HellGato

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HellGato last won the day on November 3 2017

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About HellGato

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  1. No I had posted them as ideas for feedback in the end I assumed and wrongfully so the judge would know the correct stature or has twisted this up so is sounds like a simple motion to dismiss which of course it is not was motion to compel and asked for dismissal or a stay at the courts own digression. In the end I did not address his motion to dismiss the appeal since I thought it was moot. I am leaning toward the motion for reconsideration and pointing these items out clearly as I can in that motion. I may be able to do this one in time and file it monday or tuesday.
  2. maybe a motion for reconsideration citing the statues they should have followed first if i do it swiftly enough and special action if that does not work idk https://govt.westlaw.com/azrules/Document/ND369EAA03FB211E4B4D7C67CCE44C05C?viewType=FullText&originationContext=documenttoc&transitionType=DocumentItem&contextData=(sc.Default)
  3. I would like to try it but how much would a special action proceeding cost it is the same as the filing fee i already paid for appealing? I know if I prevail I should get that back and I would like to have them follow Statute. I paid $292 to file the appeal and I would be prepared to file that amount again or something close to that if I had some help with a concise special action motion.
  4. It appears so they are taking zombie debt collector creditor friendly to a whole new level
  5. here is the arb clause off the terms and conditions that the plaintiff thoughtfully provided for me.. (a) THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM RELATING TO YOUR ACCOUNT MAY BE RESOLVED BY BINDING ARBITRATION. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT, AND ARBITRATION DECISIONS ARE SUBJECT TO VERY LIMITED REVIEW. CLAIMS MAY BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS. IF EITHER PARTY CHOOSES TO ARBITRATE A CLAIM, NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH CLAIM. (b) THE LAWS OF THE UNITED STATES OF AMERICA, INCLUDING THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTIONS 1-16 (THE "FAA"), AND THE LAWS OF THE STATE OF UTAH APPLY TO AND GOVERN THIS AGREEMENT AND YOUR USE OF YOUR ACCOUNT. (c) "The party initially requesting arbitration shall select either the American Arbitration Association ("AAA") or JAMS as the Arbitration Administrator."
  6. No I was going to but I got confused who to send it to since the lawyer filed his in Justice Court I assumed they would know the law already
  7. I did submit a motion to compel arbitration MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE STAY PROCEEDINGS PENDING ARBITRATION
  8. Update on my appeal to the superior court apparently they just followed the plaintiffs motion to dismiss my appeal due to not a final judgement they did not do any homework apparently and find that that the denial of a motion to compel arbitration is substantively appealable. A.R.S. ยง12-2101.001(A)(1). see US Insulation, Inc. v. Hilro Const. Co., 705 P. 2d 490 - Ariz: Court of Appeals, 1st Div., Dept. A 1985 they denied it on lack of a final judgement and that I did not respond to the plaintiffs motion to dismiss since I assumed they should know.. Here is what the ruling says: This is an appeal of a order of the Apache Junction Justice Court denying a motion to dismiss foiled by the defendant. The motion alleges that the contract for the account at issue provides for mandatory arbitration at the election of any party. The creditor's response does not deny that the arbitration clause exists but clime that under the circumstances of this case it is waived under the terms of the contract or should not be honored by the court. After a hearing on the matter, the trial court denied the motion to dismiss and the defendant files a timely appeal. The plaintiff has sought to dismiss the appeal, claiming that the order of the Justice Court is not a appealable order under ARS 12-2101. The defendant has not responded to the motion of the plaintiff. Appeals form Justice Court to the Superior Court are governed by ARS 22-261 which gives the court jurisdiction to review any final judgement of a justice court. The authority for establishing procedures relating to appeals are authorized to be set by the Arizona Supreme Court. ARS 22-262. Rule 1, Superior Court Rules of Appellate Procedure-Civil defines a engry of judgement as a unsigned minute entry order of a Justice of the Peace denying a motion to dismiss is a final judgement under ARS 22-261. The order denying a motion to dismiss is not a final order of the court. If the plaintiff wins a final judgement, the defendant may appeal. This court lacks authority to decide the issue on direct appeal at this time. IT IS HEREBY ORDERED dismissing eh defendants appeal and remanding this matter to the trial court for further proceedings. So this is getting very expensive to defend does this mean if I lost this appeal at this time I have to repay all over again the costs I just paid to appeal when the court awards a judgement against me? Will I have to repay the appeal costs again? Should I try to settle the Jams and two times paying a appeal i could have paid most the junk debt. LOL Thanks for any advise.
