Zero Liability

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  1. Late to the party, but... for what it's worth: You really need to have cited to 12-1502 in the MTC or risk having it fall on deaf ears. Trying to invoke statute by "new argument" in a Reply memorandum could technically give the judge a reason to disregard that portion of a Reply on the basis of ARCP 7.1(a). Basically a Response argues in oppositon to a motion. The moving party may (but is not required to) Reply to rebut anything in your Response or object to evidence submitted with the Response... but the movant must limit Reply argument to the matters raised in Response. New argument is apparently not technically allowed, nor new evidence, in a Reply memorandum because it denies the non-moving party due process to respond - although there seems to be a provision to oppose new evidence submitted with a Reply (but oddly there is no provision specifically identifying new argument, there is caselaw that neither are proper on Reply). Now, I'm no expert... and NOT a lawyer... but I have just run into an issue where the "form" of the MTC was probably a factor. The "wherefore" needs to be straightforward and ask for an order for the parties to arbitrate per the agreement and for a stay of proceedings. Even then it could be fruitless, but since they rarely offer a reason behind motion rulings it's hard to say. I'm putting it out there based on my experience and observations. YMMV.
  2. Sounds like you're pretty deep down the rabbit hole already. Your affirmative defenses are not counterclaims, and if you attempted to present them as counterclaims then that's probably why they've been denied. Counterclaims are claims you're bringing against them with respect to the matter on which they are suing you. Those would likely be something akin to "I paid these original creditor and will present receipts to prove it; not only that, but I OVERPAID those people and these people now OWE ME some money if they claim to own this account now." There are other possibilities for counterclaims of how the may have been the party in the wrong - none of them seem terribly likely based on what you've said here. What you probably meant to do is include the affirmative defenses after responding to each statement of the complaint; this is required if you hope to use one of these specific defenses at some point during the entire process. You generally have to have at least some support statements that go with them that justify why you're raising these defenses. Even if you did offer them properly as affirmative defenses you'd probably still get the "see what sticks" argument unless you made a brief but sensible statement to argue why it was included. You'll want to get a disclosure sent out, even if it states you have nothing to disclose if that be the case; I believe the deadline is the 40 days you mention. Theirs should be due to come to you, as well. Hopefully that would include any agreement they say their claim is based upon, or at the least a copy of what they will claim are account statements, etc. If they include an agreement of any sort and it allows for arbitration you could very likely MTC. You can also find agreements online if they sent you a statement or indication of when the account opened and lean on whatever arbitration provision are in there as the basis for your MTC." As with most here I'm just a non-attorney who has been through the wringer, but wanted to offer what I could in response to your query.
  3. I'm relatively new to all this but wanted to offer a thought... perhaps someone else could speak to it with more certainty. EDIT: I believe I'm echoing BV80 on this, but I could be wrong. So long as somewhere in writing it is stipulated that if payment doesn't clear that the satisfaction is void... would that not cover you? I'm not certain that using "fail safe" language like that is appropriate or would hold - but it makes decent sense. Same with other actions they are required to take in the agreement if you would specify them that way... no? If x, y, and z do not happen by such and such date, no deal.
  4. Just to preface: I've lurked here for a short while working on my own cases and am by no means the most knowledgeable or experienced here. So, take what I offer with that in mind. I didn't catch what county OP is in on the device I'm using at present; if it happens to be Maricopa County, however, I wanted to add my two cents as to filing and fees. The Justice Court website (again, Maricopa County) version of the fee schedule is overly simplified. And apparently, by my own experience, applying something so basic as rules about which fees are required to file documents appears to be a challenge for clerks in at least one or two precincts. You will see Motions listed as $25. I'm pressed to point to a rule at just this moment, but I have read in very certain terms that an initial filing - no matter what it might be - should be charged as an Answer at $65. In other words, if you file and MTD under JCRCP Rule 116 and it is your first filing ever in the case, be ready to pay $65. This should be statewide, but locally in each court they seem to do things at their own discretion. If they're charging the Motion fee, or no fee at all, for an initial pleading other than an Answer... and if someone decides that isn't appropriate, such as the person scanning your documents into the record... it gets returned to you unfiled with an insert stating you didn't submit the correct fee. This is especially a headache when you go straight from the court window to the post office to mail service of your filing on the opposing party. Finding out later that your filing was rejected opens a whole new can of technicalities with respect to deadlines that apply for them to respond and even the validity of the service of your docs upon them. If you're forced to go back and file, you may have to re-serve as well. (But they already know it's coming because they got the first one.) So, for what it's worth - just be sure you pay $65 for the initial filing. You are, per the rules I believe, allowed to essentially leave money on deposit for filing fees in the event you will file by mail. The worst that can happen is they charge you incorrectly and they perhaps send you a refund - though likely not before your docs are in the record.
