of Judicial Conduct I will repost here for clarification. OP: “Judge was on the way to MSJ and deny our MTC Arb. Would not even give us a hearing. We prepared to file a complaint against judge, but opted to call the Chief Judge (designated chief administrator of County judges) and talked to his clerk. I was asked to send a Email or letter [case number] and details. The residing judge was called on the case.....a hearing was set.......MTC Arb granted in hearing but with stay”. In this case the judge 'turned' very consumer friendly after reported Canon violations of judicial conduct but pointed the finger to 'clerical' errors by staff in her office and promised an investigation. Take the emotions out of the complaint - just state the facts. You’re not suing a judge - you’re asking for a clarification and correction. Give the judge room for maneuvering - address your issues to purpose the opposition - the plaintiffs! The judge will find the necessary means. As for a grudge - from my perspective that judge may well end up our best advocate. The Law on Recusal of a Judge Federal law requires the automatic disqualification of a Federal judge under certain circumstances. In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S. , 114 S.Ct. 1147, 1162 (1994). Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985). Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972). (10) Amendments to Pleadings to Defeat Summary Judgment–Never Too Late! It is never too late to amend your complaint or another pleading in order to defeat a motion for summary judgment. No case cites; I only cited FRCP Rule 1.190. [Your state may be the same). The judge may not grant it on the day of SJ hearing, but you set the motion for reverse on appeal by including; Leave to amend should be freely given when justice so requires, Fla. R. Civ. P. 1.190(a), the more so when a party seeks such a privilege at or before a hearing on a motion for summary judgment." Old Republic Ins. Co. v. Wilson, 449 So. 2d 421, 422 (Fla. 3d DCA 1984)(emphasis added in language of your amendment). Check your complaint before the hearing on a Plaintiffs motion for summary judgment (even a day before), to see if there is affirmative defense you could have pled to the cause of action but did not. Did the JDB lawyer, for example, move for SJ on a Breach of Contract you could avoid by pleading ‘Failure to Pursue Alternative Dispute Resolution’ or “Failure of Condition Precedent’, in your Reply? (11) Motion for Reconsideration While the rules of civil procedure themselves do not authorize motions for rehearing directed to nonfinal orders, a trial court does have the inherent authority to reconsider and alter or retract such orders prior to the entry of final judgment. Review your states RCP’s. A motion directed to a nonfinal order is actually a "motion for reconsideration" based upon this inherent and discretionary authority of the trial court; (emphasis added) on differences between reconsideration and rehearing. Be aware of the basis for reconsideration--as well as its effect on any subsequent appeal--from the case law. See, http://findarticles.com/p/articles/mi_hb6367/is_6_83/ai_n31945803/ (12) Motion to Vacate Summary Judgment A motion to vacate judgment refers to a request that is filed before the court that entered the judgment to dismiss the judgment. Law prescribes specific time line and grounds for filing such motions. There are state specific laws on the subject which vary from state to state. (12) (a)Initiate Arbitration (then Claim Damages). If you have a claim against them, i.e. FDCPA violation, then initiate only on your claim and let them bring their claim as the RESPONDENTS. That way you are not suing yourself. Send Plaintiff CMRR letter that you have initiated. No further explanation. Request they pay as per the Arb clause - if so in language of the clause. Pay your small fee as required. Copy and 'notice' the court as required.