  9. I would have preferred to arbitrate as I feel the scales of Justice are weighed against the consumer in these type of junk debt suits but is better than a full judgement and court costs and lawyer fees tacked on. I just simply could not find a terms and conditions to fit this situation in time. I personally appreciate all the advice and hard work you guys give us in our cases.. I have one more ongoing and we see how it goes .. Thanks everyone!
  10. Thought I would up date this thread.. I still never hear anything about the terms and conditions for this loan and I simply decided to settle the loan for a little over a third of it.. Lesson learned be sure your terms and conditions match your account close as you can before you file a MTC. My other MTC is in appeals court now and we see how that proceeds.. Thanks for the help guys.
  11. Interesting update I am still awaiting the Terms and Conditions but yesterday I personally went to the OneMain Financial office in Mesa .. there the girl helped me by making 3 calls into her company departments but in the end they were unable to provide me any terms and conditions and referred me to CACH LLC with a phone number.. during her talks I overhear her tell the party on the other end that the loan I had was something called a Synchrony loan and was written off.. She concluded by telling me they do not have anything left of the loan after it is sold. Only CACH would have the contract or terms and conditions. I did notice something I did not catch before.. Plaintiff lawyer in her objection to my MTC states quote "First, the account at issue is in this case is a consumer loan with Citifinancial, Inc. The agreement attached to Defendant's Motion is a credit card agreement with Citibank (South Dakota), N.A. While the two entities may be connected in some way, they are not the same." Unquote However attached to her original complaint is a signed affidavit of a employee in Missouri who has business knowledge of and access to business records of One Main Financial and prepared and forwarded to CACH. However in this signed and submitted affidavit the employee claims Quote "I am a employee of Citibank, N.A. ("Citibank") a national bank located in Sioux Falls, South Dakota, and I am authorized to make this affidavit." unqoute So the plaintiff lawyers is arguing my terms and conditions cannot be for my account since it is for CitiFinancial inc who owns the loan and not possibly Citibank south dakota as my included terms and conditions were from, but on the other hand slip in to establish the chain of successor in interest an affidavit from a employee of Citibank wonder how I can use this to my advantage. this case is a mess and not sure how I gonna get it untangled
  12. excellent points I think I will even though i have withdrawn the Motion the courts website shows the MTC is there will file a Opposition to MTD and bring up these excellent points.. Plaintiff is claiming that CitiFinancial is the OC but we know is OneMain so I can bring that up too. The key now is the Terms and Conditions I am waiting now for them.
  13. Thanks for the response I called them today and they told me I can ask to amend it or withdraw it and resubmit it but to make a note or motion what I am asking to do. they have a one page form generic called Motion / Pleading kinda fill in the blanks thing. I simply am asking for a Motion to Withdraw Motion to Compel Arbitration. They say they actually don't run across that alot, so they are unsure what procedure I need to use. Most times they say people or lawyers simply ask to correct the documents. I will know more when I go there this afternoon. I simply putting on the form and keep it simple and to the point. I would like the court to: Allow Defendant to withdraw Motion to Compel Private Contractual Arbitration and Dismiss Or in the Alternative Stay Proceedings Pending Arbitration , due to Defendant's discovery of errors in the drafting the Motion and its supporting documentation. I also called JAMS and told my case worker there who is assigned to the Demand and told him the problem and he said is fine I can keep the demand open and request the correct terms and conditions from the original creditor he told me to email my intentions to the plaintiffs lawyer which i did with a email to him and cced to the lawyer with copies of the letters sent to Citifinancial and OneMain. I go this afternoon to the Court to submit the motion they or get the other motion and withdraw it. So actually the lawyer did me a favor with the motion to dismiss it and pointing it out to me this early in the case. also if I do choose to try to settle it gives me more leverage in any negotiations. I may offer 1/4 of it to terminate the proceedings now and see how they respond. I keep everything updated and learned a valuable lesson in this one. Thanks again.