  5. I'm hoping one of the more experienced folks here can speak to this, then. It was my (probably underinformed) impression that if one wants attorney fees as provided under a contract that one must plead that fact. Perhaps that can be done orally, although at a settlement meeting, does that count for anything as opposed to open court? In the context of a settlement conference, my thinking is that merely mentioning the notion of fees is more a negotiation tactic... as things brought up in settlement negotiations apparently (again, if I have this correct) can't be used at trial. At very least, they could probably move for leave to amend and add them into the mix. My curiosity is piqued in that they didn't just automatically include something about the fees to justify them in the more common event of default. Perhaps you can always write a prayer for attorney fees, but only need to plead it if basing it on a contractual clause. Can anyone clarify?
  6. I was reading through, and rarely have a lot to say as I'm a relative newcomer. However, one thing that seems to be missing in the BHLM complaints I have seen is a specific demand for attorney fees. Does anyone else find this unusual? Don't they have to demand them from the outset? I suppose they could always amend - but why would this not be boilerplate so they can grab them without question on default without the need for additional paperwork? Or are they taking a percentage on these cases? There currently appears to be only one person in their Phoenix office with over 5 years experience... more usual is 2 years, one has 5 exactly, and the outlier has 9 years but was largely involved with bankruptcies it seems. Perhaps this is a novice mistake on their part and nobody has called them out on it?
  7. Since the topic of MTC Arbitration here parallels an issue I am having... and potentially the OPs issue... let me pose this question: Suppose the Complaint does not allege in any way when the alleged account was opened/created? In my case, no agreement attached and no way to determine what generic agreement online would apply without a date of agreement even vaguely referenced. Can one move to compel arbitration if one does not know of a particular set of terms and conditions that might apply to their allegations? Could one rightfully wait until disclosure/discovery to discover the agreement they are claiming and the dates in question and THEN do an MTC? It seems only rational that you can't compel something you aren't sure is provided in an alleged agreement where you don't have a copy. Or is "Defendant surmises that as many credit card agreements contain a provision for arbitration. Defendant lacks sufficient knowledge of any such agreement purported by Plaintiff to ascertain if arbitration is an available remedy..." sufficient, as (I believe) Harry suggested?
  8. And one more thing I'm looking to figure out in the short-term to help me look into things more completely. In their reply to my MTD for failure to state a claim they are saying they pleaded a Breach of Contract claim. I keep seeing the explanations of "stated" and "open" accounts. Am I correct in assuming they can "flip-flop" on this and resort to an "alternate theory" such as one of those - assuming that's what they are called, correction welcome.
  9. @Harry Seaward So, from the Rule 121 list I would do something like this? (1) A list of trial witnesses: Defendant reserves the right to call any witness or all witnesses disclosed by Plaintiff. Defendant has no witnesses to disclose at this time. Defendant reserves the right to amend this disclosure with a list of witnesses subject to ongoing discovery. (2) A list of other people with knowledge: The Defendant lacks knowledge of any other person(s) with knowledge in this matter at the time. Defendant reserves the right to amend this disclosure with a list of other people with knowledge subject to ongoing discovery. (3) Copies of exhibits and information: Defendant has no exhibits or other information to disclose at this time. Defendant reserves the right to amend this disclosure with copies of exhibits and information subject to ongoing discovery. (4) Statements: Defendant plans to offer responses to discovery requests made by Plaintiff. Defendant reserves the right to amend this disclosure with statements subject to ongoing discovery. (5) A list of other documents: Defendant has no list of other documents to disclose at this time. Defendant reserves the right to amend this disclosure with a list of other documents subject to ongoing discovery. Or would it be preferable to put nothing under Statements now and update #4 as they send me back things as they return requested discovery items? I'll look for a sample motion to continue - but what reasoning do I have to assert supporting it? Any?