    1 point
  32. Re: If Their attempting SJ or fighting MTC Arb Options: Argument and Opinions for consideration: [Part 1] (1) Uniform Arbitration Act Remove to Federal Court. The Uniform Arbitration Act provides that a contractual agreement to arbitration is valid, enforceable, and irrevocable. (2) Validity of Arbitration Clause While Arbitration clause interpretation and validity in the US is not a settled legal matter. However, if the arbitration clause includes a provision which states that the arbitrator "shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability", the arbitrator decides the validity of the clause. See, SCOTUS case [Rent-A-Center, West, Inc. v. Jackson]. Interpretation of evidentiary provision in arbitration agreement should have been left to arbitrator. See, Scovill v. WSYX/ABC (6th Cir 10/06/2005). http://www.lawarbitration.net/ (3) No Summary Judgment with 'Controversy' A motion for summary judgment is generally filed with supporting evidence without controversy. If that evidence includes a contract agreement, and the validity or interpretation of the agreement becomes part of summary judgment evidence then ‘material facts exist with substantial controversy’. When a contract agreement includes an Arbitration Clause that has not been established – thus controversy, no SJ. Review your RCP [summary Judgment]. See, Case Not Fully Adjudicated on Motion - the court on a hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy. Also note, once it becomes a controversy of Jurisdiction, you have a stronger case for appeal. (4) Inconsistencies Exist in the Language of the Contract Once controversy exists, argue to the judge inconsistencies exist between an allegation in a pleading and an attached exhibit, such that the latter negates the former, the plain language of the attached document will control, and can be a basis for a substantive motion to dismiss. The language in attached contract agreement, permitting either party to exercise Arbitration, negates allegation in SJ complaint that one party (defendant) failed to invoke arbitration clause (or forfeited rights to Arbitration), warranting dismissal of the action. Striton Props., Inc. v. Jacksonville Beach, 533 So.2d 1174 (Fla. App. 1 Dist. 1988). (5) Use The ‘Plain Language’ of the Arbitration Clause The plain language of the Arbitration Clause in the contract agreement reads; “Starting An Arbitration: You or we can give written notice of a intention to begin arbitration of a Claim or Claims or to require arbitration of the other party’s Claim or Claims. This notice can be given by one party even if the other party has begun a lawsuit.” The plain language of the Arbitration Clause requires an SJ motion state with particularity how ‘the defendant failed to invoke arbitration clause’ and the grounds upon which it is based and the substantial matters of law. ‘The key is in the definition or interpretation of ‘language’ in the arbitration clause. The language may differ from agreement to agreement but are comparable and many times identical. (6) MTC Is Not Time Bared All that has been established is that ‘one party has begun a law suit’ and notice has been given to require Arbitration of the other partys Claim. The fact that a party participated in defensive pleadings, has no legal grounds upon which to claim defendant ‘failed to invoke Arbitration’ when no contractual SOL exists in the language of the Arb Clause. The failure to execute RCP [rules] may or may not exist for example: if the defendant does not file an answer before pretrial. The validity of the Arbitration Clause itself may be grounds to challenge (file), but the MTC is not time bared in its self. The language and definition ‘begun’ [a lawsuit], is vague and NOT a quantifiable definition as it was used in the context of the agreement. The contractual agreement did not define a SOL on ‘begin’ or ‘begun’. Pretrial conferences may be remanded to hearings when genuine issues of material fact exists, as to the terms or agreements of a contract. See, Mora v. Abraham Chevrolet (Florida Ct App 09/21/2005). (7) Pretrial Discovery Not Undisputed Material Fact or Burdensome The argument of unnecessary delay and expense is not supported by statute or an ‘undisputed material fact’. Pre-trial discovery is necessary and not a ‘burden’ or delay. Pre-trial identifies the cause of action. See, First City Developments of Florida, Inc. v. The Hallmark of Hollywood Condo. a$$'n, 545 So. 2d 502 (Fla. 4th DCA 1989). And , First Health Care Corp. v. Hamilton, 740 So. 2d 1189, 193 (Fla. 4th DCA 1999).
    1 point
  33. Makes sense to me. Funny thing is, the original hearing date was May 13, I showed up and the clerk called the docket. When she got to me, she said the defendant had called and asked for a continuance, as they were looking for local counsel, which the judge granted. They also had sent a Sworn Denial denying the allegetions. Why they simply didn't show today is beyond me...I was looking for a good fight too! 8) Also, TN requires CA's to obtain a license and post a bond. ANy idea what that's for?
    1 point
  34. A certain collection agency that will go nameless - but has a ton of money - for some reason, let me default them. I didn't dick around in small claims but went straight to County Court at Law. I sent out a big batch of discovery to them, and for some reason, they ignored that, too. I got $72,000.00 for violations of the FCRA (72 violations X 1,000.00) and $27,500 for libel. I'm just going to sit on this judgment until their appeal options diminish. After all, I accrue $27.00 a day in interest on it. An appeal will certainly be interesting, as I had 144 admissions deemed admitted, and they pretty much screw the collection agency in every possible way. I'll keep everyone posted as to when / how much I collect, and if I get even half, there will be plenty of beer buying for all - this place educated me and inspired me to fight back. I also think you're the kind of audience who would appreciate my web site - www.corpreform.com.
    1 point
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